Article 208 of the Criminal Code of the Russian Federation with Commentary 2021: latest changes and amendments, judicial practice

ST 208 of the Criminal Code of the Russian Federation.

1. The creation of an armed formation (association, detachment, squad or other group) not provided for by federal law, as well as the leadership of such a formation or its financing -

shall be punishable by imprisonment for a term of ten to twenty years with restriction of freedom for a term of one to two years.

2. Participation in an armed formation not provided for by federal law, as well as participation on the territory of a foreign state in an armed formation not provided for by the legislation of that state, for purposes contrary to the interests of the Russian Federation, -

shall be punishable by imprisonment for a term of eight to fifteen years with restriction of freedom for a term of one to two years.

Note. A person who has committed a crime under this article for the first time, who voluntarily ceased participation in an illegal armed group and surrendered weapons, is exempt from criminal liability unless his actions contain another crime.

Commentary to Art. 208 of the Criminal Code

1. From the point of view of the objective side, the article provides for two elements of crime. The corpus delicti contained in Part 1 is characterized by alternatively provided actions: a) the creation of an armed formation not provided for by federal law; b) leadership of such a formation; c) its financing. The corpus delicti contained in Part 2 is characterized by participation in an armed formation not provided for by federal law, or participation on the territory of a foreign state in an armed formation not provided for by the legislation of that state, for purposes contrary to the interests of the Russian Federation (Russian criminal law is applicable on the basis Part 1 or 3 of Article 12 of the Criminal Code). The content of the listed actions is generally similar to the characteristics of the corresponding actions provided for in Art. 205.1, 209 CC.

2. An armed formation not provided for by federal law can be created in the form of an association, detachment, squad or other group (for example, a training center, camp, base, etc.), and its constitutive features are, firstly, illegality (i.e. not provided for by federal law) and, secondly, armament (presuming the presence of at least one participant in the formation of weapons of any type and origin suitable for the intended use, as well as various explosive devices).

3. The note to the article (applying only to criminal actions provided for in Part 2 of the article) provides the basis for exemption from criminal liability for this crime in connection with active repentance.

4. The commission of criminal acts by an illegal armed group that constitute independent crimes should be qualified in conjunction with Art. 208 of the Criminal Code.

5. From organizing a terrorist community (Article 205.4 of the Criminal Code), banditry (Article 209 of the Criminal Code), organizing a criminal community (criminal organization) (Article 210 of the Criminal Code of the Russian Federation), armed rebellion (Article 279 of the Criminal Code), organizing an extremist community (Article 282.1 of the Criminal Code) the crime under consideration is distinguished by the absence of constitutive goals characterizing these crimes.

Article 208. Organization of an illegal armed group or participation in it

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Article 208. Organization of an illegal armed group or participation in it

1. The creation of an armed formation (association, detachment, squad or other group), not provided for by federal law, as well as the leadership of such a formation or its financing -
is punishable by imprisonment for a term of ten to twenty years, with restriction of freedom for a term of one to two years. years.

shall be punishable by imprisonment for a term of eight to fifteen years with restriction of freedom for a term of one to two years.

(Part two as amended by Federal Law No. 302-FZ of November 2, 2013 - Collection of Legislation of the Russian Federation, 2013, No. 44, Art. 5641)

Commentary on Article 208

An object

crimes - public safety.

Parts 1 and 2 art. 208 of the Criminal Code of the Russian Federation are independent elements of crimes.

Objective side

crime under Part 1 of Art. 208 of the Criminal Code of the Russian Federation, includes two alternative actions: creation and leadership of an armed formation. The objective side of the crime provided for in Part 2 of Art. 208 of the Criminal Code of the Russian Federation, consists of participation in an armed formation.

A mandatory element of the crime is the illegality of the armed formation. In accordance with paragraph 9 of Art. 1 of the Federal Law of May 31, 1996 N 61-FZ “On Defense” the creation and existence of formations that have a military organization or weapons and military equipment, or which provide for military service not provided for by federal laws, is prohibited and prosecuted by law <1 >.

