ST 209 of the Criminal Code of the Russian Federation.
1. Creation of a stable armed group (gang) for the purpose of attacking citizens or organizations, as well as leadership of such a group (gang) - shall be punishable by imprisonment for a term of ten to fifteen years with a fine of up to one million rubles or in the amount of wages or other income of the convicted person for a period of up to five years or without it and with restriction of freedom for a period of one to two years.
2. Participation in a stable armed group (gang) or in attacks committed by it - is punishable by imprisonment for a term of eight to fifteen years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years or without such and with restriction of freedom for up to one year.
3. Acts provided for in parts one or two of this article, committed by a person using his official position, are punishable by imprisonment for a term of twelve to twenty years with a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for the period up to five years or without it and with restriction of freedom for a period of one to two years.
Qualification of banditry
The crime will be qualified under Art. 209 of the Criminal Code of the Russian Federation, regardless of the role of the attacker. It also punishes the creation of a stable armed group to attack citizens and its leadership, as well as participation in the attacks.
A gang will be considered a group of two or more individuals, which was created specifically for attacks on citizens or organizations and is of a sustainable nature. Such a group can be created for one large-scale crime, if the attackers carefully prepare for it.
A gang should be distinguished from other organized groups. Its signs are indicated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 17, 1997 No. 1. This is the presence of weapons and specific goals - carrying out attacks on citizens and companies.
The following speaks about the stability of the gang:
- permanent composition;
- close relationship between participants;
- coordination of actions;
- use of the same forms and methods of criminal actions;
- long lifespan;
- the number of crimes committed.
A mandatory sign of banditry is that the gang members are armed. This means that they carry out their attacks using weapons: firearms or bladed weapons, regardless of whether they were purchased or made independently. This also includes explosives, gas weapons and pneumatics. At the same time, tear gas canisters, stun guns and other devices that do not require special permission cannot be considered as weapons.
In addition, criminal liability for banditry presupposes the use of serviceable weapons. If this is an unsuitable device or its design, the crime will not be classified under this article.
Note!
A gang can be considered armed if at least one member has a weapon and the rest know about it.
Speaking about the qualification of banditry, it is necessary to define attacks as its main feature. They mean violent actions against a victim to achieve a criminal result or creating a threat of violence. Attacks by an armed gang include even those cases where weapons were not actually used.
The creation of a gang is understood as any action aimed at organizing an illegal community. This could be conspiracy, financing, buying weapons, searching for accomplices.
Banditry is considered a completed crime at the moment when the gang is created, regardless of whether it managed to accomplish its intended purpose or not. If the actions of the attacker were stopped during the formation of a criminal group, they will be classified as an attempt to create a gang.
Leadership of an illegal association means planning its activities, providing financial assistance, distributing the roles of participants, and committing specific crimes.
Participation in a gang is considered to be any active actions of a person, including financing, providing weapons, information, and searching for targets for criminal attacks.
The qualification of banditry also implies the participation in attacks of other persons who are not members of the group, but are aware that they are taking part in a crime committed by the gang. According to Art. 209 may also qualify the actions of third parties who helped carry out the attacks.
Separately, the Criminal Code of the Russian Federation talks about banditry using official position. This crime refers to situations where an attacker commits an illegal act with the help of:
- official powers;
- uniforms;
- information known by virtue of the position;
- various service clearances, etc.
When qualifying, courts pay attention to the goals of the criminals. This includes not only the seizure of property and money, but also murder, rape, extortion, destruction or damage to other people's property, etc.
Note!
Specific crimes committed by gang members during the attack are punished under separate articles by adding up the penalties.
Any of the forms of banditry provided for by the Criminal Code of the Russian Federation is possible only with direct intent.
What we thought
To determine the proportion of those acquitted and those whose cases were dismissed in court, we used statistics from the Judicial Department of the Supreme Court. These data are contained in various forms in forms No. 10.3 “Report on the types of punishment for the most serious crime (without taking into account addition)” and No. 10-a “Report on the number of convicts for all crimes of the Criminal Code of the Russian Federation.” We analyzed data from these forms over the past five years. By economic we mean articles from Chapter 22 of the Criminal Code of Russia, by corruption we mean articles 204–204.2 and 289–291.2.
