The issue of legal regulation and the distinction between vehicle theft and theft has received a lot of attention from both legal theorists and law enforcers.
The Supreme Court of the Russian Federation expressed its legal position on this issue in the Resolution of the Plenum of December 19, 2008 No. 25. The issue of decriminalization of Art. 166 of the Criminal Code of the Russian Federation, which provides for liability for theft, for the last time in 2021. But the bill did not receive a positive opinion from the Legal Department of the State Duma of the Russian Federation.
Let us consider in detail the legal aspects of qualifying an act under Art. 166 of the Criminal Code of the Russian Federation.
The concept and characteristics of the crime provided for in Art. 166 of the Criminal Code of the Russian Federation
First of all, let’s understand what is the unlawful taking of a car or other vehicle without the purpose of theft. Theft of a vehicle, in accordance with Article 166 of the Criminal Code of the Russian Federation, means the seizure of not only a car, but also any other vehicle.
It is important what takeover is:
- is illegal
- and also committed without the purpose of theft (for example, for the purpose of a ride), that is, the thief does not have a selfish motive and selfish goal, he does not plan to appropriate the vehicle for himself or thus enrich anyone else.
As already mentioned, in accordance with Article 166 of the Criminal Code of the Russian Federation, theft of not only a car is punishable. In accordance with paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25, such vehicles are those that require a special permit or special right to drive: for example, self-propelled vehicles, buses, trams, motor boats, and so on.
Will stealing a bicycle or rowing boat be punishable under Article 166 of the Criminal Code of the Russian Federation?
The same 21 paragraphs of the Resolution give an unequivocal negative answer to this question.
Of course, most often in judicial practice there are cases of car theft.
However, on December 9, 2021, the Baykitsky District Court of the Krasnoyarsk Territory found V.R. Ankoul guilty. and Kapchulenka A.R. in the attempted theft of a motor boat by a group of persons by prior conspiracy.
The victim secured his motor boat near the shore with a track, when he was returning home, he noticed that he and his boat were being watched by two guys who were not yet familiar to him - Ankoul V.R. and Kapchulenok A.R., and the latter was clearly intoxicated.
This circumstance could not help but alert the victim, so upon returning home, he asked his grandson to check the boat off the shore. It was the victim's grandson who discovered that two guys were in the boat, trying to start it. However, the victim installed a special Korean engine in the boat, which can only be started using the ignition key. The defendants did not have such a key, so they were unable to complete their criminal plan.
The court sentenced both guilty parties to a fine.
Commentary to Art. 166 Criminal Code
1. The subject of the crime is a car or other vehicle (clause 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25 “On judicial practice in cases of crimes related to violation of the Rules of the Road and the operation of vehicles, as well as their unlawful taking without the purpose of theft”).
2. The objective side is expressed in the action of secretly or openly taking possession of a car or other vehicle, i.e. their capture with the intention of moving them from their location by any means (self-propelled, towing, etc.).
3. The crime is considered completed from the moment the vehicle leaves or moves from the place where it was located (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 9, 2008 No. 25).
4. The subjective side is characterized by direct intent and the absence of a purpose for theft by the perpetrator, i.e. intentions to appropriate a car or other vehicle in whole or in parts.
At the same time, the actions of a person who took possession of a car or other vehicle, even without the permission of the owner or other owner, but which he regularly used for work, as well as due to family or other personal relationships, do not constitute a crime.
5. Qualifying features (parts 2 - 4) partially coincide with the corresponding features of Art. 158 of the Criminal Code, and are also disclosed in paragraphs 23 - 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 9, 2008 No. 25.
Corpus delicti
The corpus delicti is four elements, a set of characteristics (both objective and subjective) that makes it possible to define an act as criminal.
Let's consider the elements of the crime provided for in Article 166 of the Criminal Code of the Russian Federation (vehicle theft).
An object
That social relationship to which harm is caused (or the threat of such harm is created).
Theft of a vehicle is an encroachment on such an object as property relations. Optional objects may include road safety (if a trip is made in a stolen car) or even human health or life (if violence was used for the purpose of theft).
Objective side
This is the so-called external side of the crime. This element includes the action itself, prohibited by criminal law, and often also the consequences that occurred and the cause-and-effect relationship between them. In addition, signs of the objective side are the method of committing the crime, the situation and the time.
The objective side of the crime prohibited by Article 166 of the Criminal Code of the Russian Federation is the seizure of a vehicle.