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<1> Northwestern Russian Federation. 1996. N 23. Art. 2750.

Thus, an armed formation not provided for by federal laws is illegal. Such laws include, for example, Law of the Russian Federation dated April 18, 1991 N 1026-1 “On the Police”, Federal Law dated February 6, 1997 N 27-FZ “On Internal Troops of the Ministry of Internal Affairs of the Russian Federation”, Federal Law dated April 3, 1995 “On the Federal Security Service” and some others. There is no consensus regarding the concept of “formation” in the legal literature. Some authors believe that in order to reveal its content, it is correct to turn to the Russian language dictionary and understand by such a formation an association of persons similar in its characteristics to a military unit <1>. Others believe that at least two participants are sufficient for formation <2>.

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<1> Maltsev V. Responsibility for organizing an illegal armed group or participating in it // SPS “ConsultantPlus”.

<2> Galakhova A.V..

Trial by jury: qualification of crimes and procedure for considering cases. M., 2006 // SPS “ConsultantPlus”.

From our point of view, when defining the concept of “formation”, one should proceed from a comparison with the size of the lowest echelon of a legal armed military formation - a squad, consisting, as a rule, of at least ten people. This approach is due to the fact that the armed formation is called upon to solve combat missions, which, in turn, must be provided with certain personnel. At the same time, attention should be paid to the fact that specific combat operations can be carried out by a smaller number of people included in the formation.

An illegal armed group is a group of people organized outside the framework of federal laws who possess weapons, the number and destructive power of which are sufficient to carry out one-time actions or long-term military operations, and pose a threat to the constitutional order, territorial integrity, individual rights and freedoms as elements of public security.

The creation of an illegal armed formation refers to the actions of selecting and recruiting members of the formation, providing them with weapons, developing the structure and “charter” of this illegal association, and setting any goals and objectives for ordinary members of the association.

A mandatory feature of a formation is its armament, i.e. members of an association, detachment, squad or other group have firearms or bladed weapons, including throwing weapons, gas weapons (pistols, revolvers), as well as pneumatic weapons with a muzzle energy of more than 7.5 J and a caliber of more than 4.5 mm. The presence of types of weapons and weapons not provided for by the Law “On Weapons”, for example, bacteriological, chemical, artillery, is also not excluded.

Not all members of the formation may be armed. This does not affect the existence of a crime.

The leadership of an illegal armed formation is expressed in determining the directions of activity of an already created formation (developing plans, conducting classes, organizing duties, placing personnel, etc.).

The elements of the crime are formal, the act is completed from the moment of creation or leadership of an illegal armed group.

Subjective side

crimes are characterized by direct intent. The culprit realizes that he is creating an illegal armed group and wants to create it.

Subject

general crime - a sane person who has reached the age of sixteen years.

Part 2 of Art. 208 of the Criminal Code of the Russian Federation provides for liability for participation in an armed formation not provided for by federal law.

Participation in an illegal armed formation means joining it and performing any actions in accordance with the plans of this formation. Participation in an illegal armed group can be expressed in the performance of various types of tasks to arrange the location; in carrying out patrolling, duty; in the presence of ongoing classes and exercises, etc.

The elements of the crime are formal, the act is completed from the moment of performing any action indicating the participation of a person in an armed formation.

Subjective side

crimes are characterized by direct intent. The perpetrator realizes that he is participating in the specified formation and wants to take appropriate actions.

Subject

general crime - a sane person who has reached the age of sixteen years.

The organization of an illegal armed group and participation in it should be distinguished from the composition of an armed rebellion, provided for in Art. 279 of the Criminal Code of the Russian Federation. The difference lies in the subjective and objective side of the crime. An armed rebellion presupposes the presence of a goal and actions directly aimed at overthrowing or changing the constitutional system of the Russian Federation, which is not included in the subjective and objective side of the creation of an illegal armed group. When organizing an illegal armed group and armed rebellion, the act should be qualified according to the totality of crimes provided for in Art. Art. 208, 279 of the Criminal Code of the Russian Federation.

