Verdict under Article 161 Part 1 of the Criminal Code of the Russian Federation: comments. Art. 161 of the Criminal Code of the Russian Federation: robbery

What is robbery?

The development of market relations and a significant decline in the material level of many citizens negatively affect the crime situation in the country and, above all, lead to an increase in crimes related to encroachment on other people's property. This trend was noted in the mid-nineties. But even today, when the percentage of detection of such crimes, compared to the situation at the end of the last century, has increased significantly, the problem remains relevant.

Robbery is one of the acts against property, which is quite dangerous. This crime is a type of theft.

general characteristics

Before proceeding to the description of the crime prescribed in Art. 161 part 1 of the Criminal Code of the Russian Federation, it is necessary to pay attention to the question of what constitutes theft. In criminal practice, this act is understood as the illegal seizure of items of someone else’s property, which is committed solely for selfish purposes. Theft has the following characteristics:

• illegal and gratuitous seizure of property;
• turning it in favor of the accused;
• causing material damage to the owner;
• the presence of a causal connection between theft and damage.

Subjective signs of a crime:

• direct intent;
• selfish goal;
• intention to use the stolen property in the future.

Theft differs from other acts in that the mechanism of its commission involves a violation of the rights of ownership of property.

A crime is committed if the property of the victim is confiscated, and the perpetrator has the opportunity to further use it at his own discretion. But let's return to Art. 161 of the Criminal Code of the Russian Federation.

Article 161 (“Robbery”) is devoted to the definition of a crime that fully meets all the characteristics of theft. It differs from other types of this act primarily in the method of seizure of property. Robbery is characterized by specific features that indicate the level of danger. About a crime for which the offender faces up to four years in prison, Art. 161 part 1 of the Criminal Code of the Russian Federation.

Acquittal under Art. 161 of the Criminal Code of the Russian Federation left unchanged

Judge: Fedorov A.Yu.

Judge-speaker: Popova I.P. case No. 22-3664/10

CASSATION DETERMINATION

Irkutsk September 13, 2010

Judicial panel for criminal cases of the Irkutsk Regional Court, composed of the presiding judge - Judge O.V. Zhdanova,

judges: Popova I.P., Tsarieva N.A.,

with the participation of the Deputy Prosecutor ... of the district of Irkutsk O.Yu. Serebrennikov,

under secretary Bakhaev D.S.,

considered in open court on September 13, 2010, based on the report of judge I.P. Popova. criminal case according to the cassation submission of the state prosecutor Serebrennikov O.Yu. on the verdict ... of the district court of Irkutsk from the date anonymized by which

Starozhilov O.V., born Date anonymized in ..., citizen of the Russian Federation, with secondary education, unmarried, not working, disabled group 2, registered at the address: ... living at the address: ..., previously convicted:

The date was anonymized ... by the district court of Irkutsk under Part 4 of Art. 228 of the Criminal Code of the Russian Federation to 7 years of imprisonment in a maximum security correctional colony, with confiscation of property.

By the resolution ... of the district court of Irkutsk dated Date anonymized the sentence ... of the district court of Irkutsk dated Date anonymized was brought into compliance with the Federal Law of December 8, 2003 No. 162-FZ, the actions of O.V. Starozhilov. re-qualified from Part 2 of Art. 228 of the Criminal Code of the Russian Federation, the punishment was commuted to 4 years in prison to be served in a general regime correctional colony. From punishment in the form of confiscation of property Starozhilov O.V. released.

Released on November 19, 2004 after serving his sentence,

acquitted of the charge of committing a crime under Part 2 of Art. 302 of the Code of Criminal Procedure of the Russian Federation for lack of corpus delicti.

For Starozhilov O.V. the right to rehabilitation and filing a claim for compensation for property and moral damage has been recognized.

Having heard the report of judge Popova I.P., having heard the opinion of the deputy prosecutor ... of the district of Irkutsk Serebrennikov O.Yu. on the reversal of the verdict based on the arguments of the cassation submission, judicial panel

INSTALLED:

The bodies of inquiry Starozhilov O.V. was accused of committing robbery, that is, open theft of someone else's property belonging to the victim, individual entrepreneur Sh.