The appeal ruling of the Supreme Court of the Russian Federation dated 09/07/2017 N 59-APU17-9 states that the objective side of this crime is expressed in the seizure of someone else’s car or other vehicle and its conversion into temporary actual possession by the perpetrator against the will and consent of the owner.
Paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25 states that the objective side of this composition includes two acts:
- takeover
- and trip.
Moreover, they are not alternative, that is, in order for the theft of a vehicle to be considered completed, it is necessary that the person not only took possession of the car, but also started moving, that is, made a trip.
Subject
In accordance with the articles of the Criminal Code of the Russian Federation, this is a sane person who has reached sixteen years of age (and for some crimes - fourteen years of age).
The subject of a crime prohibited by Article 166 of the Criminal Code of the Russian Federation is a sane individual who has reached the age of fourteen (Article 20 of the Criminal Code of the Russian Federation).
Subjective side
Antonym of the objective side, the internal side of the crime, the attitude of the person committing the crime to his act. The subjective side includes guilt, motive and purpose.
The subjective side of theft is expressed by direct intent, that is, it is necessary to be aware of the socially dangerous nature of the act, as well as to desire the occurrence of socially dangerous consequences.
So, in June 2021, two criminals agreed in advance to commit a crime. Deliberately, jointly and in concert, on the night of June 7, they approached a VAZ-2106 car and used a folding knife to open the passenger seat door. After that, they were able to get into the car’s interior, and then, using the already known method (by jumping wires), they started the engine.
The travel distance was only 4 meters, after which the criminals crashed into a nearby house.
The court noted that the perpetrators actually had direct intent and consciously committed this act. At the same time, it is important to understand that the subjective side of this crime plays a very important role in qualifying the act, because it allows you to distinguish between theft of a vehicle and theft.
Paragraph 28 of the Resolution of the Plenum of the Supreme Court No. 25 states that the absence of selfish motives, that is, a selfish motive, when stealing a vehicle, gives the court grounds to classify this act under the relevant part of Article 166 of the Criminal Code of the Russian Federation in the presence of other elements of a crime.
Based on this, we can conclude that the absence of selfish motives is a criterion for distinguishing this composition from related ones related to the theft of a vehicle. During theft, a person does not have the goal of enriching himself at the expense of someone else’s property or turning it to his own advantage, since he plans to return the displaced vehicle to the owner.
This means that for qualification, only the absence of a purpose for the theft of a vehicle is important, namely the absence of circulation of the vehicle in favor of the subject of the crime or other persons. All other goals and motives that characterize the optional features of the subjective side of the crime will not matter for the qualification of theft. The presence of direct intent on the part of a person is a mandatory criterion.
Recommended reading:
What is the difference between car theft and theft?
Criminal legal characteristics of car theft
Bicycle theft
What is considered an assassination attempt?
When attempting a crime (Part 3 of Article 30 of the Criminal Code of the Russian Federation), all actions included in the objective side are committed, but the person cannot complete the criminal actions. This happens not at all because he changed his mind, felt sorry for the victim, decided to take the path of correction before committing the crime, but precisely because he cannot, that is, certain circumstances have arisen that do not allow him to complete the crime, but they are against the will of the subject.
As noted earlier, in accordance with paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25, theft is a completed crime from the moment the vehicle begins to move . In this case, it does not matter at all whether the journey is 15 kilometers or 15 centimeters, the main thing is that the trip has begun.
Accordingly, an attempt to commit a crime prohibited by Article 166 of the Criminal Code of the Russian Federation is recognized as any action or any set of actions that are an attempt to break locks, turn off the alarm, or ignite the engine (clause 20 of the above-mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25) .
In accordance with Part 3 of Article 66 of the Criminal Code of the Russian Federation, the punishment for attempted (attempt) to steal a vehicle:
- for “ordinary” theft of a vehicle cannot exceed 3 years 9 months of imprisonment;
- for an attempt to commit a crime prohibited by part 2 of Article 166 of the Criminal Code of the Russian Federation, should not exceed 5 years 3 months of imprisonment;
- qualification of an act under Part 3 of Article 30, Part 3 of Article 166 of the Criminal Code of the Russian Federation entails a penalty not more severe than 7 years 6 months of imprisonment;
- Attempted takeover of a vehicle with the use of violence dangerous to life (or with the threat of such violence) carries a maximum penalty of 9 years in prison.
