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RESOLUTION OF THE PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 1
Moscow January 17, 1997
On the practice of application by courts of legislation on liability for banditry
In connection with the issues that arise for the courts when applying legislation providing for liability for banditry, the Plenum of the Supreme Court of the Russian Federation
st atation:
1. Draw the attention of the courts to the special danger of banditry, which poses a real threat both to the personal safety of citizens and their property, and to the normal functioning of government, commercial or other organizations.
2. A gang should be understood as an organized, stable armed group of two or more individuals who have united in advance to carry out attacks on citizens or organizations. A gang can also be created to commit one attack, but one that requires careful preparation.
3. A gang differs from other organized groups in its armament and its criminal goals - carrying out attacks on citizens and organizations.
4. The stability of a gang can be evidenced, in particular, by such signs as the stability of its composition, the close relationship between its members, the consistency of their actions, the constancy of the forms and methods of criminal activity, the duration of its existence and the number of crimes committed.
5. A mandatory feature of a gang, provided for in Article 209 of the Criminal Code of the Russian Federation, is its armament, which presupposes that the gang members have firearms or bladed weapons, including throwing weapons, both factory-made and homemade, various explosive devices, as well as gas and pneumatic weapons . The use of weapons or mock-ups of weapons unsuitable for the intended use by attack participants cannot be considered as a sign of their armament. When deciding whether to recognize objects used by gang members during an attack as weapons, one should be guided by the provisions of the Law of the Russian Federation “On Weapons”, and, if necessary, by the opinion of experts. A gang is considered armed if at least one of its members has a weapon and other gang members are aware of it.
6. An attack should be understood as actions aimed at achieving a criminal result by using violence against the victim or creating a real threat of its immediate use. An attack by an armed gang is considered to have taken place even in cases where the weapons owned by the gang members were not used.
7. The creation of a gang involves the commission of any actions that result in the formation of an organized, stable armed group for the purpose of attacking citizens or organizations. They can be expressed in conspiracy, finding accomplices, financing, purchasing weapons, etc. The creation of an armed gang is, in accordance with Part 1 of Article 209 of the Criminal Code of the Russian Federation, a completed crime, regardless of whether the crimes it planned were committed. In cases where the active actions of a person aimed at creating a stable armed group, due to their timely suppression by law enforcement agencies or due to other circumstances beyond the control of this person, did not lead to the emergence of a gang, they should be qualified as an attempt to create a gang.
8. Gang leadership means making decisions related to both the planning, material support and organization of the criminal activities of the gang, and the commission of specific attacks by it.
9. Participation in a gang is not only direct participation in the attacks it commits, but also the performance by members of the gang of other active actions aimed at financing it, providing weapons, transport, finding targets for attack, etc. 10. In accordance with Part 2 of Article 209 of the Criminal Code of the Russian Federation, participation in the attack committed by such persons who, not being members of a gang, are aware that they are taking part in a crime committed by a gang should be classified as banditry. The actions of persons who were not members of the gang and did not take part in the attacks committed by it, but who assisted the gang in its criminal activities, should be qualified under Article 33 and the corresponding part of Article 209 of the Criminal Code of the Russian Federation.
11. Committing banditry using one’s official position (Part 3 of Article 209 of the Criminal Code of the Russian Federation) should be understood as the use by a person of his authority or other official powers, uniforms and paraphernalia, official IDs or weapons, as well as information that he has in connection with with his official position, when preparing or committing an attack by a gang or when financing its criminal activities, weapons, material equipment, selection of new gang members, etc.
12. Article 209 of the Criminal Code of the Russian Federation does not provide for any specific purposes of attacks carried out by an armed gang as a mandatory element of banditry. This can be not only the direct seizure of property, money or other valuables of a citizen or organization, but also murder, rape, extortion, destruction or damage to someone else’s property, etc.
13. Courts should keep in mind that Article 209 of the Criminal Code of the Russian Federation, which establishes liability for the creation of a gang, leadership and participation in it or in attacks committed by it, does not provide for liability for the commission of criminal acts by gang members in the process of an attack that constitute independent crimes, in connection with which in these cases one should be guided by the provisions of Article 17 of the Criminal Code of the Russian Federation, according to which, in the case of a combination of crimes, a person is liable for each crime under the relevant article or part of an article of the Criminal Code of the Russian Federation.
