Article 209 of the Criminal Code of the Republic of Belarus. Fraud. Criminal Code of the Republic of Belarus

Pravnik.Bai 12/07/2016

Fraud is the intentional unlawful gratuitous taking of another’s property or the right to property for personal gain through deception or abuse of trust. A distinctive feature of fraud is that the fraudster takes possession of the victim’s property using the misconception of the person who transfers it or does not prevent the seizure.

Contact fraud lawyers in Minsk: 220052, Minsk, st. Gursky, 46, office. 310 (Mikhalovo metro station) tel..

This article is aimed at providing the reader with a brief practical commentary on Article 209 of the Criminal Code of the Republic of Belarus (hereinafter referred to as the Criminal Code of the Republic of Belarus).

Legal characteristics

The target of a fraudster can be any inviolable property:

cash;
important documents;
own things;
movable and immovable property;
securities, travel tickets and anything that can act as a cash equivalent;
property rights in the form of obligations to repay debt;
product of intellectual activity.

Criminal liability for fraud is provided if the fact of a fraudulent “illusion” as a means of misleading the victim has been proven, i.e. the fraudster deliberately provided false information or kept silent about important information, for example, the object of the scam was a counterfeit product. However, false information cannot include a personal assessment, which is only subjective in nature and not reliable data.

Breach of trust is proven if the victim was deliberately misled about the further course of the transaction and the behavior of the suspect when transferring to him any property or the right to it, and is not associated with distortion of factual data. Trust may be based on a pre-existing trusting relationship between the perpetrator and the victim due to kinship, official position or friendship.

Petty theft

A concept similar to fraudulent actions is considered under Article 10.5 of the Code of Administrative Offenses of the Republic of Belarus (Code of Administrative Offences). Petty theft means the appropriation of things of a legal entity that are valued at 10 basic units or less, and in relation to an individual, the figure should not exceed two basic units on the day the crime was committed.

An exception to the rule is the illegal appropriation of medals, orders, badges of honorary titles, as well as the commission of an act by a group of persons (a full list of notes can be found in Part 4.24 of the Criminal Code of the Republic of Belarus). From January 2021, the base value is RUB 24.50. According to the resolution of the Plenum of the Supreme Court of the Republic of Belarus, in order to determine the appropriate value of stolen property, it is necessary to proceed from the circumstances of their acquisition by the owner, as well as from market, retail, commission and other prices on the day the theft occurred. In the case where there is no price, and in other possible cases, experts are contacted to establish the cost.

Criminal liability for fraud and petty theft

Petty theft of property by fraud, as well as attempted fraud, is punishable under Article 10.5 of the Code of Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Republic of Belarus). The concept of petty theft is given in the note to Article 10.5 of the Code of Administrative Offenses of the Republic of Belarus, where petty theft means the theft of property of a legal entity in an amount not exceeding 10 basic units, and in relation to an individual - no more than 2 basic units on the day the act was committed, with the exception of the theft of an order, medals, badges for the honorary title of the Republic of Belarus or the USSR, or theft committed by a group of persons. (see part 4 of the note to Chapter 24 of the Criminal Code of the Republic of Belarus). In accordance with paragraph 1 of the Resolution of the Council of Ministers of the Republic of Belarus dated November 28, 2016 N 974, the base amount is 23 rubles from January 1, 2021.

According to Part 4, Clause 25 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated December 21, 2001 N 15 “On the application by courts of criminal legislation in cases of theft of property,” when determining the value of stolen property, one should proceed, depending on the circumstances of its acquisition by the owner, from state retail stores , market, commission or other prices on the day the crime was committed. In the absence of a price, and if necessary, in other cases, the value of the property is determined on the basis of an expert’s opinion (read more in our article “Amount of theft: calculation features and criminal legal significance”).

Criminal liability for fraud is established in Article 209 of the Criminal Code of the Republic of Belarus (hereinafter referred to as the Criminal Code of the Republic of Belarus). A person who has reached the age of sixteen at the time of committing fraud is subject to criminal liability, with the exception of cases provided for by the Criminal Code of the Republic of Belarus.

Article 209 of the Criminal Code of the Republic of Belarus consists of four parts and differentiates criminal liability depending on the presence of qualifying signs of fraud in the actions of the perpetrator. If one crime contains several qualified characteristics provided for by different parts, liability arises for the more serious of them. Within one part of Article 209 of the Criminal Code of the Republic of Belarus, the type and amount of punishment mainly depend on the amount of damage due to fraud, as well as the presence of mitigating and aggravating circumstances in the actions.

Part 1 of Article 209 of the Criminal Code of the Republic of Belarus

Part 1 art. 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraud in the amount of:

from 10 to 250 basic units (from 230 to 5750 rubles) in relation to a legal entity;
from 2 to 250 basic units (from 46 to 5,750 rubles) in relation to an individual;
regardless of the amount - in case of theft by fraud of an order, medal, badge for the honorary title of the Republic of Belarus or the USSR.

Criminal fraud under Part 1 of Art. 209 of the Criminal Code of the Republic of Belarus falls into the category of a less serious crime; the statute of limitations for bringing to justice from the date of commission of the crime is five years.

The sanction of Part 1 of Article 209 of the Criminal Code of the Republic of Belarus as amended by the Law of the Republic of Belarus dated January 5, 2015 No. 241-Z provides for the following alternative main types of punishment:

community service for a period of sixty to two hundred and forty hours;
a fine from thirty to one thousand basic units (from 690 to 23,000 rubles);
correctional labor for a period of six months to two years with withholding from earnings to state income from 10 to 25%, but not less than one basic amount monthly;
arrest for a period of one to three months;
restriction of freedom for a period of 6 months to three years;
imprisonment for a term of 6 months to three years.

Part 2 of Article 209 of the Criminal Code of the Republic of Belarus

Part 2 art. 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraudulent actions falling under Part 1 of Art. 209 of the Criminal Code of the Republic of Belarus, which were committed repeatedly. Theft is considered committed repeatedly if it was preceded by any of the crimes provided for in Art. 205 – 212, 294, 323, 327, 333 of the Criminal Code of the Republic of Belarus and the person was not released from criminal liability or the conviction for this crime was not expunged or removed in the manner prescribed by law.

