Article 209 of the Criminal Code of the Russian Federation with Commentary 2021: latest changes and amendments, judicial practice

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 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 stable armed group (gang) or in attacks committed by it -

shall be 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 it and with restriction of freedom for a term of up to one year.

3. Acts provided for in parts one or two of this article, committed by a person using his official position, -

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.

• Article 208. Organization of an illegal armed group or participation in it
• Article 210. Organization of a criminal community (criminal organization) or participation in it (it)

What does gang mean?

To understand what is prohibited by Art. 209 of the Criminal Code of the Russian Federation, it is necessary, first of all, to understand what is meant in the Criminal Code by the word gang. Its concept is explained in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 of January 17, 1997.

A gang is considered an organized, stable armed group, which may include 2 or more people, pre-formed and operating with the aim of attacking citizens or organizations.

It can be created both for the commission of an unlimited number of criminal acts, and for just one, which requires careful preparation for it.

A gang is a type of organized criminal group, the definition of which is given in Art. 35 of the Criminal Code of the Russian Federation. Its main features that distinguish it from other organized groups are, first of all, weapons and a clear goal.

The organization of a criminal group means that its members are subordinate to a leader, there is a certain hierarchy, strict discipline, the actions of the participants are coordinated and planned, etc.

stability presupposes:

• a fairly close connection between the participants;
• composition stability;
• coordination of actions;
• duration of existence;
• number of criminal acts;
• invariability in the ways of carrying out activities.

Armament - the presence of gang members with absolutely any weapon - bladed, firearm, throwing, gas, pneumatic (factory or homemade).

When determining whether the items and devices of gang members are weapons, law enforcement officers proceed from the provisions of the Federal Law “On Weapons.” In addition, this issue is resolved by experts based on the results of forensic ballistic, forensic, explosive and other examinations.

A gang is recognized as armed if at least one of its members had a weapon, provided that its presence was known to other participants. The use by the attackers of weapons unsuitable for their intended use or their imitations does not indicate that they are armed.

An attack is an action the purpose of which is to achieve a criminal result through violence against the victim or creating a real threat of its immediate use.

To assess what was done under Art. 209 of the Criminal Code of the Russian Federation, the attack will be assessed as having taken place, even if the gang members did not use weapons.

Everything about criminal cases

Go to the Plenum on banditry

Practice under Article 209 of the Criminal Code

(banditry)

Case No. 51-APU17-9

Acquittal under Part 1 209 of the Criminal Code

(creation of a gang)

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation

case No. 51-APU17-9

The Judicial Collegium for Criminal Cases of the Supreme Court considered in a court session a criminal case on appeals of those convicted against the verdict of the regional court,

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- Part 1 17 Criminal Code

in the aggregate, liability arises for each (
Part 1 69 of the Criminal Code
)

- Part 1 69 of the Criminal Code

in the aggregate, punishment separately for each crime

by whom D. was sentenced to imprisonment:

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Real totality

Real totality

: multiple acts and multiple crimes

- for three episodes according to paragraph "a"

and
clause "b" part 3 163 of the Criminal Code
(for 7 + 7 + 7 years);

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Ideal set

Ideal set

: one action - several crimes

- according to Part 1 209 of the Criminal Code

for 10 years.

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Partial addition

Partial addition

, part of the punishment is “eaten” (
Part 3 69 of the Criminal Code
)

Based on Part 3 of 69 Criminal Code

by
partial addition
of the sentences, a sentence of 11 years of imprisonment was finally imposed, to be served in a
high
-security correctional colony with restriction of freedom for 1 year, with the establishment of restrictions and the imposition of duties specified in the sentence.

After hearing the judge's report

, speeches by the convicted and in defense of their interests by lawyer
A.A. Melchaev.
, lawyers V., Ts., judicial board

installed:

By the verdict of the regional court, the convict was found guilty of committing the following crimes:

- in creating an organized group for its members to commit extortion and other crimes in order to seize the property of citizens;

— extortion (3 episodes).

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— clause 1 389.15 Code of Criminal Procedure

discrepancy between the sentence and the actual circumstances

— Part 1 389.16 Code of Criminal Procedure

the court's conclusions are not supported by evidence

Taking into account the provisions of Articles 389.15 of the Code of Criminal Procedure

-
389.16 of the Code of
, the judicial panel believes that the verdict regarding the conviction under Part
1 209 of the Criminal Code
cannot be considered legal and justified, since the court’s conclusions are not supported by the evidence considered at the court hearing, which resulted in an incorrect
legal assessment
of what the convicts did.
Having correctly established that the convicted person created an organized group
to commit crimes, and members of this group committed a number of crimes, the court’s conclusion that the convicted person created
a gang
to commit attacks on citizens in order to seize their property is erroneous.

