Article 33 of the Criminal Code of the Russian Federation: incitement and aiding in a crime

Punishment for the organizer

The organizer of a crime is a person who is active in everything related to preparation for committing an offense.
Such an event participant can have two roles:

direct participant;
The role of only the organizer.

With direct participation, the criminal carries out the organization primarily on his own, develops a plan for the proposed act, determines the role of each participant, if there are several of them, and also determines his role in participation. If the organizer only intends to develop a plan, then he does not participate in the process itself, but at the same time manages the process completely, communicating with other participants in ways available to him.

The punishment of this accomplice will be determined in accordance with the obligations assumed, since offenses may vary in severity, but the terms of the name are subject to change.

Also, when assigning a measure of responsibility, the identity of other people who are part of the company that committed the offense is taken into account:

Minors.
Incapacitated.
Mentally ill, but not incapacitated.

In this case, the organizer, even if he did not participate in the crime, is recognized as the direct perpetrator, since he influenced other accomplices thanks to his strength, both physical and intellectual, and also suppressed the weaker ones and essentially forced or incited them to act as he pleased.

Arbitrage practice

Judicial practice in cases where there were several participants playing different roles is quite extensive. Each individual criminal case requires careful analysis and establishment of the share of participation of each person in the overall case.

It must be borne in mind that assisting one person in committing a crime will not be considered the commission of a crime by a group of persons.

Thus, an excellent example of incorrect practice can be the verdict of the Moskovsky District Court (Kaliningrad), where citizen S. was convicted of committing acts of complicity with her husband K. in the illegal sale of a narcotic drug by prior conspiracy by a group of persons. When pronouncing the sentence, the judge did not take into account that the crime itself and the evidence collected during the preliminary investigation did not indicate that S. was assisting a group of people, but only spoke of aiding S. alone.

Under such circumstances, set out in the materials of the criminal case and in the verdict of the court of first instance, the cassation court recognized the erroneous classification of the actions as a group of persons guilty on the basis of a preliminary conspiracy and excluded this criterion from the conviction.

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Examples

The role of the instigator is easier to understand using specific examples.

So, for example, in 2011, the Supreme Court of the Republic of Karelia considered a case with the following plot. A., wanting to commit the murder of R., acted as an organizer.

He transferred money to the convicted B., so that he, acting as an intermediary, would persuade K. to commit murder through bribery. B., carrying out criminal intent, met with K. and, with the help of both bribery and threats, persuaded the latter to participate in the murder of R. The murder took place, B. received money from A.

Later, based on the results of the investigation of the case, he was convicted as an accomplice of A. and instigator of K.

As an example when a person’s actions were erroneously classified as incitement, we can mention the Byashimov case, considered in 1967 (unlike other branches, the fundamental principles of criminal law have changed little since the times of the USSR). This citizen was convicted by the court of first instance as an instigator of murder.

His actions were expressed in the fact that he wrote to his brother, who was serving in the army at that moment, about the immoral actions of his wife. Returning home, his brother committed murder and was convicted for it, and Byashimov was brought in as an instigator.

However, the Judicial Collegium for Criminal Cases of the USSR Supreme Court acquitted the convict, pointing out that Byashimy’s actions did not specifically induce the killer to commit a crime. The information he conveyed to his brother led to the commission of a crime, but the convict had no intent to kill the victim.

Another commentary on Article 34 of the Criminal Code of the Russian Federation

1. Complicity does not create additional grounds for criminal liability. Consequently, the basis for the responsibility of each accomplice is the commission of an act containing all the elements of a crime. In this case, each accomplice is responsible independently, within the limits of personal guilt, and bears personal responsibility, which, in turn, is determined by the nature and degree of actual participation of each of them in the commission of the crime. This is the difference between our domestic theory of complicity and other concepts.

2. The nature and degree of actual participation in the commission of a crime reflect the specific features of complicity and depend on the significance of the actions (inaction) of the accomplice, his contribution to the achievement of the criminal result. The nature of participation reflects the functional role played by the accomplice, the degree of participation is a measure of activity in the process of joint activity. For example, the role of the organizer of a crime, as a rule, is recognized as more dangerous in comparison with the role of an accomplice, which, undoubtedly, must be taken into account when assigning a fair punishment to the guilty. Although the role of inciting a minor to commit a crime is no less dangerous than even the role of the organizer.

3. The specificity of the liability of accomplices is manifested in the fact that they are all liable under the same article (part, paragraph of the article) of the Criminal Code of the Russian Federation. Moreover, in the case where the accomplices acted as perpetrators (co-perpetrators) of the crime, the qualification of their actions does not require an additional reference to Art. 33 of the Criminal Code. It is another matter if the accomplices played the role of organizer, instigator or accomplice and were not co-perpetrators of the crime. A legal assessment of their actions requires reference to the relevant part of Art. 33 of the Criminal Code, reflecting the role they played. This is explained by the fact that these accomplices did not directly encroach on the object of criminal legal protection. Therefore, the basis for their responsibility is an act containing not only elements of a crime in the commission of which they took joint part, but also signs characterizing their role in this crime.

4. As is known, the perpetrator of a crime must have the general characteristics of the subject, as well as special characteristics that are mandatory for the relevant elements of the crime. Thus, only an official can be the perpetrator of a bribe. A person who is not such, but commits an action covered by the elements of this crime, bears criminal liability as its organizer, instigator or accomplice.

5. The act of accomplices cannot be considered in isolation from the act of the perpetrator. There is a connection between the organizer, instigator and accomplice, on the one hand, and the perpetrator, on the other hand, which is manifested in the fact that the degree to which the perpetrator approaches the realization of the criminal goal intended by all accomplices determines the resolution of the issue of the responsibility of the accomplices. Therefore, in the event that the perpetrator does not complete the crime due to circumstances beyond his control, the remaining accomplices bear criminal responsibility for preparing for this crime or attempting to commit it. This issue is resolved similarly in case of unsuccessful incitement - the person is subject to responsibility for preparing for the crime that he tried to persuade another person to commit.