It is necessary to distinguish repeated theft from continued theft, that is, repeated unlawful gratuitous seizure of property for mercenary purposes, consisting of a number of identical criminal actions, if they were committed under circumstances indicating that the person has a common goal and a single intent to steal a certain amount of material assets. In case of continued theft, its size is determined by summing the value of the property for all episodes of theft.

According to Part 2 of Article 209 of the Criminal Code of the Republic of Belarus, fraudulent actions committed by a group of persons in the amount of up to 250 basic units (up to 5,750 rubles) are also qualified, while no minimum amount of fraud has been established. Fraud is recognized as committed by a group of persons if at least two persons jointly participated in the commission of this crime as its perpetrators, i.e. participated directly in deception (abuse of trust) and acquisition of property through fraud.

Thus, it is important to distinguish execution from aiding, abetting, and organizing. If fraudulent actions are committed by an organized group, liability arises under Part 4 of Article 209 of the Criminal Code of the Republic of Belarus.

Criminal fraud, which falls under Part 2 of Art. 209 of the Criminal Code of the Republic of Belarus falls into the category of a less serious crime; the statute of limitations for bringing to justice from the date of commission of the crime is five years.

The sanction of Part 2 of Article 209 of the Criminal Code of the Republic of Belarus as amended by the Law of the Republic of Belarus dated January 5, 2015 No. 241-Z provides for the following alternative main types of punishment:

a fine from thirty to one thousand basic units (from 690 to 23,000 rubles);
correctional labor for a period of six months to two years with withholding from earnings to state income from 10 to 25%, but not less than one basic amount monthly;
arrest for a period of one to three months;
restriction of freedom for a period of 6 months to four years;
imprisonment for a term of 6 months to four years.

Part 3 of Article 209 of the Criminal Code of the Republic of Belarus

Part 3 art. 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraud committed in an amount over 250 to 1000 basic units (over 5,750 rubles to 23,000 rubles).

Criminal fraud under Part 3 of Art. 209 of the Criminal Code of the Republic of Belarus belongs to the category of a serious crime, the statute of limitations for bringing to justice from the date of commission of the crime is ten years.

The sanction of Part 3 of Article 209 of the Criminal Code of the Republic of Belarus as amended by the Law of the Republic of Belarus dated July 22, 2003 No. 227-Z provides for punishment in the form of imprisonment for a term of two to seven years with confiscation of property or without confiscation.

Part 4 of Article 209 of the Criminal Code of the Republic of Belarus

Part 4 of Article 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraud committed in an amount exceeding 1,000 basic units (over 23,000 rubles) or regardless of the amount stolen when committing a crime by an organized group.

Fraud is considered committed by an organized group if at least two persons, having previously united into a managed stable group for joint criminal activity, jointly participated in the commission of this crime as its perpetrators, i.e. participated directly in deception (abuse of trust) and acquisition of property through fraud.

Criminal fraud, qualified under Part 3 of Art. 209 of the Criminal Code of the Republic of Belarus belongs to the category of a serious crime, the statute of limitations for bringing to justice from the date of commission of the crime is ten years.

The sanction of Part 4 of Article 209 of the Criminal Code of the Republic of Belarus as amended by the Law of the Republic of Belarus dated July 22, 2003 No. 227-Z provides for punishment in the form of imprisonment for a term of three to ten years with confiscation of property.

Distinguishing fraud from related crimes: qualification problems

Due to the fact that delusion can only arise from a legally competent person, theft of property by changing information or entering false information in a computer system should be qualified under Article 212 of the Criminal Code of the Republic of Belarus, and theft of property of an incompetent person – under Article 205 of the Criminal Code of the Republic of Belarus (theft).

To distinguish fraud from other crimes, it is necessary to take into account that it is the deception of a person due to deception or abuse of trust that is the actual method of the fraudster to seize and turn over property for his or her benefit or that of third parties. In other words, until the fraudster receives a real opportunity to dispose of the stolen property, the victim or the person to whom he transferred his property does not interfere with the implementation of criminal intent due to delusion, and not because of his carelessness, sluggishness, indecision, physical weakness and etc. Thus, actions in which the perpetrator uses deception to facilitate access to property, and subsequently:

takes it away unnoticed by the victim, it should be considered theft (Article 205 of the Criminal Code of the Republic of Belarus);
criminal intent in the process of theft is discovered by the victim and the culprit escapes with the property, then the actions must be qualified as robbery (Article 206 of the Criminal Code of the Republic of Belarus);
the actions of the culprit are detected, but in order to bring the criminal intent to completion, he uses violence that is dangerous to the life or health of the victim, then in this case robbery occurs (Article 207 of the Criminal Code of the Republic of Belarus).

As a special case, it is necessary to distinguish between deception of consumers (Article 257 of the Criminal Code) from fraud (Article 209 of the Criminal Code of the Republic of Belarus) in which in the field of retail trade a seller or an employee of the seller of an individual entrepreneur or organization takes possession of the property of a consumer - an individual, by means of shortchanging, skimming, and other methods.

Unlike fraud, when misappropriation or embezzlement (Article 2011 of the Criminal Code of the Republic of Belarus), the person has the intent to steal only after the property has already been entrusted to him.

In contrast to mediation in bribery (Article 432 of the Criminal Code of the Republic of Belarus), in fraud the perpetrator accepts material assets from the bribe-giver without intending to transfer them to a subsequent official and appropriates them for himself, and if at the same time he also incited to give a bribe, the actions must be qualified according to collectively as fraud and incitement to give a bribe.

Criminal article

When the value of intentionally stolen property exceeds the permissible figure and the crime goes beyond the scope of administrative responsibility, then the Criminal Code of the Republic of Belarus comes into force. Fraud is a criminal offence. Persons who have reached the age of sixteen on the day the crime was committed begin to be prosecuted under this article.