An example from judicial practice
The Novocheboksarsk City Court of the Chuvash Republic found guilty. On February 26, 2021, A.Yu. Mikhailov was found guilty. of committing two attempted vehicle thefts at once.
- In the first case , he was drunk and decided to pick the lock of a car parked in the yard of his house. After entering the car, he tore the fabric covering of the steering wheel and repeatedly tried to connect the wires in such a way as to start the engine. However, not a single attempt was successful, which means Mikhailov A.Yu. was unable to complete the crime due to circumstances beyond his control.
- In the second case , when he was again intoxicated, Mikhailov A.Yu. noticed that his neighbor's car door was unlocked. Then he got inside again, tore the steering wheel trim again, took out the wires again, tried to start the car engine again, and... again he couldn’t do it.
For each of the crimes committed, the court sentenced Mikhailov A.Yu. to imprisonment for 6 months. Taking into account the rules for adding punishment, Mikhailov A.Yu. imprisoned for 8 months.
Judicial practice under Article 166 of the Criminal Code of the Russian Federation
Resolution of the Presidium of the Supreme Court of the Russian Federation dated March 29, 2017 N 187P16pr
under paragraph “a” of Part 2 of Art. 166 of the Criminal Code of the Russian Federation for 4 years; according to Part 2 of Art. 167 of the Criminal Code of the Russian Federation for 5 years; for aggregation of crimes on the basis of Part 3 of Art. of the Criminal Code of the Russian Federation for 25 years with serving the sentence in a high-security penal colony.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated April 26, 2017 N 48P17
Convicted: under paragraphs “g”, “z”, part 2 of Art. 105 of the Criminal Code of the Russian Federation to 15 years in prison, under paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation to 10 years in prison, under paragraph “a”, part 2 of Art. 166 of the Criminal Code of the Russian Federation to 3 years in prison.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 4, 2017 N 72-APU17-21
- part 4 art. 166 of the Criminal Code of the Russian Federation - for 7 years 5 months of imprisonment; - clause “a”, part 4, art. 162 of the Criminal Code of the Russian Federation (in relation to A.) - 9 years in prison with a fine of 250,000 rubles;
Resolution of the Presidium of the Supreme Court of the Russian Federation dated April 11, 2018 N 10-P18
according to Part 4 of Art. 166 of the Criminal Code of the Russian Federation for 8 years; according to paragraphs “g”, “k”, part 2 of Art. 105 of the Criminal Code of the Russian Federation for 15 years; on the basis of Art. Criminal Code of the Russian Federation for aggregation of crimes for 17 years.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06/07/2018 N 43-APU18-3
— December 24, 2009, taking into account the changes made, under Part 1 of Art. 166, part 5 art. of the Criminal Code of the Russian Federation to 6 years 6 months of imprisonment; — March 9, 2021 under Part 1 of Art. 158 of the Criminal Code of the Russian Federation to 8 months in prison, the sentence was served on August 27, 2021,
Resolution of the Presidium of the Supreme Court of the Russian Federation dated June 20, 2018 N 63P18
Chernov Denis Grigorievich, ... convicted on November 12, 2013 under clause “a”, part 2 of art. 161, paragraph “a”, part 2, art. 166 of the Criminal Code of the Russian Federation to 2 years of suspended imprisonment with a probationary period of 2 years,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 20, 2018 N 64-APU18-2
- under Part 4 of Article 166 of the Criminal Code of the Russian Federation for 8 years; - under paragraph “c” of part 2 of article 158 of the Criminal Code of the Russian Federation for 2 years; - under Part 1 of Article 167 of the Criminal Code of the Russian Federation for 1 year 6 months of imprisonment.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 07/05/2018 N 14-APU18-12sp
Zotov Sergey Ivanovich, ... convicted on October 21, 2010 under Art. 166 part 2 paragraph “a” of the Criminal Code of the Russian Federation to 1 year 6 months of suspended imprisonment; August 10, 2011 under Art. 158 part 2 paragraph “c” of the Criminal Code of the Russian Federation on the basis of Art. of the Criminal Code of the Russian Federation to 2 years in prison, released on August 9, 2013 after serving the sentence,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 15, 2018 N 44-APU18-7
- December 18, 2008 by the Vereshchaginsky District Court of the Perm Territory under clause “a”, part 2 of art. 166, part 1 art. 158 of the Criminal Code of the Russian Federation to 2 years 3 months of imprisonment on the basis of Art. The Criminal Code of the Russian Federation is conditional with a probationary period of 1 year;
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 28, 2018 N 58-APU18-7sp