Forms of complicity in crime

Complicity is differentiated by the nature of the objective connection between the criminals. This criterion allows us to distinguish the following four forms:

simple complicity;
complex complicity;
organized group;
criminal community.

Simple participation is characterized by the fact that each member of the group is a performer. He fully or partially carries out actions that form the objective side of the crime, or otherwise directly participates in its commission. For example, one of the attackers threatens the victim with a knife, and at that moment the other rips the watch off the person’s hand. Each of these accomplices is a perpetrator of robbery.

Complex complicity is distinguished by the fact that the actions (or inaction) that form the objective side of the crime are not committed directly by all participants, but only by one or several of them. The rest do not even fulfill the partially objective side of the crime and do not directly participate in the process of its commission.

With complex complicity, there is a distribution of roles. That is, a different way of interaction between attackers: some are the perpetrators of the crime, others organize its commission or act as instigators.

An organized group is a stable association of persons who have gathered in advance to commit one or more crimes. A characteristic feature of such a group is the presence of an organizer who develops plans for criminal actions, distributes roles between members, directs and corrects their actions, maintains discipline, etc.

In accordance with Part 6 of Article 35 of the Criminal Code of the Russian Federation, the mere creation of an organized group entails criminal liability for preparation for the crimes for which it was formed.

A criminal community (or criminal organization) is the most dangerous form of complicity. A close-knit organized group created to commit grave or especially grave crimes, or an association of such groups constitutes a criminal community. It is characterized by cohesion, which is an evaluative sign expressed in the presence of criminal ties between participants. For example, awareness of community members about information compromising each other, the presence of a common cash register, conspiracy consisting in the use of code names, codes, passwords, etc.

Complicity as a form of complicity

The article for complicity presupposes the following types of complicity:

Please note that the Intellectual Assist will only be held liable if his advice and other assistance were used in the commission of criminal acts.

. the criminal assists with instructions, advice, recommendations, providing certain information (intellectual accomplice), or removes obstacles and barriers that prevent the rapid commission of a crime and concealment of its traces (physical accomplice); concealment of other criminals, stolen property and other objects of crime, means by which the crime itself was committed; assistance in the sale of items obtained by criminal means, or their acquisition.

the criminal assists with instructions, advice, recommendations, providing certain information (intellectual accomplice), or removes obstacles and barriers that prevent the rapid commission of a crime and concealment of its traces (physical accomplice);
concealment of other criminals, stolen property and other objects of crime, means by which the crime itself was committed;
assistance in the sale of items obtained by criminal means, or their acquisition.

Complicity is recognized as a complex form of participation in a crime, i.e. there is the participation of several persons with a pre-promised distribution of roles (performer, organizer, accomplice).

If a person knows about a crime, but does not participate in it and does not receive any benefit, he cannot be classified as an accomplice. Verbal support of intentions to participate in a crime is also not considered complicity. For example, if your friend knows that you want to rob a warehouse, his knowledge will not be qualified as complicity. It’s another matter when the guard guarding this warehouse has such knowledge. The role of the watchman must be thoroughly studied and qualified according to a certain part of Article 33 of the Criminal Code.

The concept and signs of complicity in a crime

A crime committed by the joint actions of several persons constitutes complicity. As a result, attackers have the opportunity to cause significant damage to existing social relations.

According to Article 32 of the Criminal Code of the Russian Federation, we have already completed an essay

Article 228 of the Criminal Code of the Russian Federation in more detail, complicity is recognized as the intentional joint participation of two or more persons in the commission of a crime.
This phenomenon is characterized by a number of objective and subjective characteristics. Objective signs of complicity are: Are you an expert in this subject area? We invite you to become the author of the Directory Working Conditions

participation in a crime of two or more persons;
the jointness of their activities.

Subjective signs of complicity in a crime include:

mutual awareness;
consistency corresponding to the volitional moment of intent.

The joint activity of several persons is expressed in the fact that a crime is committed by interconnected and interdependent actions (or inaction) of the participants, and at the same time a common criminal result is achieved for all.

Mutual awareness is characterized by the fact that each of the persons involved is aware of the fact of joint commission of a crime and the socially dangerous nature of the actions of all accomplices.

Consistency, corresponding to the volitional moment of intent, consists in expressing the intention of the guilty person to participate in the commission of a crime together with others. This is a psychological connection between partners, which characterizes the jointness of their activities from the subjective side.

Note 1

Complicity arises from the moment of criminal conspiracy, the content and forms of which can be varied. The motives of the participants sometimes do not coincide. United by the intention to commit the same crime, people can be guided by different goals. For example, an instigator of murder often wants to take revenge on a future victim, and the perpetrator is guided by a selfish motive, which is to receive material rewards from the instigator.

Finished works on a similar topic

Coursework Complicity in a crime 420 ₽ Essay Complicity in a crime 250 ₽ Test paper Complicity in a crime 250 ₽

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Figure 1. Types of accomplices in crime. Author24 - online exchange of student work

What does judicial practice show under the article?

There is no judicial practice specifically on this article, but there are often cases with group participation of individuals, among whom the court determines the roles.

Examples:

Citizens E and R. decided to rob a bank. At the same time, R. was the organizer, and E. the performer. R. was also an accomplice - he waited for E. in the car after the robbery to take away the stolen property. When considering the case, the judges took into account the roles of each of the criminals, so they gave them appropriate sentences in the colony. R. received a longer sentence.
Citizen V. organized a criminal group that included 10 people involved in the sale of drugs. V. himself only managed their actions, monitored the completion of the work, and gave out a portion of the profits, taking into account the crimes committed. The police identified the organizer, he betrayed all the accomplices. Each was sentenced to real terms of imprisonment, but the longest one was given to V.
Citizen M. witnessed how a student from her school injured another with a knife brought from home. She decided not to tell anyone, became an instigator to hide evidence and not tell the public due to the danger of losing her job. She failed. The police officers who arrived at the scene obtained evidence, the boy was held accountable, M. herself was fired and a fine was imposed.

