ST 210 of the Criminal Code of the Russian Federation.
1. Creation of a criminal community (criminal organization) for the purpose of committing one or more serious or especially serious crimes or management of a criminal community (criminal organization) or its structural units, as well as coordination of the actions of organized groups, the creation of stable connections between them , development of plans and creation of conditions for the commission of crimes by organized groups, division of spheres of criminal influence and (or) criminal proceeds between such groups -
shall be punishable by imprisonment for a term of twelve to twenty years with a fine in the amount of up to five 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 it and with restriction of freedom for a term of one to two years.
1.1. Participation in a meeting of organizers, managers (leaders) or other representatives of criminal communities (criminal organizations) and (or) organized groups for the purpose of committing at least one of the crimes provided for in part one of this article -
shall be 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 a period of up to five years, or without it, and with restriction of freedom for a term of one to two years.
2. Participation in a criminal community (criminal organization) -
shall be punishable by imprisonment for a term of seven to ten years with a fine in the amount of up to three 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 it and with restriction of freedom for a term of one to two years.
3. Acts provided for in parts one, one.1 or two of this article, committed by a person using his official position, -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of up to five 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 it, and with restriction of freedom for a term of one to two years.
4. Acts provided for in parts one or one.1 of this article, committed by a person occupying a higher position in the criminal hierarchy -
shall be punishable by imprisonment for a term of fifteen to twenty years with a fine in the amount of up to five 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 it and with restriction of freedom for a term of one to two years or life imprisonment freedom.
Notes. 1. Founders, participants, managers, members of management bodies and employees of an organization registered as a legal entity, and (or) managers, employees of its structural division are not subject to criminal liability under this article only due to the organizational structure of the organization and (or) its structural unit and the commission of any crime in connection with the exercise of their powers to manage the organization or in connection with the organization’s implementation of entrepreneurial or other economic activities, except for the case when this organization and (or) its structural unit were knowingly created to commit one or several serious or especially serious crimes.
2. A person who has committed at least one of the crimes provided for in this article, who has voluntarily ceased participation in a criminal community (criminal organization) or a structural unit included in it, or who has reported an upcoming meeting of organizers, managers (leaders) or other representatives of criminal communities (criminal organizations) and (or) organized groups and actively contributed to the disclosure or suppression of the activities of a criminal community (criminal organization) or a structural unit included in it (it) and (or) the disclosure and (or) suppression of crimes committed by a criminal community (criminal organization) ) or a structural unit included in it (her), is exempt from criminal liability unless its actions contain another crime.
Commentary to Art. 210 Criminal Code
1. A criminal community (criminal organization) is the most dangerous form of complicity (see commentary to Article 35 of the Criminal Code).
2. From the point of view of the objective side of Art. 210 of the Criminal Code provides for two elements of crime. The corpus delicti contained in Part 1 is characterized by alternatively provided actions: a) the creation of a criminal community (criminal organization); b) management of such a community (organization) or its structural divisions; c) coordination of criminal actions, creation of stable connections between various independently operating organized groups, development of plans and creation of conditions for the commission of crimes by such groups or division of spheres of criminal influence and criminal proceeds between them; d) participation in the meeting of organizers, managers (leaders) or other representatives of organized groups. The corpus delicti contained in Part 2 is characterized by participation in a criminal community (criminal organization). The content of the listed actions is disclosed in Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 2010 No. 12 “On judicial practice in considering criminal cases involving the organization of a criminal community (criminal organization) or participation in it (it).”
3. The qualified composition (part 3) is the same for both compositions of the organization of a criminal community (criminal organization) and involves the commission of a crime by a person using his official position; especially qualified personnel (part 4) presupposes responsibility for the commission of a crime provided for in part 1 by a person occupying a higher position in the criminal hierarchy (clauses 23 - 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 10, 2010 No. 12).
4. Note to Art. 210 of the Criminal Code of the Russian Federation (which extends to criminal actions provided for in Part 2 of the article, and partially in Part 1 (only for organizers, managers (leaders) or other representatives of organized groups participating in the meeting)) provides the basis for exemption from criminal liability for this crime in connection with with active repentance.
5. The commission by a criminal community (criminal organization) of criminal acts that form independent elements of crimes is qualified in conjunction with Art. 210 of the Criminal Code of the Russian Federation.
Under what articles will criminal charges be filed for cash withdrawal?
Cash withdrawal is an operation to convert non-cash funds into cash. There are millions of such transactions carried out around the world every day, most of which are unremarkable. However, there are also those that are made to remove money from tax and other government control (these are “cash transactions”).
The Criminal Code does not contain a rule directly establishing liability for cash withdrawal. At the same time, the actions performed by a person in the process of cashing out contain signs of a number of crimes provided for by the Criminal Code.
Most of these crimes are classified as serious.