According to the note to Art. 208 of the Criminal Code of the Russian Federation, a person who voluntarily ceases participation in an illegal armed group and surrenders weapons is exempt from criminal liability unless his actions contain another crime. Thus, the application specified in the note to Art. 208 of the Criminal Code of the Russian Federation is possible if three conditions are met: a) voluntary termination of participation in an illegal armed formation; b) surrender of weapons; c) the absence of other elements of a crime in the person’s actions. The question of whether the note applies to the leader of an illegal armed group, we believe, should be decided negatively based on the literal meaning of the interpretation of the note. In addition, the activities of the organizer are more socially dangerous compared to the acts of another participant in an illegal armed group. Even with a voluntary cessation of the crime, the organizer must not only stop his own actions, but also ensure the liquidation of the illegal armed group and its dissolution. Therefore, only the withdrawal of the organizer from the illegal armed group can only be regarded as a circumstance mitigating the punishment.

Second commentary to Art. 208 of the Criminal Code of the Russian Federation

1. The objective side of the composition is characterized by several alternative actions:

a) the creation of an illegal armed formation (IAF); b) leadership of such a formation;

c) its financing;

d) participation in an armed formation not provided for by federal law, as well as participation on the territory of a foreign state in an armed formation not provided for by the legislation of that state, for purposes contrary to the interests of the Russian Federation (Part 2 of Article 208).

2. An armed formation, the creation of which was carried out contrary to the requirements established by federal legislation, is recognized as illegal (Article 13 of the Constitution of the Russian Federation, paragraph 9 of Article 1 of the Federal Law of May 31, 1996 No. 61-FZ “On Defense”, etc.).

Armed formations that are created on the basis of decisions of authorities and administration of constituent entities of the Russian Federation, local self-government bodies, as well as federal executive authorities may also be recognized as illegal, due to the fact that defense and security fall under the exclusive jurisdiction of the Russian Federation (Article 71 of the Constitution RF).

If a stable armed group is created to commit terrorist acts, forcibly change the foundations of the constitutional order, or violate the territorial integrity of the Russian Federation, then criminal liability should arise under Art. 205.4, not Art. 208.

By formation, the legislator understands an association, detachment, squad or other group. An illegal armed group is a special type of organized group, so it must have those essential features that are inherent to it: stability, internal discipline, distribution of roles, etc.

A formation will be considered armed if its members have any weapons, ammunition, explosives and explosive devices, including handicrafts, as well as military equipment.

3. Creation, management and participation in illegal armed groups, see commentary in Art. 205.4 CC.

4. Financing means the provision or collection of funds or the provision of financial services with the understanding that they are provided to finance an illegal armed formation.

In cases where a person promotes terrorist activities by financing an illegal armed group, his actions are covered by Part 1 of Art. 208, and additional qualifications under Part 1 of Art. 205.1 of the Criminal Code is not required as financing of terrorism.

5. The crime is recognized as completed from the moment of creation of an illegal armed group, or the commission of actions to lead such a formation, or its financing (Part 1 of Article 208), or from the moment of participation in it (Part 2 of Article 208).

When a participant in an illegal armed group commits a specific crime, his actions must be qualified according to the totality of crimes provided for in Part 2 of Art. 208 and the corresponding article of the Criminal Code.

6. The subjective side is characterized by direct intent. Motives and goals may be different. An illegal armed formation may pursue non-criminal goals, which, due to its illegality and armament, i.e. obvious potential danger of formation, become destructive for society.

7. The subject of the crime is a person who has reached the age of 16 years. According to Part 1 of Art. 208, the organizers, leaders and persons who financed illegal armed groups are subject to liability, and under Part 2 of Art. 208 - persons who participated in it.

8. In accordance with the note to Art. 208 person is exempt from criminal liability if several conditions are met:

1) a crime provided for in Part 2 of Art. 208, committed for the first time;

2) it must voluntarily stop participating in illegal armed groups and surrender its weapons;

3) his actions do not contain signs of another crime.