By the verdict of the court Starozhilov O.V. acquitted of the charge on the basis of clause 3, part 2 of art. 302 of the Code of Criminal Procedure of the Russian Federation for lack of corpus delicti.

In the cassation submission

state prosecutor Serebrennikov O.Yu. considers the sentence subject to cancellation due to the discrepancy between the court's conclusions and the actual circumstances of the criminal case and the incorrect application of the criminal law.

In support of the submission, he points out that at the court hearing it was reliably established that Starozhilov O.V. openly stole someone else's property in the amount of 282 rubles. Believes that the court unreasonably regarded this act as insignificant, falling under Part 2 of Art. 14 of the Criminal Code of the Russian Federation, since liability for open theft of property is provided only by the Criminal Law. Indicates that the circumstances of the commission by Starozhilov O.The. open theft indicate his gross disregard for property relations, which cannot but cause significant harm to social relations protected by criminal law.

According to the state prosecutor, the court’s conclusions about the insignificance of the act committed by O.V. Starozhilov. do not correspond to the actual circumstances of the criminal case established at the court hearing.

It also indicates that most crimes of minor and moderate gravity, provided for by the Criminal Code of the Russian Federation, also cause minor harm to victims, do not entail socially dangerous and grave consequences, but criminal punishment is provided for their commission. Method of committing a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation is not violent, since this is its feature that distinguishes this crime from others. Despite the fact that the damage of 282 rubles for the victim Sh. is not significant, if the person who stole the property was not identified, the amount of damage was recovered from the seller K., for whom the damage of 282 rubles, taking into account her earnings, would be significant. He believes that the court, by indicating in the verdict that the damage was insignificant for the person (victim Sh.), who has an income of 130,000 rubles, violated the principle of equality of persons who committed a crime before the law.

Believes that the fact that the victim has no complaints against the defendant and her request to forgive him, as well as a full admission of guilt and repentance for the crime, disability of group 2 and positive characteristics should be taken into account as mitigating circumstances for the punishment, but not as circumstances indicating insignificance perfect act. Draws attention to the fact that according to the description, Starozhilov O.V. at the place of residence is characterized as satisfactory, not positive.

He asks that the verdict be overturned and that the criminal case be sent for a new trial to the same court in a different composition of the court.

In objections

to the cassation presentation of the state prosecutor, the defense attorney of the acquitted Starozhilova O.V. – lawyer P.D. Zhuravlev, presenting his arguments, considers the submission to be unfounded and asks to leave the verdict unchanged.

After checking

materials of the criminal case, having discussed the arguments of the cassation submission and objections to it, the judicial panel finds the verdict legal and justified.

In accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation, an action (inaction), although formally containing signs of any act provided for by the Criminal Code of the Russian Federation, but due to its insignificance, does not pose a public danger, is not a crime.

According to the meaning of the law, the criterion for classifying an offense as a crime is the social danger of such an act, sufficient for this act to cause harm to social relations protected by criminal law.

In deciding to acquit O.V. Starozhilov, the court of first instance pointed out that the act he committed formally falls under the elements of a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation, however, due to its insignificance, it does not pose a public danger.

The court motivated its conclusion by the fact that the act committed by O.V. Starozhilov. caused minor harm to the victim, the method of committing the act is not violent, the item of theft has an insignificant value taking into account the monthly income of the victim, the fact of theft did not entail socially dangerous and serious consequences, the harm caused to the individual entrepreneur is insignificant and was compensated by the defendant, the court also took into account the opinion of the victim , information about the identity of O.V. Starozhilova. and other circumstances.

The panel of judges agrees with these conclusions and is convinced that the court of first instance correctly established and carefully analyzed the factual circumstances of the case, the verdict contains motivated judgments, according to which the court came to the conclusion that the act committed by O.V. Starozhilov. is insignificant.

In this criminal case, the inquiry authorities have not established or provided evidence that by the actions of O.V. Starozhilov. significant harm was caused to public relations protected by criminal law, and his actions resulted in grave consequences. That is, no measures were taken to establish the social danger of what O.V. Starozhilov did.