The basis for this conclusion, according to the court, were the established facts:

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— clause 4

Plenum No. 1 - what is gang stability?

— sustainability

;

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— clause 5

Plenum No. 1, armed gangs are required

— armament

;

- organization of the group,

at the same time, the convict provided a traumatic self-loading pistol, which, according to the expert’s conclusion, was a firearm of limited destruction, office space, cars, of which all gang members were aware, and, as part of a gang with other participants, committed 2 episodes of extortion.

At the same time, the court did not take into account circumstances that are essential for the correct legal assessment of the crime:

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— clause 7

Plenum No. 1, creating a gang includes purchasing weapons

1)

The court's conclusions that the convict decided to find weapons were not based on the case materials, since he had civilian weapons, including firearms, on the basis of the appropriate permit.

(Comment: in paragraph.

Plenum No. 1 states that a sign of the creation of a gang is precisely the “acquisition” of weapons. Not using what already exists, but rather a special search).

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— clause 6

Plenum No. 1: what is an attack as part of a gang?

2)

The court’s conclusions that the convict invited other members of the gang under his leadership to carry out armed attacks on citizens in order to seize their property are not based on the case materials, since the court established that extortion in the two above-mentioned episodes began even before the creation of the gang, The indicated group did not commit any other attacks and the case materials do not contain any information about impending crimes.

(A mandatory sign of a gang

: It exists for the purpose of carrying out
attacks
.
It is this feature that distinguishes a “gang” from a simple organized group
. You need to pay attention to the dates of events. In practice, investigators extend the intent to create a gang “back in time.” That is, according to their logic, the group was already a gang from the very beginning. In this case there was an organized group, but not a gang).

3)

The court's conclusions about the existence of the convicted person and other participants using funds received as a result of crimes committed by an armed group were not supported by evidence.
(Comment: in regulatory sources there is no direct indication that a gang
must have such a sign of receiving financial gain (unlike a
criminal community
, in relation to which there is an indication
in paragraph
Plenum No. 12). However, in practice, if the accused uses the proceeds from crime as the main source of life, then investigators interpret this as an indirect sign of a gang).

Under such circumstances, the judicial panel considers it necessary in this part to cancel the sentence against the convicted person and other participants and terminate the proceedings. Considering that the changes made to the sentence affect only issues of the degree of organization of the criminal group, the grounds for recognizing the convicted person’s right to rehabilitation

due to the termination of the criminal case in part, the judicial panel does not find.

(Comment: in this example we see: charges under the totality of articles 163 of the Criminal Code

and
Part 1 209 of the Criminal Code
.
And this is the perfect set
of crimes.
What is an ideal set? This is when the second article is not a consequence of a separate independent physical action. The charge under Part 1 209 of the Criminal Code
(banditry) was added only because three episodes of extortion were committed by a group with signs of a gang (armed, etc.).
The convicts did not perform
a separate physical action.
The court writes about this “ considering that the changes made to the sentence affect only issues of the degree of organization of the criminal group
.”

determined:

Verdict regarding conviction under Part 1 209 of the Criminal Code

cancel and terminate the criminal case on the basis of
clause 2, part 1 of 24 of the Code of Criminal Procedure
for the absence of corpus delicti in the act.

For the totality of crimes provided for in paragraph "a"

and
paragraph “b” part 3 of 163 of the Criminal Code
(three episodes), by partial addition of sentences, finally impose a sentence of 8 years in prison to be served in a high-security correctional colony.

Return to the Plenum on banditry
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Composition of banditry, punishment

Art. 209 “Banditry” is designed by the legislator in such a way that the first two parts punish various actions of approximately equal severity. Its third part contains a qualifying feature that is common for actions punishable under the first two parts.

That is, the following elements will be common to all three parts:

The object is the sphere of relations in society that is harmed by crime - in this case, it is, of course, public safety.

The subject is a person who can be brought to justice for this act - for the norm under consideration, each of the gang members must be a sane person over the age of 16 years.

Expert opinion

Prokhorova Anna

Lieutenant Colonel of Justice. Higher legal education with specialization in criminal procedure.