The sanction is imprisonment. What is happening today with the practice of bringing to criminal liability those involved in “cash-out”?
For the analysis, we used the electronic service “Gas-Justice” and analyzed judicial acts for the last two years (2018-2019).
During this time, Russian courts passed more than 400 sentences against persons who carried out “cash” transactions. The largest share (more than 100) is occupied by sentences under Art. 199 of the Criminal Code of the Russian Federation ( tax evasion ). Those who resorted to tax evasion were brought to criminal liability. Persons who commit a crime under Part 1 of Art. 199 of the Criminal Code of the Russian Federation, the courts impose punishment in the form of a fine of 100,000 rubles. up to 200,000 rubles, if there are qualifying characteristics (commitment of an act by an organized group, a particularly large amount of unpaid taxes to the budget), the act is qualified under Part 2 of this article, and the punishment is imposed in the form of imprisonment from 2 to 4 years.
Sentences (slightly less than 100 for each) under Articles 172 ( illegal banking activities ), 173.1 ( formation of a legal entity through nominees ) and 187 ( illegal circulation of means of payment ) of the Criminal Code of the Russian Federation are very common. According to them, persons who were engaged in cash withdrawal for personal purposes, as well as in the interests of other persons on a reimbursable basis, were brought to justice. For crimes under Part 1 of Art. 172 of the Criminal Code of the Russian Federation, the courts impose a sentence of imprisonment for a term of 1 to 2 years, if there are qualifying criteria (committing an act by an organized group, generating income on a particularly large scale), the act is qualified under Part 2 of the article with a punishment of imprisonment for a period of 2 to 5 years.
For crimes under Art.
173.1 of the Criminal Code of the Russian Federation, courts impose a sentence of imprisonment for up to 1 year. According to Part 1 of Art. 187 of the Criminal Code of the Russian Federation, the courts impose punishment in the form of imprisonment for a term of up to 1 year, if there are qualifying criteria (commitment of an act by an organized group), the act is qualified under Part 2 of this article, and the punishment is imposed in the form of imprisonment for a term of 1 to 2 years years.
A small number of sentences (about 10 for each article) were handed down by the courts under articles 173.2 ( illegal use of documents for the formation (creation, reorganization) of a legal entity ), 199.2 ( concealment of funds or property of an organization or individual entrepreneur, at the expense of which taxes should be collected , fees, insurance premiums ), 210 ( organization of a criminal community ) and Part 3 of Art. 327 ( forgery, production or circulation of counterfeit documents, state awards, stamps, seals or forms ) of the Criminal Code of the Russian Federation.
According to Part 1 of Art.
173.2 of the Criminal Code of the Russian Federation, sentences were passed on persons who had no intention of carrying out entrepreneurial activities, but who provided their data to third parties for the state registration of legal entities used to carry out transit operations during “cash out”. For committing such an act, the courts impose punishment in the form of correctional labor for up to 1 year. According to Part 3 of Art. 327 of the Criminal Code of the Russian Federation, persons who use false passports of Russian citizens for state registration of legal entities used in transit operations during “cash out” are brought to justice. For committing such an act, the courts impose a punishment in the form of compulsory labor for a period of up to 300 hours.
According to Art. 199.2 of the Criminal Code of the Russian Federation, persons who resort to tax evasion by withdrawing funds from the company, which can be levied to pay off tax arrears, are held accountable. Persons who commit a crime under Part 1 of Art. 199.2 of the Criminal Code of the Russian Federation, the courts impose punishment in the form of a fine of 100,000 rubles. up to 200,000 rubles, if there are qualifying characteristics (committing a criminal act on an especially large scale), the act is qualified under Part 2 of the said article, and the punishment is imposed in the form of a fine of up to 700,000 rubles.
According to Part 2 of Art. 210 of the Criminal Code of the Russian Federation brought to justice members of a criminal community, the main activity of which was the implementation of “cash transactions”. For committing such an act, the courts impose a punishment of imprisonment for a term of 3 years and 6 months.
Thus, despite the presence of various types of punishment in the sanctions under these articles (fine, compulsory or forced labor), for committing almost every crime in the field of cashing, the courts assign a type of punishment to the convicted person - imprisonment.
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Second commentary to Art. 210 of the Criminal Code of the Russian Federation
1. A criminal community (criminal organization) can be of two types:
1) structured organized group;
2) an association of independent organized groups operating under a single leadership, whose members united for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefits.
2. The first type of criminal community has the characteristics of an organized group, as well as structure. Such a group has existed for a long time, so it is not typical for it to commit only one or several crimes.
Structurality as a sign of a criminal community emphasizes its structure, internal structure (the presence of hierarchically organized groups, units, their possible “specialization” or the implementation of special functions, for example, planning the commission of crimes and countermeasures to solve them, ensuring interaction between various structural parts of the community (organization) , maintaining connections with corrupt law enforcement officials, other state and municipal bodies, etc.).