What decisions are made under Article 33?

The article assigns sentences depending on the degree of complicity. The greatest and heaviest punishments are imposed on the organizers and perpetrators, and lesser ones on accomplices and instigators. If a group of people is involved in a crime, most of them are given guilty verdicts, unless there are other circumstances.

Executor

This type of accomplice includes the person who carries out the main harm, that is, the objective side of the offense.

To recognize a person as a performer, he must meet certain points, namely:

fulfilled the objective side partially or completely;
used by a person who has non-criminal status;
possessed special knowledge if required.

If the perpetrator does not fulfill his functions in committing the crime, for example, when beating does not cause physical harm to the victim, then the crime will be considered imperfect.

By definition, such an offender goes into the category of accomplices, which means that aiding in the commission of a crime of the Criminal Code of the Russian Federation will be applicable to him and he will be liable under this legislative act.

If a person, in carrying out criminal intentions, uses another person who cannot be the object of a criminal conviction, then he takes full responsibility for the actions of the person not subject to criminal liability and becomes a perpetrator before the law, although in fact he may commit incitement to commit a crime (Article of the Criminal Code of the Russian Federation). finds him guilty.

The commentary to Article 33 states that when committing certain types of crimes, for example, robbery or theft of intellectual property, the perpetrator must have certain knowledge that allows him to carry out criminal intentions. If a person does not have such knowledge, then he is unlikely to be able to commit the objective side of the offense, which means his actions will be classified as other actions and attributed to other participants in the plan aimed at causing public harm.

Definition of instigator

In order for a participant to be found guilty of incitement to commit a crime, the article of the Criminal Code of the Russian Federation stipulates that he must commit certain actions in order to be charged with such a crime.
Typically, such actions mean:

Bribery is a material reward for the perpetrator for committing an offense.
Persuasion is a systematic suggestion to a person about the need for some action.
Threat - intimidation of a person by any means to carry out evil intentions with his hands.
Other actions aimed at ensuring that another person becomes the performer.

To expose the instigator, it is necessary that other persons who are accomplices give evidence indicating that this person incited them in any way to commit illegal actions. For example, when committing fraud, the instigator convinces the person who will carry out this activity to give false information.

It is worth noting that the incitement article of the Criminal Code of the Russian Federation always applies if such a fact of commission of a crime has been established in relation to a capable and criminally responsible person.

If a person belongs to the category of persons who, for one reason or another, are recognized as limited in bearing responsibility, then the instigator changes his status to the perpetrator, which implies a more severe punishment.

Directions

They have a similar goal to advice. The instructions are aimed at optimizing the behavior of partners in achieving the desired result. However, they require compliance. Directions are given in an authoritative manner and this differs from advice. A person does not always explain to his accomplices how exactly the actions/inactions that he requires will bring him closer to getting what he wants. Like advice, directions are expressed in active actions. When qualifying, one nuance should be taken into account. If an accomplice gives instructions regarding the methods of committing and the subject of a crime, then he is considered as the leader or organizer of the attack.

Gaps in legislation

Some lawyers point out that guidance, advice and information may be considered to remove obstacles. In this regard, according to experts, the wording given in the norm is not entirely successful. The removal of obstacles, aimed at strengthening the resolve of other participants, can only be expressed through active actions. Moreover, it can be written, oral, including using gestures. The promise to hide the attacker, means, instruments of assault, traces, objects that were obtained illegally, to acquire or sell them, in accordance with the law, are considered as independent methods of intellectual assistance only when given in advance. Some lawyers point out the failure of this formulation. Experts explain their position by saying that the reference to a “promise given in advance” stipulates that the relevant information is provided before the implementation of the objective side of the act begins. But such assurances can take place after it, but before the actual completion of the encroachment. In this case, they also, according to lawyers, should be classified as removing obstacles, since they are also aimed at strengthening the determination to carry out illegal actions. Accordingly, they also have a causal relationship with

Commentary to Art. 33 of the Criminal Code of the Russian Federation

Commentary edited by Esakova G.A.

1. The criminal law knows three types of performers.

The first of them is the perpetrator who directly commits the crime, i.e. who single-handedly carried out the entire objective side of the crime.

The second type of perpetrator is a co-perpetrator, who is directly involved in the commission of a crime together with other persons. All these persons are called co-perpetrators, since together they perform the objective side of the crime. In this case, to establish co-perpetrators, it is enough that each of the co-perpetrators fulfilled at least part of the objective side of the crime.

The third type of performer is the “mediocre performer.” In this case, a subject who can bear criminal liability uses to commit a crime a person who, for any reason, is not subject to criminal liability. At the same time, the subject capable of incurring criminal liability does not directly participate in the implementation of the objective side of the crime and actually plays the role of an organizer (accomplice, instigator). However, by virtue of the law, he is considered as a mediocre perpetrator of a crime committed by a person not subject to criminal liability.

2. From the definition of an organizer given in Part 3, four types of organizational activities can be distinguished.

Firstly, the organizer of a crime is the person who organized the commission of the crime, i.e. preparing the commission of a crime in whole or in large part by developing a plan for committing a crime, finding accomplices, instruments and means of committing a crime, training accomplices, etc.

Secondly, the organizer is the person who led the execution of the crime, i.e. a person who organizes the activities of accomplices in the direct commission of a crime both at the place of its commission and outside it.

Thirdly, the organizer is the person who created an organized group or criminal community (criminal organization), i.e. a person whose activities result in finding accomplices, instruments and means of committing a crime, developing plans for committing crimes, etc. was the creation of an organized group or criminal community (criminal organization).