14. Within the meaning of Article 209 of the Criminal Code of the Russian Federation, the commission of any of the forms of banditry provided for by law is possible only with direct intent. The subject of this crime can be a person who has reached the age of 16. Persons aged 14 to 16 years who have committed various crimes as part of a gang are subject to liability only for those specific crimes for which responsibility is provided from the age of 14 (Article 20 of the Criminal Code of the Russian Federation).
15. Draw the attention of the courts to the importance of strict adherence to the principle of individualization of responsibility when assigning punishment to persons guilty of banditry. For these purposes, it is necessary to carefully clarify and take into account the entire set of circumstances of the case and information about the identity of the defendants: the role and degree of participation of the person in the organization and criminal activities of the gang, the severity of the consequences that occurred as a result of the attacks committed by it, etc.
16. Recommend that the courts of cassation and supervisory instances strengthen supervision over the consideration of cases of banditry by the courts of first instance.
17. With the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 1993 No. 9 “On judicial practice in cases of banditry” shall be declared invalid.
Chairman of the Supreme Court of the Russian Federation V.M. Lebedev
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. Demidov
The Plenum of the Supreme Court clarified the application of the norms of the Code of Criminal Procedure of the Russian Federation in the appeal
The Supreme Court of the Russian Federation adopted Plenum Resolution No. 54 dated December 1, 2015 “On amending the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 27, 2012 No. 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the appellate court.” The changes made to the Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal” are due to amendments to the legislation, as well as issues existing in judicial practice.
In particular, the additions made to the resolution establish:
the court of appeal, based on the results of consideration of the complaint, presentation against court decisions made during pre-trial proceedings in accordance with parts 2 and 3 of Article 29 of the Code of Criminal Procedure of the Russian Federation, as well as court decisions on issues related to the execution of the sentence, if there are grounds for this, has the right to change or cancel the decision and make a new decision without transferring the material to the court of first instance, if the violations of the criminal procedure law can be eliminated in the court of appeal;
in the decision to schedule a court hearing, the question of the form of participation of a person in custody must be resolved based on the provisions of Article 389.7, paragraph 5 of part 1 of Article 389.11 and part 2 of Article 389.12 of the Code of Criminal Procedure of the Russian Federation in their interrelation, taking into account the fact that such a person a court decision may provide the right to participate in a court hearing directly or through the use of video conferencing systems;
if there are grounds for choosing a preventive measure for the defendant or convicted person in the form of bail, house arrest or detention, as well as for canceling or changing the preventive measure chosen in relation to him, or grounds for extending the period of house arrest or the period of detention in cases of expiration within the period previously established by the court, the appellate judge considers this issue in a court session with the participation of the defendant or convicted person, his defense attorney, if he is involved in a criminal case, the legal representative of a minor defendant or convicted person, a state prosecutor or prosecutor in the manner established by Article 108 of the Code of Criminal Procedure of the Russian Federation.
The full text of the resolution can be found on the Consultant+ website.
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Plenum of the Supreme Court of January 17, 1997 N 1
“On the practice of application by courts of legislation on liability for banditry” (ed. 01/17/1997)
TABLE OF CONTENTS
| THE CONCEPT OF A GANG — clause 2 Plenum No. 1 definition of the term “gang” — clause 3 Plenum No. 1: two differences between a gang and other groups: weapons and the purpose of the attack Gang Resilience — clause 4 Plenum No. 1 - what is gang stability? WEAPON — clause 5 Plenum No. 1, armed gangs are required — clause 5 Plenum No. 1, mock-ups and worthless weapons are not a sign of a gang — clause 5 Plenum No. 1 for a gang it is enough for even one participant to have a weapon ATTACKS — clause 6 Plenum No. 1: what is an attack as part of a gang? — clause 6 Plenum No. 1, the use of weapons is not necessary; it still qualifies as an attack CREATION OF A GANG — clause 7 Plenum No. 1 what actions are considered the creation of a gang — clause 7 Plenum No. 1, — clause 7 Plenum No. 1 qualification of attempted gang creation MANAGEMENT OF THE GANG — clause 8 Plenum No. 1: what is gang leadership? PARTICIPATION IN A GANG — clause 9 Plenum No. 1: what is participation in a gang? — clause 10 Plenum No. 1, awareness of the fact of the existence of a gang automatically turns one into its participant. — clause 10 Plenum No. 1, assisting a gang is qualified through — clause 11 Plenum No. 1 official position for banditry
Plenum No. 1, the targets of attacks can be any Set of 209 Criminal Code with other compositions — clause 13 Plenum No. 1 set of Intent - paragraph 14 Plenum No. 1, banditry is possible only with direct intent Age of responsibility - paragraph 14 Plenum No. 1 subject of banditry from 16 years of age PUNISHMENT - paragraph 15 Plenum No. 1 what is taken into account when punishing banditry |
1) Draw the attention of the courts to the special danger of banditry, which poses a real threat both to the personal safety of citizens and their property, and to the normal functioning of government, commercial or other organizations.