Contrary to the arguments of the cassation presentation, the formal coincidence of the signs committed by O.V. Starozhilov. acts with signs of a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation in this case, taking into account the fact that the act did not cause significant harm to social relations protected by criminal law, does not indicate that this act is a crime for the commission of which Starozhilov O.V. must bear criminal liability.

In this regard, the court of first instance came to a reasonable conclusion about the absence of O.V. Starozhilov’s act. corpus delicti, and made the right decision to acquit him of the charges brought in accordance with paragraph 2 of part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation.

The court's conclusions about the insignificance of the act committed by O.V. Starozhilov are based on a study and proper assessment of the entire body of evidence obtained by the bodies of inquiry, are fully consistent with the factual circumstances of the case established at the court hearing and do not contradict them.

In itself, the method of open theft of property, without taking into account other circumstances of the case, cannot be recognized as a basis indicating the impossibility of recognizing the act as insignificant.

The state prosecutor's statement that most crimes of minor and medium gravity, provided for by the Criminal Code of the Russian Federation, also cause minor harm to victims, do not entail socially dangerous and grave consequences, but criminal punishment is provided for their commission, is untenable. Since the appealed court verdict took place in a specific criminal case and in relation to the factual circumstances that were established during its consideration.

The state prosecutor's reference to the fact that if the person who stole the property had not been identified, the amount of damage would have been recovered from the store seller, for whom the damage of 282 rubles, taking into account her earnings, would have been significant, cannot be recognized by the judicial panel as a basis for overturning the verdict , since it contradicts the provisions of Art. 252 of the Code of Criminal Procedure of the Russian Federation on the limits of judicial proceedings.

The judicial panel does not see any violation of the principle of equality of persons who have committed a crime before the law in connection with the court's indication of the insignificance of damage to the victim, who has an income of 130,000 rubles, as indicated in the cassation presentation.

The fact that the victim has no claims against the defendant and her request to forgive him, as well as the full confession of O.V. Starozhilov guilt and repentance for the deed, disability of the 2nd group and positive characteristics, were taken into account by the court along with the nature and circumstances of the committed act, the absence of serious consequences, compensation for harm to the victim, which together allowed the court to come to the conclusion that the crime committed by O.V. Starozhilov was insignificant. deeds. Therefore, the arguments of the cassation submission in this part are also recognized by the judicial panel as untenable.

The court's indication in the verdict is that Starozhilov O.V. at the place of residence is characterized positively, whereas according to the characteristics available in the case materials, it is characterized satisfactorily, is not a significant violation, and is not a basis for canceling or changing the sentence.

Under such circumstances, the cassation submission of the state prosecutor cannot be satisfied. The judicial panel does not find any procedural violations that influenced or could influence the rendering of a legal, reasonable and fair sentence, entailing the unconditional reversal of the sentence.

Based on the above and guided by Art. Art. 377, 378, 388 Code of Criminal Procedure of the Russian Federation, judicial board

DEFINED:

The verdict ... of the district court of Irkutsk from the date is anonymized. in relation to Starozhilov O.V. left unchanged, and the cassation submission of the state prosecutor - without satisfaction.

Chairman: O.V. Zhdanova

Judges: I.P. Popova

ON THE. Tsarieva

Comments

The Criminal Code states that this act is open theft. It is done without violence. If violent methods are still used, they are not dangerous to the life of the victim.

The peculiarity of the act under Part 1 of Art. 161 of the Criminal Code of the Russian Federation (“Robbery”), as already mentioned, is an open form. It is committed in the presence of the victim or other witnesses. At the same time, you should know that only those actions in which the perpetrator is aware of this fact can be considered open theft, that is, he understands that the actions he performs are carried out in the presence of other persons.

What conclusion should be drawn from all of the above? Robbery is the actions of a criminal aimed at suddenly taking possession of another person’s property, which is usually committed in a public place. A typical example is when a criminal suddenly snatches a passerby's bag, mobile phone or any other valuable item. In this case, bodily harm is not intentionally caused to the victim, and if this happens, it is completely accidental, due to the specificity of this unlawful act.