Fourthly, the organizer is the person who led an organized group or criminal community (criminal organization), i.e. a person who heads an organized group or criminal community (criminal organization) already created by himself or another person.

3. An instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means. The inducement to commit a crime must be of a specific nature, i.e. cause in an individually determined person a desire to commit a certain crime and be aimed at inciting such a desire, although this does not require clear details of criminal actions.

4. Depending on the nature of the accomplice’s activity, aiding is divided into two types: intellectual and physical.

Intellectual assistance includes giving the perpetrator advice, instructions and providing other information that significantly facilitates the commission of a crime and contains informative information. Intellectual complicity also includes a promise made in advance to hide a criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, as well as a promise given in advance to acquire or sell such objects. The only exception known to judicial practice, when in the absence of a pre-given promise to purchase or sell items obtained by criminal means, such actions can be recognized as complicity, is based on their systematic commission in the past, allowing the perpetrator of the crime to count on similar assistance in committing a crime in the future ( Clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 7, 2015 N 32 “On judicial practice in cases of legalization (laundering) of funds or other property acquired by criminal means, and on the acquisition or sale of property known to be obtained by criminal means”) .

Physical assistance includes providing means or instruments for committing a crime or removing obstacles. Physical complicity is possible through both action and inaction and must provide the perpetrator with significant assistance in committing the crime.

Perpetrator of the crime

In accordance with Part 2 of Art. 33 of the Criminal Code of the Russian Federation , a person is recognized as a performer

directly committed a crime or directly participated in its commission together with other persons (co-perpetrators);
who has committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by criminal law.

Thus, the law knows three types of performer:

the perpetrator who directly commits the crime, i.e. who single-handedly carried out the entire objective side of the crime. He may also act together with accomplices in other roles;
a co-perpetrator directly involved in the commission of a crime together with other persons. All these persons are called co-perpetrators, since together they perform the objective side of the crime;
"mediocre performer"

Each co-principal does not need to fulfill the entire objective aspect of the crime; To establish co-perpetrators, it is enough that each of the co-perpetrators fulfilled at least part of the objective side of the crime. Thus, in case of rape, the actions of persons who personally did not commit violent sexual intercourse, but who, by using violence against the victim, assisted others in her rape, should be qualified as co-perpetrators of gang rape (see paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2004 No. 11 “On judicial practice in cases of crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation”); murder is recognized as committed by co-perpetrators even if the damage leading to death was caused by one of the co-perpetrators (see: BVS RF. 2000. No. 7. P. 13).

In judicial practice, co-perpetrators are also recognized as more complex cases of distribution of roles between accomplices, when in fact one or another of them assists in the commission of a crime without directly performing the objective side of the crime. However, legally these actions are recognized as co-execution, called the “technical” distribution of roles. Thus, someone who holds a victim in a murder while another inflicts fatal injuries is recognized as a co-perpetrator (see paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 No. 1 “On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation) "), and in the case of theft, co-perpetrator is the commission, with the distribution of roles, of coordinated actions aimed at providing direct assistance to the perpetrator in the commission of the crime (for example, breaking doors, locks, removing the stolen property, insuring other accomplices from possible detection, etc.) (see. clause 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery”).

Another comment on Article 34 of the Criminal Code of the Russian Federation

1. The basis for the liability of accomplices is the presence in their actions of complicity in a crime. The responsibility of accomplices is based on a combination of the principles of accessory (dependence of all accomplices on the actions of the performer), differentiation and individualization. On the one hand, all accomplices are charged with the same article of the Special Part of the Criminal Code as the perpetrator, but on the other hand, the unique role of the accomplice is also taken into account.

2. The responsibility of accomplices is determined by the nature and degree of actual participation in the crime. The legislator points out the need to take into account both the qualitative (character) and quantitative aspects (degree) of complicity in a crime.

The nature of complicity is expressed in the form of interaction (group of persons, etc.) and the role performed (performer, instigator, etc.).

The degree of complicity depends on the volume of actions performed within a particular role. An assistant, for example, can give advice, but can also perform other actions in this role: provide information, remove obstacles, etc.

3. For a jointly committed act, the perpetrators are liable under the article of the Special Part of the Criminal Code without reference to the General Part of the Criminal Code. Accomplices in other roles are liable under the article of the Special Part of the Criminal Code with reference to the relevant part of Art. 33 of the Criminal Code.

A reference to the General Part of the Criminal Code in these cases is necessary due to the fact that the actions of the organizer, instigator and accomplice are not reflected, as a general rule, in the articles of the Special Part of the Criminal Code <1>. In those cases where an article of the Special Part of the Criminal Code reflects the actions of an organizer, instigator or other accomplice, such as, for example, Art. 210 of the Criminal Code, according to competition rules, reference should be made only to the article of the Special Part of the Criminal Code.

——————————– <1> BVS of the Russian Federation. 2000. N 7; 2003. N 3.

4. Part 4 of the commented article regulates the issues of qualification and responsibility for complicity in crimes with a special subject. The latter can be committed (executed) only by persons with the specified specific characteristics.

The actual commission of actions constituting a crime with a special subject by persons who do not possess the characteristics of a special subject cannot be legally assessed as the execution of a crime, since according to the law only a special subject can execute it. The actions of such persons must be qualified as aiding, organizing or inciting a crime to be committed.

5. It should be noted that in crimes where a special subject serves as the basis for constructing a norm with mitigating circumstances, the complicity of other persons becomes objectively impossible and requires qualification under other articles. Thus, not only the perpetrators, but also other accomplices cannot legally participate in the murder of a newborn child by a mother, since such a qualification would give the latter an inexplicable mitigation of responsibility. The actual participation in this crime of a person who is not the mother should be qualified as complicity, but in the same crime without mitigating circumstances. Thus, the actions of a man who participated in the mother’s murder of a newborn child should be qualified as complicity in murder under Art. 105 of the Criminal Code.