Separately, it should be noted that Art. 209 does not punish the commission of illegal acts by gang members during an attack, the punishment for which is provided for in other articles of the Criminal Code. In other words, in addition to the above norm, everyone will be held accountable for every crime they commit under the relevant articles prohibiting these acts.

Gang members from 14 to 16 years of age are responsible only for the acts that they committed as part of the gang, if criminal liability for these acts is established from this age. Those who have reached the age of responsibility for banditry are responsible for the totality of crimes - for what they committed as part of a gang under the relevant articles of the Criminal Code and for banditry under Art. 209.

For example, in case of murder as part of a gang, liability for persons over 16 years of age will occur simultaneously under Art. 105 of the Criminal Code of the Russian Federation and Art. 209, and for teenagers from 14 to 16 years old - exclusively under Art. 105.

The subjective side is the internal content of the crime, reflecting the attitude of the perpetrator to the crime. Banditry can occur exclusively with direct intent - the criminal’s awareness of the danger of his actions, the occurrence of harm, and the desire for this result.

A necessary element is a special purpose - an attack on the victims. Moreover, the purpose of the attack itself, be it the theft of the victims’ property, theft of vehicles, arson, murder, extortion, rape, etc. for assessment under Art. 209 doesn't matter.

The objective side of acts prohibited by Art. 209 of the Criminal Code of the Russian Federation - the criminal actions themselves, the external manifestation of the crime, and the punishment for them differ.

Part 1 art. 209 of the Criminal Code of the Russian Federation

According to the 1st part of the analyzed article, alternative actions are punished:

1. Creation of a gang - any actions that led to its emergence. This could be financing, purchasing weapons, finding participants, collusion, etc. Such a crime is complete from the moment the armed gang appears, regardless of whether it has committed any crimes. If the actions of the offender to form a gang did not lead to its formation for reasons beyond his control, his actions will be regarded as an attempt to create a gang.
2. Management of a gang - making decisions on organizing its activities, supplying financial resources, planning both all criminal activities and specific attacks.

The above actions may result in punishment in the form of exclusion from society, which can last from 10 to 15 years . The following additional punishments apply:

1. Fine (if the court deems necessary):
   up to 1 million rubles;
2. or in the amount of the income of the perpetrator, which will be received for a period of up to 5 years.
3. Restriction of freedom (always assigned) from 1 to 2 years.

Part 2 Art. 209 of the Criminal Code of the Russian Federation

The second part of the article also pursues 2 different actions:

1. Participation in a gang is not only the participation of gang members in the attacks themselves and the crimes committed, but also other actions in the interests of this criminal group - providing weapons, means of communication, transportation, money, searching for targets for attacks, etc.
2. Participation in attacks committed by her . According to Art. 209 of the Criminal Code of the Russian Federation punishes not only the actions of gang members, but also other persons who are not gang members, but take direct part in crimes, realizing that they are committed by a gang. “Associates” in criminal activity who are not gang members and did not participate in attacks will be accomplices in banditry.

The punishment for such actions is imprisonment, lasting from 8 to 15 years . The additional punishment is similar to the first part of the article, with the exception of the duration of the restriction of freedom. According to Part 2, it can last up to 12 months.

The leader and organizer of the gang, even if they personally participated in the attacks, are liable exclusively under Part 1 of Art. 209 of the Criminal Code of the Russian Federation.

Part 3 Art. 209 of the Criminal Code of the Russian Federation

Here the punishment is established for the actions described in the first two with the qualifying feature - committed by a person using his official position . Consequently, in this case, special requirements are added to the general requirements for the subject.

This sign assumes that the culprit, in preparing, direct attacks, supporting the activities of the gang (financing, finding new “personnel”, weapons, etc.) uses the authority, uniform, documents, weapons, information available to him in connection with his occupation any position.

In this case, it does not matter what specific position he holds - in a state or municipal body or institution, commercial or other enterprise, organization.

In this case, imprisonment may range from 12 to 20 years . The same additional punishment is also applied as under the first part of the article.

Commentary on Article 209 of the Criminal Code of the Russian Federation

1. The signs of a gang are:

1) the presence of two or more persons;

2) sustainability;

3) armament;

4) the goal is to carry out attacks on citizens or organizations.

A gang is traditionally considered as one of the varieties of an organized group, therefore the gang must include at least two members who are sane and have reached the age of 16 years.

2. The stability of a gang can be evidenced, in particular, by such signs as the stability of its composition and organizational structures, the cohesion of its members, the constancy of forms and methods of criminal activity, the presence of a detailed plan for committing a crime that requires lengthy and thorough preparation (Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 17, 1997 No. 1 “On the practice of application by courts of legislation on liability for banditry” <1>).