Article 208. Claims to which the limitation period does not apply

Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 329-O Article 208 of the Civil Code of the Russian Federation that the limitation period does not apply, in particular, to the demands of the owner or other owner to eliminate any violations of his rights, even if these violations were not combined with deprivation of possession (Article 304 of this Code), and Article 304 of the same Code in their interrelation - to the extent that, according to the meaning given to them by law enforcement practice, they allow not to apply the general limitation period in cases where, in accordance with the law it was necessary to present a claim that was subject to limitation;

Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 330-O

Article 208 of the Civil Code of the Russian Federation stating that the limitation period does not apply, in particular, to the demands of the owner or other possessor to eliminate any violations of his rights, even if these violations were not associated with deprivation of possession (Article 304 of this Code), and Article 304 of the same Code in their interrelation - to the extent that, according to the meaning given to them by law enforcement practice, they allow not to apply the general limitation period in cases where, in accordance with the law, it was necessary to present a claim to which the limitation period applies;

Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 480-O

As for the Determination of the Constitutional Court of the Russian Federation of November 3, 2006 N 445-O, referred to by N.S. Zubarev in support of his position on the complaint, he revealed the constitutional and legal meaning of Article 208 of the Civil Code of the Russian Federation (in conjunction with the provisions of the Law of the Russian Federation “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant”) as not preventing the collection for the past, without limiting any period of time, of amounts of compensation for damage not received in a timely manner by the affected persons, caused, in particular, as a result of the Chernobyl disaster, through the fault of the authorities obligated to make such payments. This decision remains in force, and the legal position of the Constitutional Court of the Russian Federation expressed in it, contrary to the applicant’s statement, does not require confirmation. In addition, part one of Article 2 of Federal Law No. 5-FZ of February 12, 2001 was not the subject of study by the Constitutional Court of the Russian Federation in this decision.

Ruling of the Supreme Court of the Russian Federation dated 04/08/2019 N 308-ES18-25496 in case N A32-12361/2017

Meanwhile, the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation in the said resolution was formed in a case in which the plaintiff, the owner of a real estate property, in order to protect his right to privatize the land plot under his real estate property, filed a lawsuit to declare the transaction for the sale of a land plot invalid, therefore The court, on the basis of Articles 208 and 304 of the Civil Code of the Russian Federation, qualified the requirement to invalidate the transaction for the alienation of the land plot under this building as not related to deprivation of possession and not subject to the limitation period.

Determination of the Constitutional Court of the Russian Federation dated March 26, 2019 N 704-O

1. Citizen A.A. Krivonkin, one of the defendants obliged to restore to its original condition a land plot and common property in an apartment building, the size of which was reduced without the consent of the owners of the premises, challenges the constitutionality of paragraph five of Article 208 of the Civil Code of the Russian Federation (erroneously called paragraph four in the complaint), in accordance with by which the limitation period does not apply to the demands of the owner or another possessor to eliminate any violations of his right, even if these violations were not associated with deprivation of possession (Article 304 of this Code), as well as Article 304 of the same Code, according to which the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

Determination of the Constitutional Court of the Russian Federation dated June 25, 2019 N 1590-O

THE FIRST AND FIFTH ARTICLES 208 AND ARTICLE 304 OF THE CIVIL CODE OF THE RUSSIAN FEDERATION The Constitutional Court of the Russian Federation composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, O.S. Khokhryakova, V.G. Yaroslavtseva,

Determination of the Constitutional Court of the Russian Federation dated June 25, 2019 N 1594-O

1. Citizen V.V. Chipizhny, who was denied a number of demands, including the invalidation of the decisions of the head of the district administration and the head of the district and the recognition as absent of the registered ownership of one of the defendants to land plots, and in the case in which the court indicated that these decisions do not violate his rights and that he missed the statute of limitations, as stated by the defendants, challenges the constitutionality of paragraph five of Article 208 of the Civil Code of the Russian Federation, according to which the statute of limitations does not apply to the demands of the owner or other possessor to eliminate any violations of his rights, even these violations were not associated with deprivation of possession (Article 304 of this Code), as well as Article 304 of the same Code, according to which the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