Was there violence or not? Verdict under clause “d”, part 2 of Art. 161 of the Criminal Code of the Russian Federation.

Dear colleagues, I want to share my practice with you, perhaps someone has had a similar criminal case, I will respectfully listen to criticism and advice that will help in the cassation court.

In December 2021 The father of the defendant M. contacted me, and as a result of the conversation an agreement was concluded. The criminal case was already at the stage of consideration in court, or rather, I had already entered the stage of debate.

In February 2021 The Zavodskoy District Court of Kemerovo, having considered in open court a criminal case against M, accused of committing a crime under paragraph “g” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation, found M. guilty of committing a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation and sentenced him to imprisonment for a period of 1 year 6 months.

Based on Part 4 of Art. 74 of the Criminal Code of the Russian Federation, the suspended sentence assigned to M. According to the previous sentence was cancelled.

In accordance with Art. 70 of the Criminal Code of the Russian Federation, according to the totality of sentences by partially adding the unserved part of the sentence by the sentence of the Central District Court of Kemerovo to the newly imposed punishment, a final sentence of imprisonment for a term of 6 years was imposed, with the serving of the assigned sentence in a general regime correctional colony.

Briefly about the crime.

In the evening, two young men meet on the street. During the conversation, a small conflict arises between them; M. takes P.’s mobile phone. As follows from the materials of the preliminary investigation, M., while taking the phone, struck P. twice with his palm in the face .

In a court…

At the stage of the trial, the victim P. confirmed the reliability of his testimony, except for the testimony regarding the infliction of two blows to his face with a palm , and explained that he slandered M. in this part because of the anger he had against M.

The court of first instance did not agree with the classification of the crime proposed by the prosecution, taking into account the testimony of the victim P. in court and at sentencing, the crime was reclassified under Part 1 of Art. 161 Code of Criminal Procedure of the Russian Federation.

It would seem that everything ends well, but the suspended sentence was canceled and a sentence of imprisonment for a term of 6 years was finally imposed. After a conversation with the client in the pre-trial detention center, it was decided to appeal the verdict in terms of sentencing.

Appeal…

Having checked the materials of the criminal case, having discussed the arguments of the appeal and the appeal, the Judicial Collegium for Criminal Cases of the Kemerovo Regional Court overturned the verdict and ruled a new conviction, finding M. guilty of committing a crime under paragraph “d”, part 2 of Art. 161 of the Code of Criminal Procedure of the Russian Federation, imposing a sentence of 7 years in prison, to be served in a general regime colony.

What happens is that the victim says “there was no violence,” and the court “there was no violence!” . In my opinion, for qualification under paragraph “d”, part 2 of Art. 161 of the Code of Criminal Procedure of the Russian Federation, it is important what the victim says, but it turns out that it is not, the court decides how it really happened. In some situations, of course, yes, but not in terms of the use of violence.....

In conclusion, I want to say that I cannot agree with the appeal verdict and here our position with the client M. is the same. And as I said above, I will be grateful for both criticism and advice that will help in preparing the cassation appeal.

Qualification

Often those present do not notice the theft. Sometimes, observing these actions, they consider them legitimate. This is what the culprit is counting on. In such a case, theft is not recognized as open, and therefore is not robbery. If the culprit took possession of someone else’s property, but when committing these actions believed that there were no witnesses to the crime, then, regardless of whether there were any, such a crime is already regarded as theft.

As we can see, a person who has committed theft, subject to a number of conditions, can be charged under Art. 161 part 1 of the Criminal Code of the Russian Federation.

Heaviness

Article 161 includes three parts. An ordinary robbery that does not entail negative consequences for the health of the victim is classified as a crime of moderate gravity. It is stated in the first part of the above article. For committing this crime, the perpetrator faces a fine. In the worst case scenario, the court will appoint, on the basis of Art. 161 part 1 of the Criminal Code of the Russian Federation, punishment in the form of imprisonment for four years.