6. Part 5 of the commented article expresses the accessory principle of liability of accomplices. If the perpetrator does not complete the crime, then, naturally, other accomplices cannot be held responsible for complicity in the completed crime. They must be held accountable, like the perpetrator, for the preparation or attempted crime, depending on the stage at which it was interrupted. In the case of failed incitement, liability must accrue to the preparation of a crime, since it involves actions to create the conditions for the commission of a crime.

Accomplice and mediator of crime: the prospect of changing the legislative regulation of concepts

Issues of improving the institution of complicity in crime are certainly relevant at the present time. The development of relationships between partners determines the emergence of new roles. However, not every new role requires legislative support. An unreasonable reaction by the legislator can lead to the complication and clutter of criminal legislation. Accordingly, new phenomena require detailed study.

In the science of criminal law, there is a point of view about the need to enshrine in Art. 33 of the Criminal Code of the Russian Federation as a new type of accomplice - a mediator of a crime. According to the lexical interpretation of this word, a mediator is a person with whose participation negotiations are conducted between the parties. [9] Accordingly, there appears to be some similarity between an accomplice and an intermediary of a crime, since the generalized function of an accomplice is to assist the perpetrator in committing the crime. To resolve the issue of the relationship between these concepts, we should consider them in more detail.

The figure of an accomplice to a crime, as opposed to an intermediary, has been enshrined in Russian criminal legislation. According to Part 5 of Art. 33 of the Criminal Code of the Russian Federation: “An accomplice is a person who assisted in the commission of a crime by advice, instructions, provision of information, means or instruments for committing a crime, or removing obstacles, as well as a person who promised in advance to hide the criminal, the means or instruments of committing a crime, traces of a crime or objects obtained by a criminal.” way, as well as a person who promised in advance to purchase or sell such items.” [10]

The type of accomplice in question is characterized by a number of certain characteristics. Firstly, non-participation in the fulfillment of the objective side of the crime committed in complicity, which is a negative sign of complicity. Secondly, a positive sign of complicity is intellectual or physical assistance to other accomplices in committing a crime. Finally, the formal sign of complicity is a list of actions constituting complicity, according to Part 5 of Art. 33 of the Criminal Code of the Russian Federation, exhaustive. [1, p. 57–60] Thus, the last feature seems to be the most interesting in terms of the positions of the Supreme Court of the Russian Federation available on this matter. According to para. 3 paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of application by courts of criminal legislation on liability for tax crimes” in a situation where a person carrying out his business activities through a figurehead (for example, an unemployed person registered as an individual entrepreneur only formally) evaded paying taxes (fees), his actions must be qualified under Art. 198 of the Criminal Code of the Russian Federation as the perpetrator of the specified crime, and the actions of another person, by virtue of Part 5 of Art. 34 of the Criminal Code of the Russian Federation - as his accomplice, subject to the condition that he was aware of his participation in evading taxes (duties), and his intent was aimed at committing this crime. [6] Hence, it seems possible to assert that the list of actions specified in the relevant article of the Criminal Code of the Russian Federation is not exhaustive, although the opposite follows from the grammatical interpretation of this article. Consequently, this provision of the criminal law should be changed in order to ensure that the text of the law corresponds to reality.

It should also be noted that in scientific doctrine it is believed that an accomplice is the least dangerous figure in comparison with other accomplices in a crime. However, not everyone agrees with this position. Thus, M.I. Kovalev draws attention to cases when complicity becomes truly dangerous. As an example of such a situation, he cites a case where the perpetrators are minors, and the accomplices are adults. [4, p. 155] It should be agreed that this scientific position also has a basis.

Having identified the signs of an accomplice, you should move on to analyzing the signs of a crime intermediary. Currently, special attention has been paid to this figure among criminal law specialists. This is due to the fact that in Art. 291.1 of the Criminal Code of the Russian Federation includes mediation in bribery as a separate crime. “Mediation in bribery” is considered as a delictum sui generis - a so-called independent crime of a special kind (such crimes that independently criminalize the actions of one specific type of accomplice include acts provided for in Articles 205 1, 208–210 of the Criminal Code of the Russian Federation and others). As some researchers note, no new actions of the intermediary were criminalized in this case: all of the indicated forms of actions of the intermediary were previously qualified as complicity in giving or receiving a bribe. On the contrary, a certain number of intermediary actions are de facto decriminalized (since they only involve bribes of a significant amount or more), which can lead to a significant weakening of the fight against corruption. [3, p. 175] However, in practice this rule gives rise to many questions. The Plenum of the Supreme Court of the Russian Federation tried to resolve some of the issues that arose in Resolution No. 24 of July 9, 2013 “On judicial practice in cases of bribery and other corruption crimes.” Thus, if a person who promised or offered mediation in bribery then committed a crime provided for in parts 1–4 of Article 291 1 of the Criminal Code of the Russian Federation, as established by the Plenum of the Armed Forces of the Russian Federation, in this case the act committed by him is qualified under the relevant part of this article as mediation in bribery without combination with part 5 of article 291 1 of the Criminal Code of the Russian Federation. [7] From the standpoint of the rules for qualifying crimes, this is quite logical, however, its implementation will cause consequences in which a person who has committed more criminal acts may be held responsible for a crime of a less serious category (Part 5 of Article 291 1 describes a serious crime, Part 1 Article 291 1 - moderate severity).