The article consists of 4 parts, and responsibility and subsequent punishment are divided accordingly, depending on the evidence of certain qualifying characteristics. If in a criminal act the signs provided for in different parts of one article were identified, the offense is assessed as more serious. Since Art. 209 of the Criminal Code of the Republic of Belarus is associated with causing losses, the type and amount of sanctions depend on the amount of damage caused. During the trial and subsequent sentencing, existing mitigating and aggravating circumstances are taken into account.

Repeated act

Criminal liability for fraud under Part 2 of Article 209 of the Criminal Code occurs when theft of property is committed for the second time by misleading the victim. An offense is considered recurrent if there has been a similar offense that falls under Articles 205-212, 323, 333, 294, 327 of the Criminal Code, and at the time of prosecution for the present crime, the person’s criminal record was not expunged in the manner prescribed by law or the citizen was not exempted from criminal liability.

It is important to understand the difference between “continuing” and “repeated” misappropriation. The first term consists of a number of similar criminal acts committed under circumstances that confirm that a person has a common goal and a single intent to steal a certain amount of material assets. In such an act, the amount of the stolen goods is reduced by summing up the value of the property for all episodes.

The difference between fraud and other types of crimes

To distinguish between fraud and other elements of a crime, one should take into account the fact that the criminal uses deception or abuse of the trust of the victim to take possession of property or rights to it for his own benefit or for the benefit of third parties. This means that until the fraudster begins to fully dispose of the stolen property, the victim does not interfere with the implementation of the criminal intent due to deception or misconception on the part of the perpetrator. Accusations of inattention, physical weakness, sluggishness or indecisiveness of the victim are inappropriate.

It is worth noting separately that misconceptions arise from a legally competent person and theft of property, changes and provision of false data in a computer system are qualified under Article 212 of the Criminal Code of the Republic of Belarus, and theft from a legally incompetent person is already under Article 205 of the Criminal Code of the Republic of Belarus. Let's take a closer look at qualifying cases when the perpetrator uses deception to facilitate access to property:

theft under Art. 205 of the Criminal Code of the Republic of Belarus is considered to be the inconspicuous appropriation of someone else’s property;
During the process of theft, the criminal intent of the perpetrator becomes clear, but it disappears along with someone else's property. This is qualified under Article 206 of the Criminal Code of the Republic of Belarus;
the criminal’s actions are fully disclosed, but in order to complete his actions, he uses physical force or violence, which is dangerous to the life and health of the victim. Art. applies here. 207 of the Criminal Code of the Republic of Belarus, because actions are regarded as robbery.

There is another type of fraud that should be separated from the classic one, qualified under Article 209 of the Criminal Code of the Republic of Belarus. This is consumer deception (Article 257 of the Criminal Code). This means that in the retail trade, a seller or hired worker from an individual entrepreneur, organization, enterprise, etc., takes possession of the buyer/customer’s property by any means (counting, weighting, etc.).

There is another article of the Criminal Code of the Republic of Belarus - 211, it implies the appropriation or embezzlement of property only after this property has been transferred for use. This means that the criminal has a plan to take possession of the property when it is entrusted to him.

Article 432 of the Criminal Code of the Republic of Belarus is an offense in the form of mediation in bribery. The difference from fraud is that the perpetrator accepts any material assets from the person attempting to give a bribe, but does not intend to transfer them further (to the official). He appropriates them for himself. Perhaps he is persuading or inciting to give a bribe. In this case, the actions of the perpetrator are qualified as a whole: fraud plus incitement to give a bribe.

Criminal association

Fraud (Article 209 of the Criminal Code of the Republic of Belarus) is qualified under Part 2 if the theft was committed by a group of persons and the damage amounted to 250 basic units or less (no minimum amount is established). A group crime is recognized as such if at least 2 people jointly committed a crime (participated in deception), that is, they became its perpetrators, as a result of which they took possession of property without the right. In this case, it should be understood that execution is different from aiding and abetting. If an organized group of persons was operating, then such fraudulent actions are already qualified under part four.

The second part of Article 209 belongs to the category of a less serious crime, for which the statute of limitations is similar to the first part and is five years from the date of commission of the criminal act.

After the trial, depending on the severity of the crime, the following sentence for fraud may be imposed:

arrest (1-3 months);
fine (30-1000 b.v.);
restriction of freedom (6 months–4 years);
correctional labor (6 months–2 years, mandatory deduction from wages from 10 to 25% to state income, but not less than 1 b.v. every month);
imprisonment (6 months - 4 years).

Brief qualification of fraud under criminal law

Fraud is considered completed from the moment when, as a result of deception or abuse of trust, someone else’s property came into the illegal possession of the perpetrator or other persons, and they received a real opportunity to use it or dispose of it at their own discretion.

Part 1 of Article 209 of the Criminal Code of the Republic of Belarus

Part 1 Art. 209 of the Criminal Code of the Republic of Belarus provides for criminal liability

for fraud in the amount of:

from 10 to 250 basic units in relation to a legal entity;
from 2 to 250 basic units in relation to an individual;
regardless of the amount - in case of theft by fraud of an order, medal, badge for the honorary title of the Republic of Belarus or the USSR.

Criminal fraud under Part 1 of Art. 209 of the Criminal Code of the Republic of Belarus, belongs to the category of a less serious crime, the statute of limitations for bringing to justice from the date of commission of the crime is five years.

community service for a period of sixty to two hundred and forty hours;
fine from thirty to one thousand basic units;
correctional labor for a period of six months to two years with withholding from earnings to state income from 10 to 25%, but not less than one basic amount monthly;
arrest for a period of one to three months;
restriction of freedom for a period of 6 months to three years;
imprisonment for a term of 6 months to three years.

Part 2 of Article 209 of the Criminal Code of the Republic of Belarus

Part 2 Art. 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraudulent actions falling under Part 1 of Art. 209 of the Criminal Code of the Republic of Belarus, which were committed repeatedly. Theft is considered committed repeatedly if it was preceded by any of the crimes provided for in Art. 205 – 212, 294, 323, 327, 333 of the Criminal Code of the Republic of Belarus, and the person was not released from criminal liability, or the conviction for this crime was not expunged or removed in the manner prescribed by law.