SEREDYUK Igor Aleksandrovich, ... convicted on July 24, 2008 under Art. 161 part 1 of the Criminal Code of the Russian Federation to 1 year 5 months of imprisonment; December 22, 2009 under Art. 166 part 2 paragraph “a” of the Criminal Code of the Russian Federation to 2 years of imprisonment; On December 17, 2010, under Article 313 Part 2 of the Criminal Code of the Russian Federation on the basis of Art. of the Criminal Code of the Russian Federation to 5 years 4 months of imprisonment, released on July 24, 2015 after serving the sentence,
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 08/09/2018 N 78-APU18-16
Part 1 Art. 166 of the Criminal Code of the Russian Federation to 2 years of imprisonment, and for the totality of crimes determined according to the rules of Part 3 of Art. of the Criminal Code of the Russian Federation, by partial addition of the imposed penalties - to 15 years of imprisonment to be served in a maximum security correctional colony, with restriction of freedom for a period of 1 year, with the establishment of restrictions: not to change the place of residence without the consent of a specialized government body; not to travel outside the territory of the municipality corresponding to his place of residence after serving a prison sentence, with the imposition of the obligation to appear once a month to register with a specialized state body that supervises the serving of convicts sentences in the form of restriction of freedom.
Qualifying features
Qualifying characteristics are those circumstances of the crime that contribute to the differentiation of criminal liability. The basis in this case is increased public danger.
- Part 2 of Article 166 of the Criminal Code of the Russian Federation establishes criminal liability for theft by a group of persons by prior conspiracy, as well as with the use of violence, but only that which is not life-threatening.
In this case, a group of persons committing a crime by prior conspiracy is recognized as persons - accomplices who in advance, that is, even before the beginning of the execution of the objective party, agreed to commit a crime together. Most often, they agree in advance on the time and place of the crime, and also distribute functions among themselves: which of them will perform what task.
Such a conspiracy does not have to be oral or written; sometimes certain looks and gestures are sufficient. The fact is that a group of persons by prior conspiracy requires a lower degree of co-organization than, for example, an organized group.
Violence that does not pose a threat to life is understood as violence that causes pain to the victim, but does not pose any particular danger. Thus, such violence can include tying hands, including with handcuffs, beatings, that is, blows that can leave bruises and abrasions.
- Part 3 of Article 166 of the Criminal Code of the Russian Federation prohibits the unlawful taking of another person’s vehicle, which was committed either by an organized group or caused particularly large damage to the victim.
At the same time, an organized group is characterized by a high level of co-organization and stability; often individuals unite to commit several crimes at once, and therefore the roles are distributed among the participants in advance, and the function of each of them is clearly defined.
Particularly large damage - damage exceeding 1 million rubles. Moreover, as stated in paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, such damage must be understood as the damage that was caused to the car or other vehicle during the theft.
For example, Moiseev A.V. worked as a car wash. When another car was brought to the station, he took the keys to it, which the owner had left so that the workers could polish the interior. However, Moiseev A.V. didn’t do any polishing, but simply stole the vehicle.
He lost control, crashed into a curb and damaged an Audi car, causing damage to the victim in the amount of 1,795,389 rubles. The Zheleznodorozhny District Court of Penza recognized Moiseev A.V. guilty of committing a crime prohibited by part 3 of article 166 of the Criminal Code of the Russian Federation.
- Part 4 of Article 166 of the Criminal Code prohibits all of the above acts if they were committed with the use of violence (or with the threat of its use), but unlike Part 2 of Article 166 of the Criminal Code of the Russian Federation, this violence must be life-threatening.
That is, the result of the use of such violence is serious harm to the health of the victim or harm to the health of moderate severity, and in the event that the victim has lost his general ability to work (even slightly, but persistently), then even slight harm to health.
For example, Listen to V.Yu. was in the rear passenger seat when he wrapped a rope around the driver's throat and began to choke him. He shouted that he would kill the driver in order to take possession of the car. Fortunately, the victim managed to escape from the car.