3. The second type of criminal community is the unification under a single leadership of independently operating organized groups to jointly commit one or more serious or especially serious crimes in order to obtain directly or indirectly financial or other material benefits. Leaders and members of such a community must be aware of the general goals of its functioning and their belonging to it.
4. In part 1 of Art. 210 provides for responsibility for:
1) creation of a criminal community (criminal organization);
2) community leadership;
3) management of its structural divisions.
Their content coincides with the content of similar acts provided for in Art. 208 and 209 of the Criminal Code.
Leadership of an association of organized groups can be expressed in:
1) coordination of the actions of organized groups;
2) creating stable connections between them;
3) developing plans and creating conditions for the joint commission of crimes by organized groups;
4) division of spheres of criminal influence and (or) criminal proceeds between such groups.
5. The crime is over from the moment the act is committed. For example, if the crime consists of creating a criminal community, then it is over from the moment of its actual formation, regardless of whether the participants of such a community committed planned crimes.
6. The subjective side is characterized by the direct intent and purpose of committing grave and especially grave crimes. For the second type of criminal community (an association of independent organized groups operating under a single leadership), the goal in Art. 35 of the Criminal Code has been clarified - committing grave and especially grave crimes to obtain directly or indirectly financial or other material benefits.
7. The subject of the crime is a person who has reached the age of 16 years.
8. Part 11 of the commented article establishes the responsibility of participants in the meeting of organizers, managers (leaders) or other representatives of criminal communities (criminal organizations) and (or) organized groups who are not organizers (leaders) or participants of a criminal community (criminal organization). A prerequisite for the onset of criminal liability of such persons is that the meeting must discuss issues related to the planning or organization of the commission of at least one of the crimes for which a criminal community (criminal organization) has been created.
9. Participants in the criminal community are held criminally liable under Part 2 of Art. 210. The content of “participation” completely coincides with the content of a similar act described in Part 2 of Art. 208 of the Criminal Code.
10. Part 3 art. 210 establishes a qualified crime: the commission of an act by a person using his official position. If a crime is committed by a person occupying a higher position in the criminal hierarchy, then liability arises under Part 4 of Art. 210. His leadership in the criminal hierarchy, in particular, may be evidenced by the presence of connections with extremist and terrorist organizations or the presence of corruption ties, etc.
11. In the note to Art. 210 provides for the conditions for the release from criminal liability of participants in a criminal community (criminal organization) or participants in a meeting of organizers, managers (leaders) or other representatives of criminal communities (criminal organizations) and (or) organized groups who are not leaders or organizers of these groups.
Tougher punishment
In 2021, Russian President Vladimir Putin submitted to the State Duma draft amendments to the Criminal and Criminal Procedure Codes, which tighten responsibility for the creation and management of an organized criminal community. On March 14, the amendments were adopted by the State Duma of the Russian Federation, and on March 27, they were approved by the Federation Council. The law will come into force after it is signed by the president.
The Criminal Code is supplemented by a new article 210.1 (“Occupying a higher position in the criminal hierarchy”), which establishes a punishment for this crime in the form of imprisonment for a term of eight to 15 years with a possible fine of up to 5 million rubles. When imposing cumulative penalties, the maximum term of imprisonment cannot be more than 30 years, and for cumulative sentences - more than 35 years. In addition, the law provides that persons occupying a higher position in the criminal hierarchy cannot be given a sentence below the lowest limit or a suspended sentence.
A separate element of the crime is the rule relating to meetings of leaders and members of organized crime groups (so-called gatherings) for the purpose of committing at least one of the crimes provided for in Article 210 of the Criminal Code of the Russian Federation. The punishment for this is established in the form of imprisonment for a term of 12 to 20 years with a possible fine of up to 1 million rubles. In addition, fines for organizing and leading an organized criminal group, as well as for using an official position, are increasing - up to 5 million rubles. Participation in a criminal community will be punishable by imprisonment for a term of seven to 10 years with a fine of up to 3 million rubles.
Signs of a criminal group
An organized crime group is a community of like-minded people who come together to commit crimes. Characterizes this group:
- Composition consistency. It does not fall apart in confrontations with other organized crime groups and law enforcement officers.
- Orientation to commit crimes.
- A group consists of 2 or more people.
Articles No. 35, 209 and 210 of the Criminal Code of the Russian Federation apply to such associations.
There are several types of organized crime groups:
- Mafia-type groups, united by strict rules that are mandatory for all participants.
- Ethnic organized crime groups covering a wide geography, in accordance with the settlement of representatives of a certain ethnic group.
- Professional associations, which include experienced representatives of the criminal world.
In addition to this, there are other classifications of criminal associations.