According to Part 2 of Article 209 of the Criminal Code of the Republic of Belarus, fraudulent actions committed by a group of persons in the amount of up to 250 basic units are also qualified, while no minimum amount of fraud has been established. Fraud is recognized as committed by a group of persons if at least two persons jointly participated in the commission of this crime as its perpetrators, that is, they participated directly in deception (breach of trust) and the seizure of property by fraud.

Criminal fraud, which falls under Part 2 of Art. 209 of the Criminal Code of the Republic of Belarus, belongs to the category of a less serious crime, the statute of limitations for bringing to justice from the date of commission of the crime is 5 years.

fine from thirty to one thousand basic units;
correctional labor for a period of six months to two years with withholding from earnings to state income from 10 to 25%, but not less than one basic amount monthly;
arrest for a period of one to three months;
restriction of freedom for a period of 6 months to four years;
imprisonment for a term of 6 months to four years.

Part 3 of Article 209 of the Criminal Code of the Republic of Belarus

Part 3 art. 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraud committed in an amount exceeding 250 to 1000 basic units.

Criminal fraud under Part 3 of Art. 209 of the Criminal Code of the Republic of Belarus, belongs to the category of a serious crime, the statute of limitations for bringing to justice from the date of commission of the crime is 10 years.

Part 4 of Article 209 of the Criminal Code of the Republic of Belarus

Part 4 of Article 209 of the Criminal Code of the Republic of Belarus provides for criminal liability for fraud committed in an amount exceeding 1,000 basic units (over 23,000 rubles), or regardless of the amount stolen when committing a crime by an organized group.

Fraud is considered committed by an organized group if at least two persons, having previously united into a controlled stable group for joint criminal activity, jointly participated in the commission of this crime as its perpetrators, i.e., directly participated in deception (abuse of trust) and theft property through fraud.

I. I. Rutkovsky, first deputy head of the Smorgon District Department of Internal Affairs, head of the criminal police.

Large material damage

Under Article 209, Part 3 of the Criminal Code of the Republic of Belarus, those accused of fraud are tried, the amount of damage from which varies from 250 to 1000 bp. V. A crime under this article is already considered serious, and the statute of limitations, compared to previous less serious criminal acts, has been increased to 10 years from the date of commission.

If the first two parts could be limited to a fine, public or correctional labor, then in this case the punishment is provided only in the form of imprisonment for a period of 2 to 7 years with the mandatory confiscation of registered property or, by a court decision, without confiscation.

Changes in criminal liability for economic crimes

In 2021, there were changes in criminal liability for economic crimes. Now confiscation is applied in a new way. The Criminal Code has been supplemented with a provision on special confiscation instead of general confiscation. This means that now, when a crime is committed, the following are subject to confiscation:

property obtained by criminal means;
income from the use of this property;
objects of the crime, unless they must be returned to the victim;
instruments and means of committing a crime.

In addition, if previously confiscation was applied as an additional punishment, now a fine is issued in the amount of 300 to 5 thousand basic units (from 8,100 to 135 thousand rubles).

Partial mitigation of liability

Theft by means of computer equipment is now punishable by imprisonment for a term of 5 to 12 years. Whereas previously this period ranged from 6 to 15 years. Also, the Criminal Code added a provision that imprisonment is not imposed for the first time on a convicted person if he has committed a crime that does not pose a great public danger or a less serious crime in the economic sphere. The exceptions are smuggling, illegal export or transfer for export purposes of objects of export control, as well as legalization (laundering) of funds obtained by criminal means.

Damage increased

The amount of large and especially large damage (income), which entails criminal liability for economic crimes, has been increased. Thus, the large size was increased from 250 to 1 thousand basic units (from 6,750 to 27 thousand rubles), and the especially large size - from 1 thousand to 2 thousand basic units (from 27 thousand to 54 thousand rubles). At the same time, some articles of the Criminal Code indicate other sizes. For example, evasion of customs duties entails criminal liability if the amount of such payments that were not paid exceeds 3 thousand basic units (81 thousand rubles). Previously, this amount was 2 thousand basic units (54 thousand rubles). When assigning criminal liability for evasion of taxes (fees), large-scale damage is recognized in the amount of at least 2 thousand basic units (previously - 1 thousand), especially large-scale - at least 3,500 basic units (previously - 2,500).

Change in crime

The following six offenses have changed since 2019:

Entrepreneurial activity without special permission (license). Now only business activities carried out without special permission (license) and associated with the receipt of income on a large and especially large scale are fraught with criminal liability. In addition, the upper limit of imprisonment has been reduced from three to two years.
Violation of the rules on transactions with precious metals or stones. Nowadays, violation of such rules on a large scale entails criminal liability. Previously, the size of the transaction did not affect prosecution. In addition, the punishment for committing this crime by an organized group and on an especially large scale has been reduced. Now this is punishable by a fine, or restriction of freedom for up to 5 years, or imprisonment for a term of 3 to 8 years. Previously, the Criminal Code provided only for imprisonment for a term of 5 to 12 years with or without confiscation of property.
Illegal use or disclosure of information from the register of securities holders or information about the performance of the issuer of securities. Criminal liability is imposed only if the crime was committed out of selfish interest, and the perpetrator caused damage on an especially large scale. At the same time, the upper limit of punishment has been reduced: for restriction of freedom - from 4 to 3 years, imprisonment - from 5 to 3 years.
Illegal receipt of a loan or subsidy. Previously, extortion of a loan or subsidy was a criminal offense. It is now a criminal offense to obtain a loan illegally. That is, before this, criminal liability arose for the very fact of submitting knowingly false documents and information to obtain a loan. And now, for criminal liability to arise, you need to get the loan itself, which will lead to damage on a large scale.
Commercial bribery. Now, commercial bribery, which entails liability under the Criminal Code, is recognized as the receipt of material assets or the acquisition of benefits of a property nature not only by an employee of an individual entrepreneur or company, but also by a person who works under a civil contract.
Disclosure of commercial or banking secrets. Disclosure of such a secret by a person to whom it is known in connection with his professional or official activities entails criminal liability only if a crime is committed out of selfish interest.