Art. 209 of the Criminal Code of the Russian Federation for banditry: commentary
According to the Criminal Code of the Russian Federation, banditry is punishable from the age of 16. If a teenager between the ages of 14 and 16 is a member of a gang, he is responsible only for those crimes for which sanctions are imposed from the age of 14. This:
- murder;
- causing grievous harm and moderate harm with intent;
- kidnapping;
- rape;
- sexual assault;
- theft, robbery and robbery;
- extortion;
- terrorist attack;
- hostage taking;
- participation in mass riots.
When determining sanctions under Article 209 of the Criminal Code of the Russian Federation, the court must take into account the entire set of circumstances, as well as the personal characteristics of each gang member. It is important to determine the degree of participation of attackers in a criminal group, assess their roles, the severity of the consequences resulting from their actions, etc.
How often do corruption and economic cases end?
In 2021, judges dismissed the cases of almost 1,100 people accused of corruption, or about 17% of all such cases that reached trial. The percentage of dropped corruption cases has increased fivefold compared to 2015.
The share of corruption cases dismissed at the trial stage began to rise sharply in 2021, an RBC analysis shows. If before this time it was 3–5%, then in 2021 it is already 13%, in 2019 - 17%.
Most often, cases of petty bribery are dismissed (Article 291.2 of the Criminal Code, which implies giving and receiving a bribe in the amount of less than 10 thousand rubles). Among all those convicted of corruption in 2021, 36% were convicted of petty bribery. But among those accused whose cases were dismissed by the court, two-thirds are like that.
Cases of petty bribery are most often dismissed under Art. 25.1 of the Criminal Procedure Code as a case of minor and medium gravity, imposing a court fine. Another popular reason for the termination of corruption cases of any gravity is the active repentance of the accused.
“The sanction for petty bribery is very mild; the maximum penalty is imprisonment for up to one year. The general policy emerging in the judicial system suggests that defendants are not given a real sentence for such crimes. As a rule, courts impose suspended sentences and a court fine for crimes of this kind,” Alexander Katkov, partner at the Novator legal group, told RBC.
“Cases of corruption sometimes require proof of the fact of damage caused, the reality and significance of the consequences, and criminal intent,” lawyer Inoyadov explained the high percentage of terminations.
Also, in recent years, cases have become more frequently dismissed on economic grounds. In 2021, judges discontinued proceedings against approximately every third defendant with such a composition - 3.3 thousand people avoided conviction. In 2015–2017, courts dismissed 14–18% of economic crimes. But, as in the case of corruption cases, there were no more excuses; they remained at the level of 0.2–0.4%.
Fraud cases were dropped by a third more often. In 2021, the courts dismissed every third case under Art. 159–159.6 of the Criminal Code, and five years ago every fourth was stopped. “Most likely, this is due to the fact that most fraud is now committed remotely using the Internet,” Katkov said. Even if law enforcement agencies manage to identify the alleged criminal, it is not always possible to prove his guilt in court.
Criminal liability for banditry under Art. 209 of the Criminal Code of the Russian Federation
Let's consider what criminal liability threatens under Art. 209 of the Criminal Code of the Russian Federation. For creating a stable criminal group and/or leading it, the attacker faces a prison sentence of 10 to 15 years. An additional fine of up to 1 million rubles is imposed. or in the amount of the defendant’s income for a period of up to 5 years.
Participation in attacks is punishable by 8 to 15 years in prison. The amount of the additional fine may be up to 1 million rubles. or in the amount of the defendant’s income for a period of up to 5 years.
If, in addition to everything else, the criminal used his official position, for banditry under Article 209 of the Criminal Code of the Russian Federation he can receive imprisonment from 12 to 20 years. The amount of the fine remains the same.
Note!
An attack is understood not only as direct violence and the use of weapons, but also as situations in which weapons were not used, and the bandits’ goal was achieved in another way.
For example, due to threats, mental or physical pressure, unexpected actions of intruders when they break into a room, victims, out of fear from what they see, fulfill all demands for the transfer of money, material assets, etc. to them.