We must agree with the position that the spread in recent years of the practice of turning the actions of accomplices into a crime sui generis violates the unity of the system of norms of the General and Special Parts of the Criminal Code of the Russian Federation. By increasing the number of norms in the Special Part, which provide for so-called “new types of accomplices,” the legislator is unreasonably complicating the legislation. This also emphasizes that the introduced norms can be covered by the norms of the General Part of the Criminal Code of the Russian Federation. Regarding the issue under consideration, that is, the relationship between the concepts of accomplice and mediator of a crime, the author of this study, based on existing scientific positions, identified two ways to solve it.

The first method lies in the scientific point of view about the need to establish a new type of accomplice in Part 6 of Article 33 of the Criminal Code of the Russian Federation: “An intermediary is recognized as a person who facilitates the establishment of contact between accomplices, acting on behalf of persons participating in a crime in their interests in relations with other persons, and also transmitting the subject of the crime, instruments and means of the crime, messages and other information to accomplices and other persons.” This position is shared by N.V. Artemenko and A.M. Minkova. [2, p. 48] In this case, it seems that the figure of the intermediary requires legislative regulation different from that of the accomplice. However, this legislative initiative is not justified. It contributes to increased specification of the provisions of the General Part of the Criminal Code of the Russian Federation, which, accordingly, leads to an excess of its norms and clutter.

The second method is based on a position that has become quite widespread in modern criminal law. Authors often consider the idea that an intermediary is an accomplice to be an axiom. Thus, T.D. Ustinova believes that ““the intermediary is actually an accomplice in the commission of a crime.” [5, p. 742] According to T.I. Kosareva, “the complicity of an intermediary can be expressed in negotiating with the bribe giver or bribe taker, organizing their meeting, transferring or receiving a bribe, finding bribe givers, etc.” [8, p. 320] However, this position under the current legislation is doubtful, since the norms of Part 5 of Art. 33 establish an exhaustive list of actions of an accomplice. The implementation of this method of solving the problem lies in changing this norm.

Thus, similarities in the actions of the intermediary and the accomplice do exist. So, if we highlight their generalized function, then it comes down to providing specific assistance to the perpetrator in committing a crime. However, it is inappropriate to single out an intermediary as an independent type of accomplice. Accordingly, it is necessary to take into account the functions of this figure in the rule on an accomplice to a crime, which, as already mentioned in the course of this work, needs to be improved.

Literature:

Types of accomplices in crime: a textbook // D. A. Bezborodov. — St. Petersburg: St. Petersburg Law Institute (branch) of the Academy of the Prosecutor General’s Office of the Russian Federation, 2013. pp. 57–60
Dvornichenko O. O. Current problems of complicity in crime: master's thesis 40.04.01. 2021. P. 48
Kachalov V.V. Should new types of accomplices be identified? // News of Tula State University. Economic and legal sciences. 2015. P. 175
Kovalev M.I. Complicity in crime. Ekaterinburg, 1999. P. 155
Commentary on the Criminal Code of the Russian Federation / resp. ed. A. I. Rarog. 9th ed., revised. and additional M., 2013. P. 742
Resolution of the Plenum of the Supreme Court of the Russian Federation of December 28, 2006 No. 64 “On the practice of application by courts of criminal legislation on liability for tax crimes” // SPS “ConsultantPlus” (Date of access: 03/11/2020)
Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 9, 2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes” // ATP “ConsultantPlus” (Date of access: 03/11/2020)
Sungatullin A. Yu. The concept of mediation in criminal law // Modern problems of science and practice. Society and law. 2013. No. 3 (45). P. 320
Ozhegov's explanatory dictionary. S. I. Ozhegov, N. Yu. Shvedova. 1949–1992 // URL: https://dic.academic.ru/dic.nsf/ogegova/175462 (Access date: 03/11/2020)
“Criminal Code of the Russian Federation” dated 06/13/1996 N 63-FZ (as amended on 02/18/2020) // SPS “ConsultantPlus” (Date of access: 03/11/2020)

Art. 33 of the Criminal Code of the Russian Federation. Types of accomplices in crime

Law November 6, 2015
Depending on the function assigned to the participants in the crime, criminal law divides perpetrators, instigators, organizers and accomplices. The Criminal Code contains an article that explains these categories. Let us next consider in detail the existing types of accomplices in crime.

Art. 33, part 3 of the Criminal Code of the Russian Federation

This part explains the concept of organizers of actions. As the subject of Art. 33 of the Criminal Code of the Russian Federation names the person:

Directed the implementation of illegal actions.
Organized the crime.
Having created a group, organization, community for committing illegal acts or leading them.

The organizer is recognized as the most dangerous accomplice in the crime. His actions may consist of developing a plan of action, attracting other persons to and distributing functions between them, directing the direct implementation of illegal actions, and so on.

Instigator

As this subject under Art. 33 of the Criminal Code of the Russian Federation will be considered a person who has persuaded another person to commit an illegal act. In this case, bribery, persuasion, threat or another method may be used.

The instigator thus creates in another person the intention to carry out unlawful acts. Inducement to illegal behavior is qualified under Art.

33 of the Criminal Code of the Russian Federation, if directed at a sane subject who has reached the age of prosecution under criminal law.

Inciting a minor

This act, in addition to the main one, also forms an independent composition.

An entity who persuaded a minor or an insane citizen to commit a crime is considered, as stated above, not an instigator, but a perpetrator.

In such cases, a teenager or other person who is not subject to prosecution acts as a kind of means or instrument of an illegal act. The instigator is thus regarded as the perpetrator.

Art. 33, part 5 of the Criminal Code of the Russian Federation

This part defines an accomplice. Such a subject is the person who contributed to the commission of the unlawful act. This can be done by providing certain information, instructions, advice, tools or means. Art.

33, Part 5 of the Criminal Code of the Russian Federation also calls an accomplice a person who removes obstacles to someone committing illegal actions or the traces left after this, who has promised in advance to hide the means, tools or the culprit himself, to hide or sell items obtained during the act.

