Peculiarities of qualification of complicity in a crime using examples from practice

Having started his speech with the characteristics of the qualification of crimes, he smoothly moved on to their types, basing each example on the practice of the Supreme Court of the Russian Federation.

The professor indicated that in accordance with Art. 32 of the Criminal Code of the Russian Federation, complicity in a crime is recognized as the intentional joint participation of two or more persons in the commission of an intentional crime. Signs, in turn, are divided into subjective and objective. The latter presuppose the presence of two or more persons.

The lecturer said that historically the practice of English courts has formulated an accessory theory, according to which a criminal case against others cannot be considered before the criminal case of the perpetrator. Later, this practice slightly changed the vector: it was allowed to consider the cases of accomplices and the perpetrator within the same process when considering the perpetrator’s case first. Today, English courts work differently, but in Russia such a problem exists.

Yuri Pudovochkin gave an example when a case was committed in complicity, there is one person in the dock, and the rest are wanted. The case is being considered in a special manner. Later, other accomplices are found, whose cases are considered in the general manner with the participation of jurors. They find them innocent, but by this time the other accomplice may already have served his sentence.

Regarding the second sign of an objective party - two persons - the professor gave as an example officials working in the Federal Tax Service, who, during the next inspection, offered the individual entrepreneur a deal: they would draw up the necessary document for him, and he would pay them later. Subsequently, employees quit and come back for remuneration. In court, they indicate that their actions are not considered a bribe, since at the time they receive the reward they are not civil servants. Having analyzed the situation, the RF Armed Forces explained that the time of receipt of money does not change qualifications, since when committing actions aimed at receiving a bribe, citizens had the appropriate official powers.

Yuri Pudovochkin pointed out that, although complicity presupposes the participation of two or more entities with a joint intent and reaching a certain age, the practice of the RF Armed Forces follows a different path. For example, in 2004, the Presidium of the Supreme Court considered that declaring an accomplice to a crime insane does not cancel complicity - a fit subject is subject to responsibility for a crime committed by a group of persons.

The speaker touched upon the topic of actions and inactions of parents and educators, as well as teenagers, when they film themselves beating a friend, and helping to cover up crimes. He also spoke about attempted rape. Thus, two persons pursued the victim with the aim of rape. Running away, the girl climbed up the stairwell of a multi-story building and stopped on the balcony. Since there was nowhere else to run, she jumped over the bars of the balcony and died. The Supreme Court of the Russian Federation regarded this as an attempted rape by a group of persons, resulting in death through negligence.

In addition, Yuri Pudovochkin spoke about the concept and content of general intent, the presence of a selfish motive and purpose, as well as awareness. As an example of the latter, he pointed to the Ruling of the Supreme Court of August 24, 2021, where the case of A.P. was considered. Zhuravlev, who supplied E.V. Ershova drugs and buyers. At some point, she decided to give two bags to her friend. Since A.P. Zhuravlev did not know about this, the RF Supreme Court explained that only E.V. was responsible for the gift. Ershova.

The lecturer explained that in order to consider or pass a sentence, an executor is needed, but in practice difficult situations arise. For example, the Supreme Court Ruling dated January 19, 2021 explains that I.A. Murzina, a court employee, on her own initiative forged documents in order to free her friend from custody. A criminal case was opened against her. However, the RF Armed Forces indicated that if there is no subject who intends to escape, then there is no perpetrator, and therefore the case is against I.A. Murzina was terminated and her right to rehabilitation was recognized.

Yuri Pudovochkin also pointed out two different approaches that are applied to specific crimes. Thus, military courts note that if two brothers - a military man and a civilian - beat another military man, then the brother is an accomplice in committing a crime with a special subject. At the same time, the professor explains, military courts have another practice: some of them argue that it is impossible to talk about complicity, since this is a common crime, without qualification of a group of persons.

The speaker looked at other examples, ending his speech with answers to questions from listeners.

Please note that the webinar will be available to watch again on Saturday, March 31st. Note that when viewing it, qualifying hours will be counted in the same way as when watching an online broadcast.

Fraud on a large and especially large scale - how much?

In pursuit of the amount of stolen goods, a fraudster can go beyond the limits of his greed. Speaking about large and especially large amounts of damage, we consider the types of serious crimes in accordance with Art. 15 of the Criminal Code of the Russian Federation. Large and especially large theft is a qualifying circumstance that distinguishes the corpus delicti into separate parts of the article for fraud (Part 3, Part 4 of Article 159 of the Criminal Code of the Russian Federation). Qualifying characteristics are an analogue of an aggravating circumstance and directly affect how many years the perpetrator will spend in prison for his crime. Thus, further we will talk about thefts of over 3 million rubles and over 12 million rubles (large and especially large, respectively).

In the case of fraud, a person who has reached the age of 16 at the time of the commission is recognized as a criminal. An illegal act can be committed by either a man or a woman.