Also, as of 2021, the following five articles have been excluded from the Criminal Code:

violation of the procedure for opening accounts outside Belarus;
obstruction of legitimate business activities;
false entrepreneurship;
violation of antimonopoly legislation;
discrediting the business reputation of a competitor.

As you can see, the punishment for most economic crimes has been mitigated, and a number of crimes have been decriminalized.

Serious crime

Part 4 of Article 209 of the Criminal Code of the Republic of Belarus is appropriate if fraud is proven, the damage from which exceeded 1000 basic units. Under the fourth part, which is classified as a serious crime, an organized group is also tried, regardless of what material losses the act entailed. The statute of limitations for this criminal case is 10 years.

Collective fraud can be recognized as such if two citizens previously agreed to join forces to carry out criminal activities, jointly, equally took part in the commission of a crime, that is, they were the perpetrators of the deception that occurred and, abusing the trust of the victim, committed theft by fraud.

Punishment for a serious crime with huge material losses according to the Law of the Republic of Belarus: imprisonment, taking into account all the circumstances - a minimum of 3 years, a maximum of 10 years with confiscation of property.

Analysis of changes introduced by the Law of the Republic of Belarus of May 26, 2021 No. 112-Z “On Amendments to Codes on Criminal Liability Issues.”

The article was prepared using

legal acts according to the status

as of June 17, 2021

Lawyer Maslov Evgeniy Dmitrievich

1) The new law introduces changes to the concept of multiple crimes, which is important when assigning punishment if one person commits several crimes. Thus, the previous commission of crimes provided for by the same article, but in different parts (for example, Part 1 of Article 205 of the Criminal Code and Part 2 of Article 205 of the Criminal Code), as well as the commission of a completed and unfinished crime (Part 1 of Art. 14 part 2 of article 205 and part 2 of article 205 of the Criminal Code) was recognized as a repetition of crimes and the punishment in this case was imposed according to the rules provided for in article 71 of the Criminal Code.

Taking into account the amendments made to Articles 42 and 72 of the Criminal Code, with the exception of Articles 41 and 71 of the Criminal Code, the above cases should be recognized as a set of crimes and punishment should be imposed according to the rules of Article 72 of the Criminal Code.

It should be noted that previously, when applying the provisions of Article 71 of the Criminal Code, the final punishment could only be imposed by absorbing a less severe punishment with a more severe one. For example, if a punishment of 3 years of imprisonment was imposed under Part 2 of Article 205 of the Criminal Code, and 4 years under Part 3 of Article 205 of the Criminal Code, the final punishment could be imposed only 4 years. At the same time, Article 72 of the Criminal Code allows for the imposition of final punishment both by absorbing a less severe punishment with a more severe one, and by partially or completely adding up punishments. That is, at the moment, if a person is convicted under Part 2 of Article 205 to a punishment of 3 years in prison, under Part 3 of Article 205 of the Criminal Code - 4 years in prison, the final punishment can be imposed up to 7 years in prison freedom.

Thus, this innovation, on the one hand, simplifies the mechanism for assigning punishment, and on the other hand, it increases the potential liability when convicted of committing several crimes.

Taking into account the fact that the courts are given greater opportunities to impose punishment in such cases, the role of the defense attorney in criminal proceedings increases, who can present convincing arguments and justify the need to impose the final punishment precisely by absorbing the less severe into the more severe, and not by adding up punishments

The lawyers of the law office “Maslov, Gashinsky and Partners” have the necessary practical experience and knowledge in considering criminal cases on charges of several crimes, and will provide legal assistance to the client aimed at realizing the client’s interests.

2) The list of acts entailing criminal liability according to the requirements established in Article 33 of the Criminal Code has also undergone changes.

Thus, the new law includes Article 155 of the Criminal Code “Infliction of grievous or less serious bodily injury through negligence”, Part 1 of Article 170 of the Criminal Code “Force to perform actions of a sexual nature”, Article 185 of the Criminal Code “Coercion”, Part 1 of Article 216 of the Criminal Code “Causing property damage without signs of theft.”

Of particular interest is the inclusion by the legislator of such articles as Art. 155 and Part 1 of Article 216 of the Criminal Code, since in practice there are often cases when a person is charged under Article 147 or 149 of the Criminal Code (intentional infliction of grievous or less grievous bodily harm), and when considering the case the court comes to the conclusion of a careless form of guilt and qualifies actions under Article 155 of the Criminal Code. At the same time, the courts still issue a guilty verdict if there is a statement in the case from the victim regarding the fact of causing him bodily harm.

Taking into account the changes made, if the victim does not have demands to bring the accused to justice under Article 155 of the Criminal Code, which must be expressed in the appropriate form, or the victim himself refuses the previously filed application, then the accused is not subject to criminal liability.

Since the law in this part mitigates liability and has a retroactive effect, this change also affects convictions that have entered into force under Article 155 of the Criminal Code, which can be canceled with the termination of the proceedings.

Similar are the frequent cases of reclassification of various types of theft under Article 216 of the Criminal Code, and sentences in such cases can also be overturned in the absence of claims from the injured party.

3) The changes introduced increase the maximum term of the imposed punishment in the form of community service - from 240 to 360 hours. Since liability increases, the law in this part applies only to crimes committed after it came into force and does not have retroactive effect.

4) Article 50 of the Criminal Code has been amended, establishing the concept and features of imposing such punishment as a fine. It is possible to provide installment plans for up to 5 years, or defer payment for up to 1 year. This possibility was previously enshrined in Article 29 of the Penal Code, but provided for the possibility of granting an installment plan for a fine for a period of only up to one year.

It is also possible for the court, upon the proposal of the body entrusted with the execution of the sentence, to replace the fine with arrest at the rate of one day of arrest for ten basic units, but not more than 3 months, or with restriction of freedom at the rate of one month of restriction of freedom for 5 basic units, but no more than 5 years.