——————————— <1> BVS of the Russian Federation. 1997. N 3.

3. The armed nature of a gang means that its members have any weapons, various explosive devices, explosives, ammunition and cartridges. Weapons can be either factory-made or home-made, structurally designed to hit a living target.

Possession of weapons by a gang, legally or illegally, does not affect the classification of banditry. If the weapon was acquired illegally, then criminal liability in addition to Art. 209 will additionally come under Art. Art. 222, 223 or 226 of the Criminal Code.

4. The objective side of banditry is expressed:

1) in creating a stable armed group (gang);

2) in the leadership of such a group (gang);

3) participation in a gang;

4) participation in gang attacks.

5. On the content of the signs “stability”, “weaponry” and “leadership”, see the commentary to Art. 208 of the Criminal Code.

6. Participation in attacks committed by a gang (Part 2 of Article 209) involves the activities of persons who, not being members of an armed group (gang), take part in individual attacks committed by a gang. The actions of persons who are not members of a gang and who did not take part in attacks committed by the gang, but who assist the gang, must be qualified under Part 5 of Art. 33 of the Criminal Code and the corresponding part of the commented article.

7. The crime is considered completed from the moment of creation, leadership or participation in the gang, regardless of whether the planned socially dangerous attacks were committed.

8. The commission of other crimes by a gang is subject to qualification according to the totality of the relevant crimes under Art. 209.

9. The subjective side of the crime is characterized by direct intent and a special purpose - an attack on citizens or organizations.

An attack should be understood as actions aimed at achieving a criminal result by using violence against the victim or creating a real threat of its immediate use. An attack by an armed gang is considered to have taken place even in cases where the weapons owned by the gang members were not used.

10. The subject of the crime is a sane person who has reached the age of 16 years. Persons aged 14 to 16 years who have committed various crimes as part of a gang are subject to liability only for those acts for which liability in accordance with Art. 20 of the Criminal Code is provided for from 14 years of age.

11. The actions of organizers or leaders simultaneously participating in attacks carried out by a gang are qualified only under Part 1 of Art. 209. In this case, additional qualifications under Part 2 of the commented article are not required <1>.

——————————— <1> BVS of the Russian Federation. 1998. N 11.

Another commentary on Article 209 of the Criminal Code of the Russian Federation

1. The object of the crime is public safety, life and health of people, state and public property.

2. The objective side of banditry consists of the following actions: 1) the creation of a stable armed group (gang); 2) leadership of such a group (gang); 3) participation in a stable armed group (gang) or in attacks committed by it (Part 2 of Article 209 of the Criminal Code).

The signs of a gang are: a) the presence in it of two or more sane persons who have reached the age of 16; b) stability; c) armament; d) the purpose of creation is to carry out attacks on citizens or organizations.

The Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 17, 1997 “On the practice of application by courts of legislation on liability for banditry” explains that a gang should be understood as a stable organized armed group of two or more persons who have previously united to carry out attacks on citizens or organizations (including institutions, enterprises) (Bulletin of the Supreme Court of the Russian Federation. 1997. N 2. P. 4 - 6). A gang can also be created to commit one attack, but one that requires careful preparation.

The stability of a gang can be evidenced, in particular, by such signs as the stability of its composition and organized structures, the cohesion of its members, the constancy of the forms and methods of criminal activity.

The armed nature of a gang means that its members (at least one of its members and other members of the gang are aware of this) have firearms, bladed weapons, various explosive devices, as well as gas weapons.

The creation of a gang refers to any actions that result in the emergence of a stable armed group with the goal of attacking citizens or organizations.

Leading a gang means determining the directions of activity of an already established stable armed group (developing plans for attacks, giving instructions to gang members, directing the commission of specific attacks, etc.).

Participation in an armed gang should be understood not only as direct participation in attacks carried out by the gang, but also as performing other actions in the interests of the gang: financing, supplying weapons, finding targets for attack, providing transport, etc.

An attack should be understood as actions committed with the use of any violence against the victim, or the creation of a real threat of its immediate use.

3. The composition is formal in design. The crime is considered completed from the moment the gang is created, regardless of whether it committed criminal attacks.

4. The subjective side of the crime is characterized by direct intent. The perpetrator is aware that he is creating a gang, leading it, participating in the gang or attacks committed by it, and desires it. A mandatory feature of the subjective side of banditry is the goal, which is the intention to carry out attacks on citizens or organizations.