Financial fraud is an exclusively intentional crime, because... it cannot be done accidentally through negligence. The composition requires the presence of an action plan, as well as a strategy for deceiving the victim. The totality of the circumstances of the violation of the law affects the nature of the punishment.

A sentence for causing damage on a large scale provides for the imposition of penalties in the form of:

fine up to 500 thousand rubles;
forced labor for up to 5 years;
restrictions of freedom up to 2 years;
imprisonment for up to 6 years.

In extra large sizes:

fine up to 1 million rubles;
imprisonment for up to 10 years;
restriction of freedom for up to 2 years.

The basis that determines the degree of punishment is the circumstances of the crime and the nature of the actions of the accomplice. Circumstances that aggravate and mitigate liability have a special impact.

Note!
The list of aggravating circumstances is closed and is contained in Art. 63 of the Criminal Code of the Russian Federation.

As mitigating circumstances, the court has the right to accept at its discretion any circumstances, including those not listed in Art. 61 of the Criminal Code of the Russian Federation.

Group fraud does not always indicate the insignificant guilt of some of its accomplices. The court considers the circumstances of each case individually, assesses the amount of damage, and imposes punishment within the limits of the sanction provided for by the norm.

Performer's kurtosis

The excess of the performer is the commission of acts that are included only in the intent of the performer.
In any type of combined crime, excess is possible. That is, the performer exceeds the limits within which he must act when implementing illegal actions. This entails the implementation of a more serious crime. A feature of excess is the absence of a causal connection between the intent of the accomplices and the illegal actions.

Types of excess:

Qualitative excess - a person who directly commits an offense, which is included in the intent of the other accomplices, commits another type of crime that was not covered by intent.
Quantitative excess – the actions of the performer led to more severe consequences. A different result of actions or in the case of a different method of carrying out the crime is also possible. In this case, exceeding the result required by the criminals does not entail an interruption of the crime.

If the crime turns out to be less serious, the perpetrator is provided with a waiver of the more serious crime (mitigates the sentence).

In the case of quantitative excess, accomplices are responsible either for the fact of an unfinished (for example, attempted) crime or a completed one, but part of their plans.

In case of qualitative excess, the punishment for the performer will be based on the totality of actions (both planned and executed).

Complicity begins to appear in legal sources of the Middle Ages. This suggests that this concept is one of the most ancient in the history of criminal law. Moreover, even modern legislation has not been able to eradicate this criminal institution. An example of this is the corruption system that has developed in Russia in recent years.

Exemption from sanctions

It is provided for in Article 31 (Part 4). An accomplice is not held accountable if he has taken all necessary and dependent measures to prevent the attack. Some authors argue with lawyers who admit the possibility of voluntary refusal by a person participating in an encroachment through a promise given in advance, through passive behavior. To be released from liability, an accomplice must take measures to eliminate the consequences of his actions. Accordingly, the subject who promised in advance to provide assistance must neutralize participation in the crime by returning the word given earlier. This can only be achieved through active actions. Article 33, part 4, of the Model Criminal Code recommends excluding from the list of accused citizens who refused to the perpetrator the assistance promised in advance before the end of the crime or who eliminated the results of the assistance provided.

Liability for petty theft

If the theft is committed for the first time, and the value of the stolen property does not exceed 2,500 rubles, the thief is subject to administrative rather than criminal liability. In such cases, a protocol is drawn up under Art. 7.27 Code of Administrative Offenses of the Russian Federation. The punishment in this case is assigned to your choice:

- in the form of a fine from 1000 rubles to 5 times the value of the stolen property;

— administrative arrest for up to 15 days;

— compulsory work up to 120 hours;

Note! If, after drawing up a protocol against a citizen under Part 2 of Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, he will be convicted of petty theft again, then liability may be criminal - under Art. 158.1 of the Criminal Code of the Russian Federation.

By prior agreement

Theft committed by a group of persons by prior conspiracy (clause “a” of part 2 of Article 158 of the Criminal Code of the Russian Federation) involves a greater degree of public danger, since the persons agree in advance to commit the theft, and therefore implies a more severe punishment (term).

We list the signs characteristic of theft committed by a group of persons by prior conspiracy:

The theft is committed by two or more co-principals (accomplices).

That is, it is necessary that the persons jointly fulfill the objective side of the theft, either completely or partially.

The Supreme Court in paragraph 10 of PPVS No. 29 explains this provision. Co-execution is possible in the following situations:

Accomplices jointly carry out the objective side of the theft.

For example, A. and B. seize property together, performing the same actions.

One accomplice takes the property, and the others assist him in committing the theft.

For example, A. and B. initially agreed that A. would seize property, and B. would pick locks and make sure that no one discovered their actions.

Presence of prior agreement.

It is necessary that the accomplices agree in advance to commit the theft. At the same time, the degree of coordination of such a conspiracy is quite low, since persons usually agree that they will commit a crime together, and also determine what crime they will commit. In other words, accomplices usually do not specify the details of the theft and do not plan it as carefully (unlike an organized group).