THE CONCEPT OF A GANG
2) A gang should be understood as an organized
,
a stable
,
armed
group of two or more individuals who have previously united to carry out
attacks
on citizens or organizations. A gang can also be created to commit one attack, but one that requires careful preparation.
3) The gang differs from other organized groups in its armament and its criminal goals - carrying out attacks on citizens and organizations.
Goal: financial gain
| - there is no direct indication in regulatory sources that gangs there must be such a sign of receiving financial gain (unlike - however, in practice, if the accused uses the proceeds of a crime as the main source of living, then investigators interpret this as an indirect sign of a gang. - you need to fight this indirect sign, it can be easy, because... Investigators do not attach much importance to it and provide weak arguments for it. Case No. 51-APU17-9 Example - it was not confirmed that the group members lived from criminal means |
4) The stability of a gang can be evidenced, in particular, by such signs as the stability of its composition, the close relationship between its members, the consistency of their actions, the constancy of the forms and methods of criminal activity, the duration of its existence and the number of crimes committed.
WEAPON
5) Mandatory sign of a gang, provided for by 209 of the Criminal Code
, is its armament, suggesting that the gang members have both factory-made and homemade weapons:
— firearms
;
- or cold
including throwing;
- also gas
and pneumatic;
- various explosive devices
.
The use of weapons or mock-ups of weapons unsuitable for the intended use by attack participants cannot be considered as a sign of their armament.
When deciding whether to recognize objects used by gang members during an attack as weapons, one should be guided by the provisions of the Law of the Russian Federation “On Weapons”, and, in necessary cases, by the opinion of experts.
A gang is considered armed if at least one of its members has a weapon and other gang members are aware of it.
Purchasing weapons
| - a mandatory sign of a gang: the presence of weapons (clause 5 Plenum No. 1). But if the defendant is accused of “creating” a gang, then the defense needs to pay attention to how the weapon appeared. - in paragraph 7 Plenum No. 1 states that a sign of the creation of a gang is precisely the “acquisition” of weapons. Not using what already exists, but rather a special search. If the weapon was already - if the group members already had weapons, then they did not have to specifically look for them. Then there is no “purchase” of weapons. This means that this sign of the “creation” of a gang is absent. - in this case, this qualifying feature must be challenged, Case No. 51-APU17-9 Example - if weapons were not purchased, then there was no creation of a gang |
ATTACKS
6) An attack should be understood as actions aimed at achieving a criminal result by using violence against the victim or creating a real threat of its immediate use.
An attack by an armed gang is considered to have taken place even in cases where the weapons owned by the gang members were not used.
Attacks
| Mandatory attribute gangs : It exists for the purpose of carrying out I). Clean option — the accused create a group specifically for the purpose of attacks. That is, previously this group did not exist at all. II). Intermediate option - the group already exists, the accused have already committed crimes as part of the group (thefts, robberies), and decide to diversify their activities. - or simply one of them has a weapon (and the investigator readily qualifies the presence of a weapon as a 100% sign of a gang). — group members decide to start carrying out armed attacks. Dates - in this case, the defense needs to pay attention to the dates of the events. In practice, investigators extend the intent to create a gang “back in time.” That is, according to their logic, the group was already a “ gang” ". This qualification is wrong. Case No. 51-APU17-9 Example — it is necessary to distinguish whether the attacks were part of a gang or not |
CREATION OF A GANG
7) The creation of a gang involves the commission of any actions that result in the formation of an organized, stable armed group for the purpose of attacking citizens or organizations. They can be expressed in:
- conspiracy,
- finding accomplices
,
- financing,
- purchasing weapons, etc.