It follows from this that control over the execution of punishment in the form of a fine will be carried out more strictly, but the possibility of applying installment plans and deferment of the fine to the convicted person instead of replacing the punishment with arrest will expand.

5) The new law changes the rules for counting periods of detention and house arrest. Thus, previously, one day of detention (or period of detention) was counted, in accordance with Article 75 of the Criminal Code, towards the term of serving the sentence at the rate of one day of detention to one day of imprisonment. Taking into account the changes made, one day of detention corresponds to two days of imprisonment for a person who committed a crime under the age of 18 years or in the case of sentencing in a correctional colony in a settlement. If a sentence of imprisonment is imposed and served in a correctional colony under conditions of general or enhanced security (that is, in the case of a sentence of imprisonment for the first time), then in this case one and a half days of imprisonment corresponds to one day of detention.

6) The legislator also reduced the term of imprisonment provided for by the sanction of Article 147 Part 1 (intentional infliction of grievous bodily harm). The commission of this crime was previously punishable by restriction of liberty for a term of three to five years or imprisonment for a term of four to eight years, and the new version provides for a punishment of imprisonment of three to eight years.

Taking into account the fact that the law has mitigated the responsibility for committing this crime, sentences in relation to persons who have been sentenced to imprisonment under this article may be revised in terms of reducing the punishment, based on applications filed by them or their defenders indicating the grounds for the reduction term of punishment.

7) Also, a note has been added to Article 168 of the Criminal Code (sexual intercourse and other actions of a sexual nature with a person under sixteen years of age), according to which a person who has committed a crime under Part 1 of this article is exempt from criminal liability if it is established that this the person and the crime ceased to be dangerous due to the marriage of the victim. Sentences previously passed under this article may also be revised if the above conditions occur.

The new law also softens the liability established for committing a number of thefts involving large-scale damage. Thus, the changes affected the crimes provided for in Part 3 205, Part 3 206, Part 3 208, Part 3 209, Part 3 211, Part 3 212 of the Criminal Code. Previously, the law did not provide for an alternative punishment to imprisonment for committing these crimes. A person brought to criminal liability under these articles who has not fully compensated for the damage caused or who for other reasons was unable to apply other measures of criminal liability (Articles 77, 78 of the Criminal Code) is guaranteed to be sentenced to imprisonment. Taking into account the changes, such a person may qualify for a different punishment. At the same time, taking into account the introduction of a new type of punishment and mitigation of sanctions, sentences passed earlier and the punishment for which the convicts have not served may be revised.

9) Article 212 of the Criminal Code has also been amended. In particular, such a qualifying feature as theft associated with unauthorized access to computer information is excluded from Part 2 of this article. The theft of funds by a person using someone else's bank cards, or using special applications, has always been accompanied by the imputation of such a sign as actions associated with unauthorized access to computer information. By completely excluding this feature from the criminal code, the legislator mitigates responsibility for such actions, which, taking into account the changes, will be qualified not under Part 2 of Article 212 of the Criminal Code, but under Part 1. These changes also affect previously passed sentences, the punishments for which the convicted persons are not departed. Taking into account the fact that Part 1 of Part 212 provides for both milder types of punishment and shorter terms, the convicted person, upon filing the appropriate application, has the right to apply for a mitigation of the sentence or exemption from further serving it.

10) The measure of liability provided for in Part 1 of Article 214 of the Criminal Code has also been reduced, the commission of which was previously punishable by restriction of freedom for up to 5 years and imprisonment for the same term, and currently the maximum term of both restriction of freedom and and deprivation is 3 years. Accordingly, persons sentenced under this article to a sentence exceeding 3 years may apply for a review of the sentence and a mitigation of the sentence.

11) The note to Article 228 of the Criminal Code (smuggling) has been changed. The previous edition stated that a person who voluntarily surrendered cash and monetary instruments is exempt from criminal liability. Their discovery during the application of forms of customs control, their seizure during the detention of a person, as well as during investigative actions for their discovery and seizure cannot be recognized as voluntary surrender of cash or monetary instruments specified in this article. The new law also adds that the discovery of funds during an oral interview as a measure to ensure customs control cannot be considered voluntary surrender.

The concept of an oral questioning, as a measure ensuring the conduct of customs control, is enshrined in Article 339. Customs officials have the right to conduct an oral questioning of individuals, their representatives, as well as persons who are representatives of organizations, in order to obtain information relevant for carrying out customs control , without registration of the results of the survey of the Customs Code of the Eurasian Economic Union, by virtue of which customs officials have the right to conduct an oral survey of individuals, their representatives, as well as persons who are representatives of organizations, in order to obtain information relevant for customs control, without registration survey results.

Previously, in the case of a voluntary report during an oral interview or conversation with a customs officer about the movement of funds across the customs border of the Eurasian Economic Union in an amount exceeding the permissible amount, during further verification activities, a decision was made to refuse to initiate a criminal case and the administrative process began. Taking into account the changes made, a similar case may lead to the initiation of a criminal case under Article 228 of the Criminal Code.

12) Article 243 of the Criminal Code has also undergone changes. The gradation of the amount of damage has been changed: liability under Part 1 of Article 243 of the Criminal Code is provided for tax evasion on a significant scale, under Part 2 – on a large scale, under the newly added Part 3 – on an especially large scale. Moreover, with the new law, a significant size corresponds to the large size established in the previous edition (2,000 b.v.), and large - to an especially large size (3,500 b.v.). A particularly large amount in the new edition legally occurs when the amount of damage exceeds 35,000 b.v.

At the same time, the sanctions of Part 1 and Part 2 of the article were changed. According to Part 1, the maximum amount of restriction of freedom was reduced from 3 years to 1 year.

Taking this into account, persons previously convicted under Part 1 of Article 243 of the Criminal Code to a punishment exceeding 1 year of restriction of freedom have the right to apply for a review of the sentence and mitigation/exemption from serving the sentence.