5. The subject of the crime is a person who has reached the age of 16 and is an organizer, leader or member of a gang. Persons aged 14 to 16 years who have committed various crimes as part of a gang are subject to liability for those crimes for which liability in accordance with Art. 20 of the Criminal Code is provided for from 14 years of age.

6. Part 3 art. 209 of the Criminal Code provides for increased liability for banditry committed by a person using his official position, serving both in state (for example, an employee of internal affairs bodies, a military man) and in non-state organizations or institutions (for example, employees of private security services, security services various financial and commercial structures, etc.).

Cassation appeal against the verdict under Art. 162, 209 of the Criminal Code of the Russian Federation

To the Judicial Collegium for Criminal Cases

defense attorney (lawyer) _____________,

address: __________________________

tel.___________________________

in the interests of _____________________

APPEAL

(in accordance with Article 401.1 of the Code of Criminal Procedure of the Russian Federation)

By the verdict of the A regional court dated July 7, 20XX, R. was found guilty of participation in a gang, as well as of committing four robberies as part of a gang and was convicted under Part 2 of Art. 209, paragraph “a”, part 4, art. 162 of the Criminal Code of the Russian Federation (four episodes) using Part 3 of Art. 69 of the Criminal Code of the Russian Federation to 20 years in prison without a fine.

In accordance with Part 5 of Art. 74 of the Criminal Code of the Russian Federation R., the suspended sentence imposed by the verdict of the O-sky district court of the city of A dated March 13, 20XX was cancelled. Based on Art. 70 of the Criminal Code of the Russian Federation, based on the totality of sentences, the final punishment for R. was assigned in the form of 11 years of imprisonment without a fine, to be served in a high-security penal colony.

I do not agree with the verdict of the Arkhangelsk Regional Court, I consider it illegal, unfounded, subject to change due to the discrepancy between the court’s conclusions set out in the verdict and the actual circumstances of the case, as well as the injustice of the verdict due to excessive severity.

The court, having recognized R.'s participation in a gang, went beyond the limits of the charge brought against the latter.

As follows from the charges brought, R., for selfish reasons, in order to seize other people’s property through robbery attacks on sellers of convenience stores, knowing that Y. had barrelless traumatic weapons, joined the gang created by the latter, in which he committed four robbery attacks. Thus, he committed a crime under Part 2 of Art. 209 of the Criminal Code of the Russian Federation.

The distinction between armed robbery as part of an organized criminal group and banditry is carried out according to the object of the attack. If the main object of the crime under Art. 162 of the Criminal Code of the Russian Federation is property , and additionally human health, then for banditry the main object is the foundations of public administration in the field of ensuring public safety.

At the same time, from the descriptive and motivational part of the indictment it follows that the purpose of joining the gang was to take possession of other people's property.

Thus, the investigative body indicated the object of the encroachment - someone else's property (an element of the crime provided for in Article 162 of the Criminal Code of the Russian Federation). In this regard, I believe that the descriptive and motivational part of the indictment contradicts the operative part. At the same time, the object of encroachment provided for in Art. 209 of the Criminal Code of the Russian Federation is not specified in the indictment.

The court's conclusion that the target of the attack by the group R. and Ya. was the normal functioning of a commercial organization goes beyond the scope of the charges brought against the latter.

According to the verdict, the stability and organization of the gang is evidenced by its cohesion, the stability of its composition, the close relationship between its members, the consistency of their actions, the constancy and improvement of the forms and methods of criminal activity, the duration of its existence and the number of crimes committed.

At the same time, the signs listed by the court, as follows from the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 17, 1997 “On the practice of application by courts of legislation on liability for banditry,” reveal only the concept of the stability of a gang, but do not indicate its organization.

The organization of a gang can be evidenced, in particular, by such signs as the presence of a leader, strict discipline, unconditional submission to the leader, most of the criminal income goes to the leader, there is a hierarchy in the group, and norms of behavior have been developed. It is the presence of a leader that brings organization and purposefulness to criminal activity. The above signs are absent in the R. and Y. group.

Thus, from the testimony of the accused it follows that they were equal in their relations with each other, none of them had leadership. Witnesses Yan., Sh. testified that Ya. did not have leadership qualities.

The absence of a leader and strict discipline in the group is evidenced by R.’s refusal in the first and fourth episodes to enter the store with a pistol and demand money.