The creation of an armed gang is in accordance with Part 1 209 of the Criminal Code
completed crime, regardless of whether the crimes she planned were committed.
In cases where the active actions of a person aimed at creating a stable armed group, due to their timely suppression by law enforcement agencies or due to other circumstances beyond the control of this person, did not lead to the emergence of a gang, they should be qualified as an attempt
to create a gang.
Attempt to create a gang
| - weak point of the accusation Part 1 209 of the Criminal Code is that the moment when the creation of a gang can be considered completed is blurred. - actions to create a gang (for a list of actions that are interpreted specifically as aimed at its creation, see paragraph 7 Plenum No. 1) can be extended in time, and their interpretation is of an evaluative nature. - therefore, in case it is not possible to refute the classification of the group as a “gang”, then as a backup line of defense you can use reclassification from a completed composition to an attempt . - if it is possible to prove that the emergence of a gang did not happen (did not have time to happen), then thanks to clause 7 Plenum No. 1, the stage of the crime can be reduced to attempt (which gives a plus when assigning punishment, provided for by the norm of |
MANAGEMENT OF THE GANG
Gang leadership refers to decision-making related to both the planning, material support and organization of the criminal activities of the gang, and the commission of specific attacks by it.
PARTICIPATION IN A GANG
9) Participation in a gang involves more than just direct participation in the attacks
, but also the performance by members of the gang of other active actions aimed at financing it, providing weapons, transport, finding targets for attack, etc.
10) In accordance with Part 2 209 of the Criminal Code
Participation in the attack being committed should also be qualified as banditry by such persons who, while not members of the gang, are aware that they are taking part in a crime committed by the gang.
Url Additional information:
- 67 Criminal Code
complicity punishment
The actions of persons who were not members of the gang and did not take part in the attacks committed by it, but who assisted the gang in its criminal activities, should be qualified under Article 33 of the Criminal Code
and the corresponding part
209 of the Criminal Code
.
11) Committing banditry using one’s official position ( Part 3 209 of the Criminal Code
) should be understood as the use by a person of his authority or other official powers, uniforms and paraphernalia, official IDs or weapons, as well as information that he has in connection with his official position, when preparing or committing an attack by a gang or when financing its criminal activities, weapons , material equipment, selection of new gang members, etc.
12) Article 209 of the Criminal Code
does not provide as a mandatory element of banditry any specific goals of attacks carried out by an armed gang. This can be not only the direct seizure of property, money or other valuables of a citizen or organization, but also murder, rape, extortion, destruction or damage to someone else’s property, etc.
13) Courts should bear in mind that, establishing liability for the creation of a gang, leadership and participation in it or in attacks
, does not provide for liability for the commission of criminal acts by gang members in the process of attack that form independent crimes, and therefore in these cases one should be guided by the provisions of
17 of the Criminal Code
, according to which, in the case of a set of crimes, a person is responsible for
each
crime under the corresponding or part of the Criminal Code.
14) Within the meaning of 209 Criminal Code
the commission of any of the forms of banditry provided for by law is possible only with
direct
intent.
The subject of this crime can be a person who has reached the age of 16. Persons aged 14 to 16 years who have committed various crimes as part of a gang are subject to liability only for those specific crimes for which liability is provided from the age of 14 ( 20 Criminal Code
).
PUNISHMENT
15) Draw the attention of the courts to the importance of strict adherence to the principle of individualization of responsibility when imposing punishment on persons guilty of banditry. For these purposes, the following should be carefully clarified and taken into account:
- the totality of the circumstances of the case,
Url Additional information:
Personality
Identity of the culprit
— health, marital status (
clause 1
of Plenum No. 58)
personal data
defendants:
Url Additional information:
Role
Role in the commission
crimes, accounting for punishment
Degree of complicity
Degree of complicity
this is the volume of actual actions when performing
— role
and
the degree of
participation of the person in the organization and criminal activities of the gang,
Url Additional information:
Consequences of the crime
Consequences of the crime
, consideration at sentencing
— severity of consequences
resulting from the attacks she carried out
- and so on.
Peculiarities of punishment for banditry
| - when imposing punishment under the article 209 CC must take into account not only the general principles of sentencing ( — this paragraph emphasizes the need for individualization of punishment (sentence terms should not be assigned “by line”), the role and degree of participation in the activities of the gang must be taken into account. |
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