The Zheleznodorozhny District Court of the city of Ulan-Ude of the Republic of Buryatia found Slukhay V.Yu guilty of committing a crime prohibited by part 4 of Article 166 of the Criminal Code of the Russian Federation, punishment - 4 years of imprisonment in a special regime colony.
Vehicle theft committed while intoxicated
The criminal law (Part 1.1. Article 63 of the Criminal Code of the Russian Federation) classifies committing a crime while intoxicated as aggravating circumstances.
The court, imposing punishment for a crime under Art. 166 of the Criminal Code of the Russian Federation (vehicle theft) and committed while intoxicated, has the right to choose the most severe of those specified in the sanctions.
This circumstance was taken into account by the Khomutovsky District Court of the Kursk Region when passing a sentence and finding A.V. Eskov guilty of committing theft. The culprit saw someone else’s car parked near the garage and decided that it was on it that he would drive to the tourist base where he was vacationing at that moment Friends.
The next day, Eskov planned to return the car to its original place, apparently hoping that the owner would not notice that it was missing. Eskov A.V. himself admitted in court that he was going to visit his friends only to take alcohol from them. If he had been sober, he certainly would not have committed the crime.
Theft of a vehicle without theft purpose
Every crime implies the presence of:
- subject of a criminal act,
- subject
- subjective and objective aspects of the offense.
The subject of this crime is a vehicle. The legislation states that this is a vehicle that can be used to move on land or water:
- cars,
- boats and motor boats,
- motorcycles,
- tractors,
- other vehicles equipped with an internal combustion engine or an engine powered by electricity.
It is worth noting: theft of a bicycle, rowing boat, canoe, horse-drawn cart, or trailer does not fall under the jurisdiction of Art. 166 of the Criminal Code of the Russian Federation.
The subject of the theft is a legally capable citizen, 14 years of age or older.
The objective side of the criminal act is manipulation to illegally take possession of a vehicle and set it in motion. Moreover, if this action is committed by relatives or friends of the owner of the vehicle who have previously used this vehicle, then such an event does not contain the elements of a crime considered by Art. 166 of the Criminal Code.
The subjective side is the presence of thoughts of theft without committing theft of both the vehicle itself and its parts.
The crime is considered committed from the moment the vehicle begins to move, regardless of how it was carried out. The vehicle can move independently (if functional capabilities are available), towed, pushed by hand or transported on another vehicle.
Vehicle theft committed by a minor
Criminal liability for unlawful seizure of a vehicle for a minor begins at the age of 14 (Article 20 of the Criminal Code of the Russian Federation). Article 88 of the Criminal Code of the Russian Federation establishes certain restrictions regarding the types and amount of punishment that can be imposed on a minor for committing a crime, including theft of a vehicle.
The following rules can be distinguished:
- When imposing a punishment for committing a grave or especially grave crime in the form of imprisonment, the court must choose the lowest limit of the sanction and reduce it to half. Imprisonment cannot be imposed for more than 6 years.
- A fine can be imposed both if the minor has a source of income and if he does not have his own income, because then paying the fine becomes the responsibility of his parents or legal representatives.
- Despite the fact that Part 1 of Article 166 of the Criminal Code of the Russian Federation provides for a restriction of freedom of up to 3 years, such a punishment can only be imposed on a minor for 2 years.
Definition of theft and penalties
Theft is the unlawful taking of a vehicle for its intended purpose, such as travel. Encroachment on the property rights of the owner is not the main purpose of theft, which creates a great resonance in society.
A hijacker is considered to be a person who does not have the following documents:
- Certificate for the right to drive a vehicle (vehicle) of a certain category.
- Registration documents.
- Power of attorney to drive a car.
Theft is the taking possession of someone else's mechanical vehicle, as well as driving it without selfish intent. The elements of the crime are based on violation of public safety and encroachment on property.
The legislation of the Russian Federation identifies different classification criteria for theft, and therefore responsibility for this crime is ambiguous:
- Fine up to 120 thousand rubles, imprisonment for up to 5 years, if the theft was committed by one person.
- Imprisonment for up to 7 years if the crime was committed by two or more persons. Punishment will be applied in the event of violence or minor bodily injury to the victim during the taking of the car.
- The punishment provided for the theft of a vehicle worth more than a million rubles is carried out by imprisonment for 10 years. In cases of violence resulting in grievous bodily harm, the offender faces imprisonment for up to 12 years.
Most vehicles are considered sources of increased danger, and therefore special permits are required to operate them.