13) The new law also introduced a number of new crimes, including Article 243-2 of the Criminal Code “Tax Fraud”, which means evasion of the duties of a tax agent to transfer taxes, fees subject to calculation, withholding from the payer and transferring to the budget, causing damage on a large scale. The commission of this crime does not mean tax evasion, the responsibility for which is provided for in Article 243 of the Criminal Code, but rather actions aimed at unjustified refund of taxes and fees (which should not be returned).

14) A new article 243-3 of the Criminal Code “Evasion from paying insurance premiums” has also been added. This norm implies the responsibility of a person for deliberate non-accrual and non-payment of mandatory insurance contributions, contributions for professional pension insurance to the budget of the state extra-budgetary fund for social protection of the population of the Republic of Belarus. The minimum amount of unpaid insurance premiums for which criminal liability is provided is set at 2,500 basic units.

15) One of the new norms was also the introduction of criminal liability for driving a vehicle by a person who does not have the right to drive. There is a similar rule in administrative legislation, but criminal liability in this case will occur if such an act is committed repeatedly. By repetition, the legislator understands the commission of an unlawful act within one year after the imposition of an administrative penalty under Part 2 of Article 18.14 of the Administrative Code.

16) The new law softens the sanction of Part 1 of Article 328-1 of the Criminal Code by adding to it such punishment as restriction of freedom for up to 4 years. At the same time, previously, only imprisonment could be imposed for committing this crime, and since the crime was classified as serious and directed against the life and health of the population, other measures of criminal liability could not be applied to the accused either.

17) A provision has been introduced into the Criminal Code on liability for repeated violations of the procedure for organizing or holding mass events. The disposition of the article actually duplicates Article 24.23 of the Administrative Code, which establishes liability for unauthorized events. In this case, criminal liability will take place if the person was subjected to administrative penalties twice within one year for committing administrative offenses under Article 24.23 of the Code of Administrative Offences, and within a year after the imposition of the second administrative penalty for the act, he again violated the procedure for organizing or holding mass events.

18) Liability has been increased under Articles 363, 364, 366 of the Criminal Code and for committing qualified acts, liability is now established up to 7 years in prison. Thus, these crimes were transferred to the category of serious ones.

Code of Criminal Procedure

1) Article 30-1 of the Code of Criminal Procedure was added, regulating the procedure for reconciliation between the accused and the victim. The principle of personal participation and the principle of voluntariness in reconciling the accused with the victim are legislatively established. It is separately noted that reconciliation with a minor accused or victim is carried out with the participation of their legal representatives. The possibility of reconciliation in criminal proceedings has been added with the participation of a mediator, who is chosen by the victim and the accused mutually and on their own initiative.

2) The Code of Criminal Procedure has been added with a new article - 204-1, which regulates the procedure for inspecting computer information. In fact, the legislator has introduced a new type of procedural action, since the inspection of computer information that is accessed through user authentication or that contains information about a person’s private life (for example, email) has a number of significant features. In order to conduct an inspection of such computer information, an obligation has been established to obtain the consent of its owner or the presence of a prosecutor's sanction.

3) Article 224-1 of the Code of Criminal Procedure is supplemented by the possibility, during the preliminary investigation, to carry out interrogation of the victim, witness, confrontation or presentation for identification of persons and (or) objects with the participation of the victim or witness remotely using video conferencing systems if necessary to ensure the most rapid, comprehensive and objective examination of the circumstances of the criminal case. The question of the possibility of carrying out these procedural actions using such means is decided by the investigator.

4) The changes made to the Code of Criminal Procedure provide the prosecutor with additional powers when he receives a case to be sent to court. Thus, the new law has amended Article 265 of the Code of Criminal Procedure, according to which the prosecutor also has the right to cancel the seizure of property, temporary restriction of the right to leave the Republic of Belarus, as well as allow close relatives and family members to visit a person in custody or at home. arrest. In this regard, the prosecutor, at the stage of transferring the case to him for sending to court, may receive a petition from the defense attorney to lift the seizure of the property, and from relatives to allow a visit.

5) Article 293 of the Code of Criminal Procedure has been expanded to include part 7-1, by virtue of which the public prosecutor, refusing the charge in whole or in part, is obliged to present to the court the motives and grounds for such a decision, provided for in Art. 357 (absence of corpus delicti, participation of the accused in the commission of the crime has not been proven, absence of a socially dangerous act). At the same time, the law does not establish the consequences of an unmotivated refusal by the state prosecutor to withdraw charges.

6) The wording of Article 373 of the Code of Criminal Procedure, which establishes the procedure for notification of filed complaints and protests, has been changed. So, now, in the event of filing an appeal and protest on grounds that may lead to a worsening of the situation of the accused, copies of them are handed over not only to the accused, but must also be handed over to the defense lawyer.

7) Taking into account the provisions of the new law, additional appeals and protests and written objections to them can be submitted to the appellate authority no later than five days before the start of the consideration of the criminal case, instead of three, as was previously the case.

PEC

1) Article 86 of the Penal Code now allows telephone calls to persons serving a sentence of imprisonment with relatives, including using video communication. The new edition also establishes the right to carry out telephone conversations with persons who are not close relatives of the convicted person, but only with the permission of the administration of the correctional institution.

Qualification problem

The idea of committing fraud by deception or breach of trust can only arise in the mind of a competent person who can account for his actions. Therefore, theft of a large amount by changing data or entering false information in a computer system is qualified under Article 212 of the Criminal Code of the Republic of Belarus, and taking over the property of an incapacitated citizen is qualified under Art. 205 of the Criminal Code of the Republic of Belarus (theft).

Here there is a fine line between ordinary theft and fraud: it is misleading a person by deceiving him and using trust with malicious intent that is the main way for a fraudster to take possession of someone else’s property. In simple words, it can be explained as follows: the criminal gets the practical opportunity to use the stolen property at his own discretion, since the victim gave such a right due to an existing misconception, and not due to sluggishness or inattention.

Classification and signs of fraud

In order to give an accurate criminal legal assessment of fraud, it is worth understanding what the subjects and objects of the offense are under Article 209 of the Criminal Code of the Republic of Belarus.