Most of the money stolen from stores remained with R., and was not transferred to Ya. It was he who, after the crime in the shopping pavilion of Bonus Market LLC on December 25, 2009, where 7,500 rubles were stolen, gave Ya. 4,000 rubles, then eat most of the stolen goods, thus disposing of the stolen goods independently.

The court hearing did not establish any criminal norms of behavior, criminal values ​​of Ya. and R.

The court's conclusions about the stability and organization of the group of Ya. and R. are not confirmed by the evidence considered at the court hearing. Thus, stability as a sign of an organized criminal group (gang) is understood as a type of subjective connections characterized by increased strength. A stable group is more cohesive. Stability can be based on the strong personal and professional connections that group members previously had, or on criminal professionalism. An indicator of stability is the careful preparation of the crime, with the distribution of roles.

The specified stability criteria for the R. and Y. group are absent. So, R. and Ya. met in October 2009, that is, shortly before the robbery. I had no criminal past. R.’s residence together with Y.’s family is not caused by the criminal interests of the convicts, but by a conflict in R.’s family (conflict with his father), and as a result, his parents’ leaving home.

According to the testimony of witnesses Yang. both Sh.R. and Ya. were completely different people, they did not understand what connected them. Thus, the connection between R. and Y. is caused by life circumstances. This connection is not based on criminal interest (trying to get a job, going to the movies, helping Ya’s wife with everyday life). The accused were connected by domestic problems. These circumstances cannot indicate the stability of the group in a criminal sense.

Visiting a movie theater, trying to get a job, visiting public catering establishments, or playing sports cannot indicate the stability of the group. These circumstances indicate the presence of normal life guidelines, the usual norms of behavior accepted in society. Thus, the court’s conclusion about the stability of the group of Ya. and R. is erroneous.

It is also impossible to agree with the court’s conclusion that the crimes were carefully prepared. Thus, from the examined evidence it follows that R. had not been to any of the shopping pavilions before committing the robberies, and accordingly did not know about the presence of security, surveillance cameras, or their location. From Ya.’s testimony it follows that he visited only the pavilion of Bonus Market LLC often, and had been to the others for a long time.

Thus, the accused did not have accurate information about the security and internal structure of the pavilions before the attack. There was no reconnaissance of the crime scene or preparation of escape routes.

From the testimony of the accused, it follows that who would enter the store with a pistol was decided immediately before the attack. The use of Ch.’s car in the last two episodes was caused by the remoteness of the shopping pavilions from Ya’s place of residence. At the same time, Ch. worked as a taxi driver and knew nothing about the crimes being committed. The totality of these circumstances indicates a lack of thorough preparation and planning of the crimes of R. and Y. They discussed the details of the crimes at the scene of the crimes and acted according to the situation. Under such circumstances: lack of stability, organization, and thorough preparation of crimes, the court’s conclusion that robbery was committed as part of an organized, armed criminal group (gang) is erroneous.

R. and Ya. committed crimes, having previously agreed on this, which they admit. R.’s actions should be qualified under Part 2 of Art. 162 of the Criminal Code of the Russian Federation for each episode as robbery committed by prior conspiracy with the use of weapons.

I believe that the court unreasonably did not apply Art. 64UKRF. Thus, the court found that the victims were compensated for material damage. According to paragraph “k” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation, this circumstance is a mitigating punishment. However, the court did not recognize this circumstance as such. From the case materials it follows that R. gave a confession at the time of his arrest for all episodes of robbery. According to the episode of December 23, 20XX, law enforcement agencies were not aware of the crime committed at all.

The victims did not report the attack. The crime became known only from the statements of the accused themselves. I believe that the specified circumstances, namely confession, compensation for material damage to the victims, the absence of grave consequences of criminal actions, no harm to the health of the victims, repentance for the deeds significantly reduce the degree of public danger of crimes. In this regard, these circumstances may be considered exceptional. Accordingly, R.’s punishment may be assigned below the lower limit than provided for this crime.

Based on the above, guided by art. Art. . 401.1, 401.8, 401.14, 401.15 Code of Criminal Procedure of the Russian Federation

ASK:

the verdict of the A regional court dated July 7, 20XX was changed, the criminal case against R. under Part 2 of Art. 209 of the Criminal Code of the Russian Federation to terminate due to the absence of corpus delicti in his actions, under paragraph “a” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation (for all episodes) to reclassify his actions to Part 2 of Art. 162 of the Criminal Code of the Russian Federation, apply Art. 64 of the Criminal Code of the Russian Federation and reduce the punishment.