Why are those accused of money laundering often acquitted?
In cases of money laundering (Article 174.1), last year the courts acquitted just under a quarter of the accused - 22.5%. The application of this article is associated with a number of difficulties for law enforcement agencies, lawyer Serdyuk points out.
Firstly, its very wording implies that only proceeds whose criminal nature has been proven can be laundered: “To bring a person to justice, it is necessary to commit a previous crime. Accordingly, if there is no corpus delicti of the main crime, it is not possible to impute money laundering.”
At the same time, there is a principle of inadmissibility of being held accountable twice for the same crime, Serdyuk recalls. And therefore, the qualification of the main mercenary charge that the accused is charged with often fully covers subsequent money laundering.
Despite the clarification of the Supreme Court, “for law enforcement officials, legalization still remains difficult in terms of interpreting the concept of a financial transaction and establishing the purpose of committing a crime.” According to the Criminal Code, a criminal must carry out operations purposefully in order to give a legitimate appearance to his criminal proceeds, and such a motive is sometimes difficult to prove. “Due to the uncertainty and instability of law enforcement practice, legalization is charged as an additional charge with the expectation that the court will sort it out,” Serdyuk noted.
Judicial practice: banditry under Art. 209 of the Criminal Code of the Russian Federation
As an example, consider the verdict of the Moscow City Court dated August 28, 2015. Two men - A.G. and A.N. - were members of a criminal group and committed two robberies: they attacked a retail outlet with weapons in order to steal property on an especially large scale . In addition, they committed five more similar crimes with threats of violence and weapons.
A.N. imposed the following sanctions:
- according to Part 2 of Art. 209 of the Criminal Code of the Russian Federation in the form of 11 years of imprisonment;
- according to paragraphs “a”, “b”, part 4 of Art. 162 of the Criminal Code of the Russian Federation (robbery) in the form of 9 years in prison.
Based on part 3, 4 art. 69 of the Criminal Code of the Russian Federation, based on the totality of crimes committed, by partial addition of punishments, the defendant received 14 years in prison.
A.G. were also found guilty of these crimes and appointed:
- according to Part 2 of Art. 209 of the Criminal Code of the Russian Federation - 10 years in prison;
- according to paragraphs “a”, “b”, part 4 of Art. 162 of the Criminal Code of the Russian Federation - 9 years in prison.
After adding up the sentences, the court issued a final verdict: 13 years in a maximum security colony.
Crime investigation
What actions do law enforcement agencies take to catch criminals? At the initial stage you should:
- inspect the crime scene;
- interview victims;
- if there are witnesses and eyewitnesses, obtain important testimony from them;
- conduct a forensic medical examination of the victim.
All these investigative measures must be taken to find out the circumstances of what happened, obtain a description of the appearance of the criminals or their special features, and obtain possible evidence in the case.
At the same time, search efforts are being carried out to identify the attackers, apprehend them and bring the case to court for further punishment.
Modern methods of investigation make it possible to quickly find criminals; after they are caught, they will be interrogated, and searches will be carried out of the places and premises where they live or visit. If the detention occurs “hot on the heels,” then an important role is assigned to a medical examination to establish traces of the crime on the body or belongings of the criminal. The results of the examination will be significant evidence in court. In addition, witnesses and victims must identify the suspects.
Once the investigation is over and evidence is collected, the case will be sent to court to further determine punishment for the villains.
Why are there no more dismissed cases?
From year to year, judges dismiss about a quarter of cases that reach court, and this proportion remains virtually unchanged , although since 2016 judges can dismiss cases on a new basis - with the imposition of a court fine, in which case the accused does not receive a criminal record.
Statistics show that, in practice, the share of dismissed cases has generally not changed significantly with the advent of this institution. This happens because, simultaneously with the more frequent termination of cases for some offenses, cases for others began to be terminated less frequently. The latter include cases of causing harm to health, beatings and torture (Articles 111–119 of the Criminal Code). In 2015, 96 thousand such cases were dismissed (48% of all those that reached the court), in 2019 - 41 thousand (40%).