The subject of fraud in our country is a sane person who has reached the age of 16. If a crime is committed using an official position, then in this case only the official can become the subject and nothing else. The subject of fraud is not only property, but also any rights to it. This is a very important point, because... The seizure of the right to property by the perpetrator also implies ownership of the property itself.

The subjective side of the matter presupposes the presence of direct intent. This means that the perpetrator gives an account of his actions and understands that he is misleading the victim. Another important point is the deliberate use of the victim’s trust to obtain someone else’s property and the desire to appropriate it for oneself. The main feature of the subject, as in the case of any theft, is a selfish and mercantile goal.

Deception as the main sign of fraud

Deception is the main way to take possession of someone else's property. If a crime is committed, the victim himself transfers the property or rights to it to the attacker, quite sincerely believing that the latter has the legal right to do so. The main factor in this case is deception. This method can be expressed in the fact that the perpetrator gives false information to the victim or deliberately hides true information and facts. Do not forget that the presentation of this information was a prerequisite. Deception can be directed at past, future, or present facts.

Deception usually concerns the real intentions of the offender. For example, he may take an item that he knows he is not going to give back. Therefore, the deception refers to the quality, price and quantity of the items. A criminal can hide information about himself, his profession, position, place of residence, social status, etc. Deception may also imply other facts and circumstances that do not serve as a direct reason for the transfer of property, but push the victim to do so.

There are several forms of deception. It can be not only oral, but also written, with falsification of the subject of the transaction or payment during settlement, using forged documents, as well as the use of various frauds in gambling. If false documents are used, preparation for theft is implied. Responsibility comes in conjunction with preparation for fraud and forgery of documents, if it was not possible to use false papers. If the criminal manages to commit theft, then the offense is classified as a combination of forgery and fraud.

In most cases, documents are falsified to illegally receive benefits, pensions and other periodic cash payments. Deception consists of providing deliberately false information. This includes:

age;
income;
seniority;
health status, etc.

It is worth noting that fraud will be any receipt by means of providing a fictitious power of attorney of funds for another person who has every right to do so. If the money is used to enrich the culprit under the guise of fictitious contracts, agreements to pay funds for work that was not performed, then this can also be regarded as fraud. There is one caveat: in order to qualify this act as fraudulent, it must be established that the culprit knowingly knew that he would not fulfill his obligations.

Persons who misappropriated property by accident or mistake are exempt from criminal liability, and not when they knew in advance about all the circumstances, but they were hidden.

Breach of trust as a sign of fraud

In addition to deception, abuse of trust can also be a sign. There are many different forms of abuse of trust. For example, the culprit can, having secured the trust of the parties, fulfill any obligations, and after receiving the money, stop any actions. In this case, there is a deliberate misrepresentation regarding the actual intentions. Moreover, the criminal knows in advance that he will not comply with them. In fact, deception and abuse are closely related. The attacker often takes advantage of a good relationship with the property owner or legal owner, resorting to deception in order to gain trust. However, abuse of trust quite often acts as an independent fraudulent method.

In both cases, the essence of these signs is that the offender misleads the victim in various ways and does everything possible to prove the urgent need to transfer property or rights to it. That is why the transfer of property, as a rule, occurs voluntarily and according to the conscious expression of the will of the injured party.

Fraud classification

Let us list the main forms of division in the article fraud of the Criminal Code of the Republic of Belarus, depending on their danger to society:

taking property or acquiring rights to property through deception or abuse of trust. Punishable by community service, or a fine, or correctional labor for a term of up to two years, or arrest, or restriction of freedom for a term of up to three years, or imprisonment for the same term.
fraud committed repeatedly or by a group of persons. Punishable by a fine, or correctional labor for a term of up to two years, or arrest, or restriction of freedom for a term of up to four years, or imprisonment for the same term;
fraud committed on a large scale. Punishable by imprisonment for a term of two to seven years with or without a fine;
fraud committed by an organized group or on a particularly large scale. Punishable by imprisonment for a term of three to ten years with a fine.

Bringing the fraudster to criminal liability

When you realize that someone has deceived you, the first thing you need to do is calmly assess the situation. On your own or with the help of a legally savvy person, you need to analyze everything, find and save possible documents and items that can later be presented as evidence that you have become a victim of a fraudster. It makes sense to try to find other victims of a similar situation. Consider the feasibility of returning property within the framework of civil proceedings.

A statement regarding the fact of fraud must be written to the police, where investigative actions will begin. The appeal can be written by both the victim and anyone who has witnessed the commission of acts of malicious intent.

The application form looks like this:

The header indicates the name of the body, position, full name of the official to whom the application is being submitted.
Victim, where he lives, contact number.
Details of the scam.
Signature confirming awareness of the application of criminal liability for false denunciation.
List of written evidence.
Applicant's signature, date of submission.

Recommendations

In order to quickly begin an investigation into a case of fraud (Article 209 of the Criminal Code of the Republic of Belarus), it is necessary to indicate the maximum details in the appeal:

place of residence or work;
passport data (if the fraudster provided a copy of the passport pages);
a detailed description of the person, prominent signs, if there is no other information about him;
the circumstances of the deception in chronological order;
the essence of the scam, which proves malicious intent;
legal assessment of the criminal’s behavior (speculations of which you accuse him);
hypothetical amount of damage caused.

Important! It is recommended to omit insults, promises of revenge, and obscene language in the text. It is recommended to end with a petition to open a criminal case or begin proceedings on the fact of fraud (Article 209 of the Criminal Code of the Republic of Belarus). A correctly completed application is the first step towards detecting an attacker and proving his not at all good intentions.

It is not uncommon for a person to refuse to initiate a criminal case. A common wording in this case, for example: “The person in respect of whom the inspection was carried out explained that there was indeed a fact of taking money from a citizen (victim), but he did not have the opportunity to return it on time, due to the current difficult financial situation, with In this case, he does not refuse the debt and is ready to repay it as far as possible; accordingly, in this case there is no element of fraud, the relationship must be clarified at the level of the Civil Code.” Such a response can be appealed to the prosecutor’s office, but it is necessary to concentrate on the audit materials and search for new evidence of the opponent’s fraudulent actions.