The difference between banditry and other communities

In addition to banditry, the criminal code distinguishes between:

• criminal community;
• robbery;
• robbery;
• illegal armed group.

Banditry and the criminal community

A criminal community means a group that carries out its actions without the use of weapons. Community members can:

• issue counterfeit money;
• counterfeit medicines;
• produce alcohol surrogate;
• distribute drugs;
• receive income from pimping;
• trade in human organs or people.

These crimes are classified as "breach of public order" . The difference between banditry and the organization of a criminal community is the peculiarities of the use of weapons.

In a gangster group it is necessary to commit crimes; in a criminal community it is not used, although they may have it in stock.

Also, these two formations differ in different terms for committed illegal acts. If for creating a gang you face a sentence of 10-15 years, then for organizing a criminal community - 12-20 years.

Banditry and robbery

Based on the criminal law characteristics, robbery is considered the open theft and appropriation of other people's money or things.

Despite popular belief, robbery does not involve pre-planned or obligatory acts of violence against the victim.

Robbery is carried out by one person and can be a one-time crime, unlike banditry . In addition, the robbery may not be carried out according to a pre-drawn plan.

In combination with other types of offenses, robbery may be part of banditry.

Difference between banditry and robbery

In many respects, robbery has similar features to banditry - this is the seizure of someone else's property, sometimes with a weapon in hand, and an attack on the victim causing harm to the health or life of a person.

How is banditry different from robbery? The main difference between these two concepts is that banditry is a streamlined activity.

It is not committed by one person and is not spontaneous, and bandits are not limited to one crime.

Differences from an illegal armed group

In Art. 208 of the Criminal Code of the Russian Federation describes the composition of crimes committed by illegal armed groups.

Violations of illegal armed groups have similar features to banditry:

• disobedience to legislation and the current government;
• possession of military equipment, weapons, with the purpose of using them;
• the presence of professionals in the military sphere;
• military training of community members;
• clear hierarchy within the formation.

Unlike banditry, such a group does not necessarily seek material gain due to various ideological considerations.

Members of the group sometimes even act with the desire to benefit society. The participation of illegal armed groups outside our country is punished if it contradicts the interests of Russia.

Penalties for participating in or financing such an organization can range from 10 to 20 years in prison.

However, criminal prosecution can be completely stopped if the subject first took such actions, and then changed his mind, surrendered the weapon voluntarily and did not commit any other crimes.

Comments on Article 209

Banditry is an integral and most dangerous part of organized crime. Criminals are armed and can use violence with dire consequences.

Comments on the article:

1. This is a multi-objective crime: the main ones are the relations of security, protection of health, life, rights, property, freedoms. Another object is rights and freedoms.
2. The objective side is leadership, participation in gangs and crimes. Creation - taking action, the result is the formation of a group whose goal is to attack. This is the search for accomplices, collusion, training, financing, armament, provision of transport, work planning, distribution of roles.
3. Leadership - making decisions on planning, material support, organization of activities and crimes. This is the admission of new members, punishment of violators, development of security measures, attack plans, selection of targets.

Participation - a person is a member of a gang, accepted into it, and together with others realizes goals. Participation - not only direct attacks, but members performing actions for the purpose of financing, armament, and searching for objects. If a new member has just joined a gang, but has not had time to commit any actions, Article 209 of the Criminal Code of the Russian Federation calls the corpus delicti unfinished.

The participation in an attack of persons who are not members of the association, but they understand that they are participating in a crime committed by a gang, is classified as banditry. If a person is not aware of such a circumstance, he is held accountable for the crime actually committed (murder, robbery, kidnapping). The actions of non-gang members who did not take part in the attacks, but helped in criminal activities, are additionally qualified under Article 33.

Assault is a robbery against citizens, organizations, with the goal of taking possession of someone else's property, murder, hostage-taking, kidnapping. A gang is a stable group of 2 or more individuals. It can be a type of organized group or criminal community. The latter is even more dangerous than the organized one. Therefore, in the process of considering the case and investigation, it is necessary to establish the legal nature of the organization.

The gang differs from other groups and communities in its armament. A mandatory sign is the presence of firearms, bladed weapons, shells, explosives or devices based on them. The use by a participant of unusable weapons or mock-ups does not indicate that he is armed. A gang is armed if at least one member has a weapon and everyone else is aware of it. Since being armed is a mandatory feature, additional qualifications under articles 222-223 are not needed.