Intellectual aiding

It consists of providing information, instructions, recommendations regarding the commission of a crime. This information helps other actors carry out illegal activities, remove obstacles and obtain necessary data. For example, complicity is called intellectual when someone informs the attackers about the absence of the owners in the apartment.

This allows for burglary and theft. In addition, according to Art. 33 of the Criminal Code of the Russian Federation qualifies a promise given in advance to hide the culprit, the instruments or means used in carrying out illegal actions. In this case, a person, knowing about the intentions of another person, contributes to the completion of the act.

In the same aspect, actions expressed in the promise to sell or acquire the objects of a crime are considered.

Physical aiding

It can be expressed in various actions. For example it could be:

Providing the criminal with the necessary tools or means to subsequently commit acts. For example, transferring weapons to persons planning a robbery.
Removing obstacles. We are talking here about creating the necessary conditions favorable for committing a crime. For example, this could be a power outage in the apartment, damage to the alarm system, and so on.

Physical assistance is also called assistance in the case when the “assistant” monitors the situation in order to timely warn attackers about the possible intervention of unauthorized persons. Unlike intellectual assistance, it can be expressed both in the form of action and as inaction.

According to the decision of the Judicial Collegium of the Supreme Court, complicity involves knowing knowledge and awareness of such entities about the actions of attackers. Thus, the guilty person realizes that he is helping others to commit a specific act, foreseeing its overall result, and consciously allowing or willing its occurrence.

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Types of accomplices

One of the conditions for accurately qualifying the crime committed is the correct identification of the types of accomplices, which contributes to making the right decision regarding the nature and degree of participation of each participant, and ultimately, an important condition for individualizing the responsibility of accomplices.

According to Part 1. Art. 33 of the Criminal Code of the Russian Federation, the organizer, instigator and accomplice are recognized as accomplices in the crime, along with the perpetrator (Fig. 15).

Performer

(Part 2 of Article 33 of the Criminal Code) is recognized as a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code.

For example, the perpetrator of a murder is the person who stabbed the victim with a knife, the perpetrator of a robbery should be considered the one who committed the open theft of someone else’s property, etc.

Co-perpetrator is characterized by the fact that a person (co-perpetrator), who, although does not commit the actions specified in the relevant article of the Special Part of the Criminal Code of the Russian Federation, but, being together with other perpetrators at the scene of the crime, provides them with direct assistance. For example, he holds the victim by the legs during rape, breaks down the door in a store through which the co-perpetrator enters and steals goods during theft, etc.

Under execution of a crime

it is necessary to understand not only the direct commission of certain actions, but also the indirect infliction of a socially dangerous result using another person as an instrument of crime.

For example, the culprit involves a minor in committing theft, but does not directly take part in it, but sends him to enter the house through the window and steal certain things. In this case, it is necessary to say that the objective side of the crime (i.e. theft as the secret theft of someone else’s property) was committed by an adult criminal. If a person, inciting an insane person, for example, to murder, gave him a knife for this purpose, he is the perpetrator of the murder, and the insane person is his instrument. The above examples are reflected in judicial practice. Thus, in accordance with the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery”, a person who organized a crime or incited to commit theft, robbery or robbery is obviously not subject to criminal liability participant in the crime, in accordance with part two of Art. 33 of the Criminal Code of the Russian Federation, bears criminal liability as the perpetrator of the crime. If there are grounds for this, provided for by law, the actions of the specified person must be additionally qualified under Art. 150 Criminal Code of the Russian Federation.1

In some cases, judicial practice also follows the path of recognizing a crime committed by a person (persons) who is not subject to criminal liability due to young age or insanity (Articles 20 and 21 of the Criminal Code of the Russian Federation) as complicity. In this regard, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 22, 1994 No. 10 (with subsequent amendments and additions) “On judicial practice in cases of rape” states that the actions of a participant in a gang rape are subject to qualification as rape committed by a group of persons ( clause “b”, part 2 of Article 131 of the Criminal Code of the Russian Federation), regardless of the fact that the remaining participants in the crime were not brought to criminal responsibility, or due to the requirements of Art. 20 of the Criminal Code of the Russian Federation (under the age of criminal responsibility), or on other grounds provided by law.2

Organizer of the crime

(Part 3 of Article 33 of the Criminal Code of the Russian Federation) a person who organized the commission of a crime or supervised its execution is recognized, as well as a person who created an organized group or criminal community (criminal organization) or supervised them.

The organizer is the most dangerous participant in joint criminal activity. Most often, his activities are associated with the commission of crimes in the most dangerous forms of complicity, such as an organized group and a criminal community. However, an organizer can also appear in cases of complicity without prior agreement, when one of the co-perpetrators in the process of committing a crime takes over the leadership of other accomplices, which significantly increases the public danger, especially in crimes such as hooliganism, riots, etc.

The activities of the organizer are expressed by a number of certain characteristics. First of all, he is the initiator of both the criminal community and the commission of individual crimes. He selects accomplices, unites them, maintains discipline among them, determines forms of communication between members of the organization, develops plans for criminal activities, outlines methods for their implementation, distributes roles between members of the community, i.e. carries out management of the organization’s activities in preparation for committing crimes. He can also directly control members of the organization during criminal attacks and is not deprived of the opportunity to play the role of instigator or even perpetrator. In the case of such a combination (when the organizer performs, for example, the function of an instigator), his role should be indicated by reference to Part 3 of Art. 33 of the Criminal Code of the Russian Federation, if the criminal law norm of the special part of the Criminal Code of the Russian Federation does not establish responsibility for organizational actions. For example, when qualifying a crime under Art. 210 of the Criminal Code of the Russian Federation (Organization of a criminal community (criminal organization) reference to Part 3 of Article 33 of the Criminal Code of the Russian Federation is not required. Reference to Part 3 of Article 33 of the Criminal Code of the Russian Federation is not required even if the organizer is also a co-perpetrator of the crime.