The second part of Article 161 is devoted to an act that is not just open theft, but can also be accompanied by the following actions:

• illegal entry into a home;
• use of violence;
• theft of property on a large scale.

Such acts are classified as serious. If proven guilty of committing a crime referred to in Art. 161 part 1 of the Criminal Code of the Russian Federation, the term of imprisonment will not exceed four years. For criminals who commit robbery by breaking into someone else's apartment or using violent methods, the punishment will be somewhat more severe. The defendant can spend seven years in prison and pay a small fine.

The third part of Article 161 describes a crime that is committed by a group of persons and is open theft on a large scale. It belongs to the category of acts that are usually called particularly grave. The punishment for it is also more severe than for the crime provided for in Art. 161 part 1 of the Criminal Code of the Russian Federation. The court's verdict may be as follows: punishment in the form of imprisonment for up to five years or a fine of up to one million rubles.

Practice under Art. 161 part 2 of the Criminal Code of the Russian Federation (preliminary investigation stage)

Dear readers!

It's no secret that investigators, when appointing defense attorneys in accordance with Art. 51 of the Code of Criminal Procedure of the Russian Federation, often openly offer cooperation, which, in their opinion, is usually understood as inducing the defendant to a full confession of guilt, accompanied by a version of the testimony that fits into their presentation, contained in the resolutions on initiating a criminal case, on implicating them as an accused and in an indictment conclusion.

By participating in the provision of free legal assistance, I prefer the defense of suspects and accused. Having familiarized myself with the available materials after entering into the case, I explain to the client what a lawyer is and what they eat in Moscow (appointment procedure, the myth of the “state” lawyer, etc.) and share my thoughts with the client in private before the first procedural action .

Not always, not all trustees and not everything “catch up”. It's not scary, because... it is possible to catch up during investigative actions. It’s another matter when the principal makes it known that he doesn’t need anyone, incl. and a lawyer. This kind of thing stresses me out, because you feel like you’re superfluous in this matter. Although, of course, you do what you consider necessary for protection purposes.

Having the opportunity to select applications in the chamber’s automated system, I try to find “problematic” cases, since it is not very interesting to participate in non-problematic cases (where you are not needed). This search is similar to fortune telling, but the probability of getting to where you are needed is slightly higher. There are often certain categories of orders at work, which simplifies protection.

This year he participated in 7 cases of robbery (Article 161 of the Criminal Code of the Russian Federation) at the investigation stage. Only one case was initially entered into by agreement. For two more, the principals asked for a conclusion even before the start of the proceedings.

Six principals were detained, five were released, incl. The courts refused to take two of them into custody. On the third, the court returned the petition to the investigator after a 72-hour extension of detention (and this happens in the capital). The court released the fourth under a ban on certain actions at the end of the ninth month, the fifth was and remains at large, but the sixth could not be defended and he ended up in custody due to foreign citizenship and, apparently, will remain there until the verdict. The seventh refused my help after losing the appeal, which upheld his detention, but a couple of days later the court changed his preventive measure to house arrest.

This is a kind of statistics.

When I compare these cases, the only thing they have in common is that all the principals are 18-25 years old and have no criminal record. 1 serves, 3 work, 1 studies, and 2 are idle.

The approaches of the courts in similar cases are diametrically opposed. In particular, two cases involve foreigners. The damage is several hundred rubles in each case. In both cases, the signs of robbery are questionable. But if one judge refuses to satisfy the nonsense with which the investigator came to him, and even rewards the latter with a private trader, the second only had enough foreignness to write two pages of a guardian’s order.

Complaints? Yes, except for the case of which I will give the first example.

In the fourth month of detention, I was found and persuaded to participate in the investigation into the case of three young people who, in one of the cities near Moscow, had stolen alcohol from a chain store, from which two escaped with the potion, and the third was caught. Then there is a conflict, a police chase, and being caught red-handed.

The principal is 25 years old, has no criminal record, does not work, does not study, is not married, has no children, is not registered and, in general, wherever you point, everything is empty. He just always smiles.

- I see you’re having fun in custody?