Determination of the Constitutional Court of the Russian Federation dated July 18, 2019 N 2104-O

According to the applicant, these norms contradict Articles 19 (Part 1) and 35 (Parts 1 and 2) of the Constitution of the Russian Federation, since, according to the meaning given to them by law enforcement practice, they can be applied to relations that arose before their entry into force, and Article 208, paragraph 1 of Article 222 and Article 304 of the Civil Code of the Russian Federation - as well as allowing not to apply the limitation period to the requirement for the demolition of an unauthorized building.

Determination of the Constitutional Court of the Russian Federation dated July 18, 2019 N 2177-O

Meanwhile, presented by A.N. Mitya’s documents do not confirm that the courts applied the provisions of Article 208 of the Civil Code of the Russian Federation when resolving his labor dispute. As for Articles 355 - 358 of the Labor Code of the Russian Federation and the provisions of Articles 5, 8, 10 and 12 of the Federal Law “On the Procedure for Considering Appeals of Citizens of the Russian Federation”, contested by the applicant, from the moment of court decisions (decision of the Leninsky District Court of the city of Sevastopol dated May 22 2021, the appeal ruling of the judicial panel for administrative cases of the Sevastopol City Court dated August 15, 2021), presented by the applicant and confirming the fact of application of these norms in his case, and before his filing of the initial complaint with the Constitutional Court of the Russian Federation (March 17, 2021) passed more than a year - the period provided for applying to the Constitutional Court of the Russian Federation. Letters from employees of the Supreme Court of the Russian Federation dated February 27, 2018 and January 22, 2021, which explained to the applicant the procedure for appealing these judicial acts in cassation, cannot be considered as documents confirming the application of these norms in the aspect indicated in the complaint.

Determination of the Constitutional Court of the Russian Federation dated July 18, 2019 N 1971-O

The contested provision of Article 208 of the Civil Code of the Russian Federation is aimed at protecting the rights of the owner or other possessor, taking into account the specifics of violations of law, the elimination of which their demands are aimed at (rulings of the Constitutional Court of the Russian Federation dated March 29, 2021 N 518-O, dated April 20, 2021 N 870 -O, etc.).

Determination of the Constitutional Court of the Russian Federation dated July 18, 2019 N 1972-O

The contested norm cannot - including taking into account the fact that, according to the meaning attached to law enforcement practice, paragraph five of Article 208 of the Civil Code of the Russian Federation does not apply to claims that are not negative (paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N 43 “On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period”) - be considered as violating the constitutional rights of the applicant listed in the complaint, in a case in which the claims against citizen K. were partially satisfied, and in satisfying the claims made against him the claim was denied.

Comment on the article

In order for the court to qualify a crime under Art. 208 of the Criminal Code of the Russian Federation, there must be indisputable evidence that the created illegal armed formation had weapons that individuals could use or used at one time or another during the commission of a crime. When considering cases, courts are very often faced with the need to characterize and classify weapons that fall under the definition of “armed formation.”

This includes:

edged weapons (throwing and non-throwing types);
firearms (small arms, smoothbore, sporting weapons, etc.);
homemade weapon.

Self-production of firearms is a separate type of crime, and when sentencing, the charge will be presented based on the totality of crimes, taking into account Article 223 “Illegal production of weapons.”
In addition, each type of weapon is divided into several subtypes. Within the framework of this article, it does not make sense to delve into the history of the creation of weapons for killing people. In general terms, it can be: household, military and sporting weapons. The full characteristics of military and other weapons can be found, for example, on the Wikipedia website.

The presence of weapons in the case is a necessary factor by which one can talk about such a criminal offense as organizing an illegal armed group and/or participating in its activities.