The criminal connection between persons does not last long.

That is, individuals conspire to commit one theft.

Accomplices act with direct intent, which arises in advance.

Let's imagine that A. and B. met on the street, got into conversation and decided to steal food from the store. They agreed in advance that A. would steal products from the vegetable department, and B. from the meat department. After that, they entered a closed store, stole food and went home.

In this case, the actions of persons will be qualified not only under paragraph “a” of Part 2 of Art. 158 of the Criminal Code of the Russian Federation, but also under clause “b” (illegal entry into a store).

— How to qualify the actions of a person who did not participate in a criminal conspiracy, but committed theft?
A person must be held criminally responsible for actions that he personally commits. It cannot be held criminally liable for the actions of others who acted as accomplices.
Let us remember the example of A. and B., who stole food. Suppose that during the theft, V., who happened to be passing nearby, enters the store, and he also begins to steal food.
Of course, in this situation there are neither subjective nor objective signs of complicity , as well as signs indicating that V. has a prior conspiracy with A. and B. Therefore, his actions should be qualified based on what he personally committed.

Involvement in crime

Involved in the crime committed are not only accomplices, but also other people related to the crime. In domestic criminal law, such persons are called “touched” to the crime.

Involvement in crime is an attack on the opportunity to prevent or solve a crime. Unlike complicity, with implication, the actions of the offenders do not have a causal connection with the crime.

In this case, touchiness is divided into several types:

Concealment (Article 316) – its main feature is considered to be the fact that it was not promised in advance. This behavior is detrimental to solving crimes.
Connivance is the deliberate allowance of illegal actions.
Failure to report illegal behavior (not provided for by the Criminal Code of Russia, but was present in the Code of the RSFSR - Article 19).

Some scientists and scientists believe that incitement should be considered another type of touching. This distinction is based on the fact that incitement involves inducing one person to another to commit an offense, while the instigator is not actively involved.

But today the list of types of touch is exhaustive.

Difference from instigator

Subject characterized by part five of Art. 33 of the Criminal Code of the Russian Federation, does not provoke the determination of other citizens to commit an unlawful act. He can only strengthen it. Moreover, such influence on other persons does not act as a distinctive sign of complicity. An entity that strengthens someone's resolve to commit an attack does not always fall under the characteristics given in the fifth part. Ordinary approval of intentions to carry out illegal actions is not regarded as complicity. However, if it entailed acts contributing to the crime, the situation is different. For example, the behavior of a citizen who encourages a friend who has decided to commit illegal actions does not fall under the fifth part of Art. 33 of the Criminal Code of the Russian Federation. This subject cannot be called an accomplice to the crime. Approval, which was expressed by the boss or another citizen, in relation to whom the performer is dependent (subordinate), does not in itself contribute to the commission of an assault. Accordingly, it also does not fall under part five of Art. 33 of the Criminal Code of the Russian Federation. However, if approval of the desire to commit theft was expressed by the watchman in such a way that the alleged criminals should count on his assistance, then the person’s behavior will be regarded as a type of complicity. Any complicity always arises after the determination to commit an attack appears.

What does judicial practice show under this article?

Judicial practice under this article is extensive and occurs frequently, since crimes often involve not one person, but several. Their responsibility is equal to the degree of participation.

Examples of cases:

A group of citizens was detained for kidnapping a child from citizen E. She was in the park when one of the accomplices distracted her with a conversation, the second lured the child, grabbed him and ran to the third, who was waiting in the car. Without delay, we managed to detain all the participants in the crime. In accordance with the law, they were given a punishment: the first, who distracted E., received the mildest, the second, who directly stole the child, received the heaviest.
Citizen V., who owned a small store, contacted the police. At night he was robbed and his food and cash register were taken away. Using CCTV cameras, it was possible to identify the group of people who participated in the robbery. They were detained, they agreed to cooperate with the investigation and brought investigators to the customer of the robbery - competitor V. They convicted everyone, the customer received a fine and imprisonment for a year, each of the perpetrators was sentenced to 6 years, except for the one who guarded the robbers - he was given 3 years.
In the city of L., a gang was detained that attacked people in the evening and robbed them. The police found them guilty in 25 cases and took the case to court. The punishment was decided according to the participation of each gang member. Those who did not take part in all crimes received 6 years of arrest, active perpetrators - 10 years.

What decisions are most often made under Article 34?

More often, the article makes guilty decisions, since the crime has already been committed or preparations were underway for it. Depending on which member of the group was responsible for what action, the punishment differs. This may be a fine, deprivation or restriction of freedom, forced or other labor, deprivation of the right to engage in activities.

What determines the degree of punishment?

The degree of complicity is directly dependent on the action taken. For example, the helper gives advice, or can remove an obstacle or provide information. Another example: perpetrators and accomplices cannot participate in the murder of the mother of a newborn child, since such qualifications mitigate the circumstances. If a man was involved in the crime, his actions are regarded under Article 105.