A gang can be created to commit one attack, but one that requires careful preparation - robbing a bank or a cash collector's car. The creation is complete regardless of the commission of the crime. If the actions of a person were stopped, but did not lead to the creation of a gang, then they are qualified as an attempt to create.

Participation in a gang ends at the moment a person joins it, and participation in attacks ends at the moment of an attempt to seize property, money, and valuables. The crime is committed with direct intent. Also, its goals may be rape, extortion, and destruction of property.

Subject is a person over 16 years of age. If one of the two members is under 16, then it is not a gang. Persons 14-16 years old who participate in crimes as part of a gang are subject to punishment only for those for which responsibility begins at the age of 14.

In parts 1 and 2 of the article the main elements of banditry are given, in part 3 - the qualifying feature. Committing banditry using one's official position - using authority, identification, weapons, and information at one's disposal. A person can help a gang in preparing or committing crimes, finance it, arm it, equip it with material, and select new members.

Other comments on the article:

• The criminal acts committed form independent elements of a crime; they are qualified under Article 17. A person is responsible for every crime.
• Banditry differs from robbery (banditry has weapons), the organization of an armed group (the purpose of creation is the persecution of citizens), a criminal community, encroachment on the lives of public or state leaders (there is no political purpose), armed rebellion, sabotage.
• The crime is especially serious.

Commentary to Art. 209 Criminal Code

1. From the point of view of the objective side of Art. 209 of the Criminal Code provides for two elements of crime. The corpus delicti contained in Part 1 is characterized by alternatively provided actions: a) creation of a gang; b) leadership of a gang. The actions of the creator (leader) of the gang, who participated in the attacks committed by it, are covered by the disposition of Part 1 of Art. 209 of the Criminal Code and additional qualifications under Part 2 of Art. 209 of the Criminal Code is not required. The corpus delicti contained in Part 2 is also characterized by alternatively provided actions: a) participation in a gang; b) participation in attacks committed by a gang. The content of the listed actions and their difference from aiding and abetting banditry is disclosed in paragraphs 8 - 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 17, 1997 No. 1 “On the practice of application by courts of legislation on liability for banditry.” The creation of a gang is recognized as a completed crime, regardless of whether the crimes it planned were committed.

2. A gang (the characteristics of which are disclosed in paragraphs 2 - 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 17, 1997 N 1) is a special type of organized group that differs from others by two constitutive characteristics: objective (armed) and subjective (special purpose , to achieve which a gang is created).

3. Qualified composition (part 3) is the same for both elements of banditry and involves the commission of banditry by a person using his official position (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 17, 1997 No. 1).

4. The commission of criminal acts by a gang that constitute independent crimes should be qualified in conjunction with Art. 209 of the Criminal Code (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 17, 1997 No. 1).

Arbitrage practice

Article 209 on banditry is often used in criminal law. This is a common occurrence.

Examples of cases in court:

1. Citizen Sh. created an armed gang to rob a bank. To do this, he found members of the organization, supplied them with weapons and planned the crime. On the appointed day, the members left to commit a crime, but in the process something went wrong, the alarm went off, and the police arrived. All gang members were detained and a case was opened. After investigation, they were produced before the court. G., as the organizer, received 10 years in prison and a fine of 300 thousand rubles, the participants received 8 years in prison.
2. The investigation spent a long time catching gang members from the city of L., who were engaged in robbing the apartments of civilians. The thefts took place at night, the victims were tied up and unable to move, and they were killed several times. Finally, the gang was detained in full force. For especially serious crimes, its leader was sentenced to 20 years in prison and a fine of 1 million rubles was paid to all victims. The remaining participants were prosecuted for crimes and given 11 years in prison.
3. Citizen V. was a member of an armed gang. Her actions were to search for victims, whom other members of the organization killed, and then removed all property from the apartments. One day V. could not withstand the moral pressure and voluntarily surrendered to the police. She betrayed all the other gang members, who were detained. V. was given 4 years in prison under the condition of mitigating circumstances, especially since she did not take part in the murders. The rest were sentenced to 20 years in prison.

What decisions are made under Article 209?

More often than not, the article makes accusatory decisions. In 2021, it handled 136 cases, of which 63 were part 2. Everyone was deprived of their freedom, and one person, who was involved in part 3, was declared insane.

What are aggravating and mitigating circumstances?

The court may increase the severity of the sentence and increase the penalties if the offender’s actions involve acts of an official nature. The punishment can be mitigated if the gang members voluntarily surrender and cooperate with the investigation.