From the subjective side, the activity of the organizer is characterized only by direct intent, since he knows about the nature of the actions that must be performed by other participants, about the composition of the group, foresees that socially dangerous acts will be committed as a result of his activities and desires this.

Due to the fact that organized criminal activity poses a special danger, the legislator in some cases establishes liability directly for the organization of socially dangerous acts. For example, in the disposition of Part 1 of Art. 212 of the Criminal Code of the Russian Federation establishes liability for organizing mass riots.

Instigator

(Part 4 of Article 33 of the Criminal Code of the Russian Federation) is recognized as a person who has persuaded another person to commit a crime by persuasion, bribery, threat or other means.

An instigator is distinguished from other accomplices by his specific activity, which lies in the fact that he influences the will of another person, generates and arouses in him the determination (i.e. intent) to commit a certain crime. The forms of incitement activity can be very diverse: oral, written, etc. Methods and means of inciting determination may depend on the nature of the relationship between the instigator and the instigated, on their subjective characteristics, etc. These include requests, persuasion, gifts, various promises (for example, to get a prestigious job), threats of violence, etc.

From the objective side

incitement manifests itself only in action on the part of the instigator and is aimed at arousing the perpetrator’s determination to commit a specific crime. Here a causal connection must be established between the actions of the instigator and the final criminal result of the joint criminal activity of the accomplices. In this case, the incited person must clearly imagine what crime he is being encouraged to commit. General calls to commit a socially dangerous act that are not addressed to a specific person are not incitement.

The process of incitement can be divided into the following stages.

First

the link is the result of the influence of the instigator on the instigated, which is the generation of the perpetrator’s determination to commit a specific crime.

Second

The link is the socially dangerous act directly committed by the perpetrator, aimed at committing a crime.

Third

The link is the final criminal result resulting from the actions of the instigator specified in the specific crime. (Here we are talking about committing crimes with material components.)

As you can see, incitement is always specific. It is impossible to induce non-specific persons to commit crimes, as well as without specifying the target of the attack.

Incitement may be directed at one or more persons, and the circle of persons must always be specific.

From the subjective side

incitement is characterized by the presence of only intentional guilt and, as a rule, is committed with direct intent. At the same time, the instigator is aware that by his actions he arouses the determination of another person to commit a specific crime, actively directs his will to achieve precisely this goal and desires.

An example of incitement is the following case. Zeltsov, working in the same institution with Kryukova, invited her to systematically meet with him in an intimate setting. Having received a refusal, he decided to take revenge on her. Knowing the hot temper of her husband, with whom they maintained friendly relations, he informed him that his wife often met with her lover. During one drink, Zeltsov constantly told Kryukova’s husband that a self-respecting man could not put up with such circumstances. Arriving home, out of jealousy, he inflicted several knife wounds on Kryukova, from which she died. In this case, Zeltsov is the instigator of the murder of Kryukova by her husband.

There are circumstances when a person’s actions objectively indicate incitement to a crime, but if this person did not have such intent, he cannot be an accomplice to the crime. So, Dronov told his neighbors in the garage that his friend bought a new car, which, due to the lack of a garage, is parked near the entrance of his house. One of those present during such a conversation committed the theft of this car the next day. Here Dronov cannot be considered an instigator of theft, since he did not have the intention to induce anyone to commit this crime.

Accomplice to the crime

(Part 5 of Article 33 of the Criminal Code of the Russian Federation) is recognized as a person who assisted in the commission of a crime by advice, instructions, provision of information, means or instruments of committing a crime or by removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments of committing crimes, traces of a crime or items obtained by criminal means, as well as a person who promised in advance to purchase or sell such items.

This legislative formulation provides an exhaustive list of ways to assist the perpetrator of a crime. Complicity differs from execution in that the help of an accomplice generally precedes the fact of committing a crime, however, if it coincides in time with it, it is not expressed in direct participation in the performance of actions specified in the relevant article of the Special Part of the Criminal Code of the Russian Federation.

It should also be taken into account that for complicity it is necessary that the accomplice have certain information about the composition of the alleged crime at the time he commits actions to facilitate the crime. If the perpetrator did not use the help of an accomplice or it was too insignificant and could not have any influence on the development of the causal relationship, this excludes complicity in the crime.

Depending on the method of assistance

complicity is divided into physical and intellectual.

Physical aiding

(or material) is to provide means or tools for the effective implementation of a criminal plan or the removal of obstacles. It is aimed at providing material or physical assistance to the perpetrators of the crime during its preparation, commission or concealment of traces of the crime, as well as the criminal himself.

The provision of means or instruments must be understood as any action that facilitates the opportunity to begin or complete a crime (for example, providing the perpetrator of the alleged murder with a pistol or transport for the removal of stolen goods).

Removing obstacles to committing a crime can include, for example, giving sleeping pills to the guard guarding the warehouse, turning off the alarm in the room from which the theft is planned, etc.

Physical complicity is completed at the moment when the instruments or means of committing the crime were actually used by the offender, as well as when the obstacles to the commission of the crime were removed.

Intellectual aiding

expressed in giving advice, instructions, providing information, promising to hide the criminal, means or instruments of committing a crime, traces.

It should be noted that intellectual complicity has a certain similarity with incitement, but differs from the latter in that it is not a criminal initiative, but only supports it.

As noted above, incitement is aimed at inciting determination to commit a crime. Intellectual assistance is aimed at consolidating the determination that has already arisen.

Sometimes intellectual complicity is combined with the organization of a crime or co-execution.

The subjective side of the accomplice’s act is characterized by both direct and indirect intent. Mere approval of a crime that did not influence the formation of the perpetrator's intent is not complicity, since there is no causal connection.

Unlike the perpetrator, the accomplice does not directly participate in the commission of the criminal act, i.e. it is not related to the fulfillment of the objective side of the crime.