- We feed, water, sleep, breathe. You can tolerate it.

“I’m afraid I’ll have to endure it for more than one month.”

- Yes, to hell with it.

- With what?

- Happy month.

So we talked. Lasted as always. The one who entered into the agreement with me disappeared, and the principal refused to appeal the extension or the progress of the investigation. The fact is that he and his friends in the car during the arrest seized another fifty bottles of poison, the origin of which the investigation was not officially interested in, and we kept silent so as not to wake up the beast (the pros understand what kind it is).

The next time was also boring.

When, after 6 months of detention, the time came to prove the particular complexity of the case, I decided to give the investigator something like a public flogging. I study the material: the horse did not lie down. That is, they didn’t do anything for 6 months! What should I do? The usual go-stop, a whole volume was collected in the first few days, there is enough texture, why are we delaying? What law provides for “harmat collection” as a procedural action? Why are the objects of attack in the case 6 bottles of poison, and the investigation considers it necessary to examine fifty others?

To these and other questions, the investigator answered that everything is not so simple, an investigation is underway, the criminal investigation department is puzzled, it is necessary to examine the seized items using forensic equipment, conduct a number of complex examinations, and so on. In general, the matter of the century! The court decided that a couple of examinations were still worth conducting, and examining the confiscated property is useful because it sometimes forces you to use your brain. Of course, extend it!

The investigators/courts planned each extension of detention in such a way that, in relation to my client, the investigator’s petition was considered in third place on the day after the others were satisfied. This involuntarily put pressure on us, although such a feeling should be alien to a lawyer.

By this time, the court had already sent the third private party to the head of the investigative agency. My colleague, who defended the client’s accomplice, twice got the prosecutor to submit representations demanding that the red tape be brought to disciplinary liability.

Two investigators investigating the case quit, the third turned out to be sick (in reality, always with a cold or Covid, I still don’t understand) and very incompetent (like some of those who remained in the service, which was staffed at half the rate). This miracle of domestic investigation stunned me with its very first call: Your smiling ward staged a riot in the pre-trial detention center, many were placed in “freeze”, we managed to drag him out to the temporary detention facility. Come, if you do everything as needed, then... this won’t add anything to my lawyer’s pocket))).

Yeah, it's overclocked.

Of course, he did not arrive immediately and not the next day. I see M. is still smiling.

- Rebeled? Have you decided to confess? Have you taken on anything else?

- What are you talking about?! Yes, I wish...

“I see, that means everything is as before.”

In a word, gradually gaining tension with the investigation, we came to the next extension - up to 9 months.

The need to extend the custody in the petition was justified by the desire to be notified, familiarized and sent to the prosecutor with the indictment. The female investigator turned out to be completely unprepared and, when asked by the defense attorney, explained the need for an extension by saying that the defense attorney (!) was not fulfilling his duties and was not helping the investigation collect the harmat.

You may not believe it, but my client, upon hearing this “something,” burst into tears (by the way, out of a habit that I personally could not overcome in him during my cooperation)! True, the judge, a strict lady, immediately besieged him.

I couldn’t say anything, but I couldn’t close my mouth either! What surprised me was not the investigator, but the complete equanimity of one of my former colleagues in a blue uniform, opposite me, for whom the sight of her multi-colored claws was clearly more important.

Dear readers! Of course, I already knew by that time that two accomplices, whose defenders came to the rescue and presented to the court statements, consents of the owners, their passports, extracts from Rosreestr for the apartments where the accused intended to live, and other waste paper, other judges refused to keep further in Pre-trial detention center and kicked out under house arrest. But for the HF, in unison with the investigator, to attack the lawyer... I could not have predicted this.

— Defender, what have you been doing all these 5 months in the case?

- HF, you know, I defended Mr. M.

— He says that he officially works at Dixie in the University metro area. What, they couldn’t get a certificate? He said that his relative (who, by the way, disappeared) lives in Ramenki. Is it difficult to invite him to write a statement with a request and consent for M. to live with him?

- Let me take 51st.

- (in unison, together with the prosecutor) Do you want to help your client?

— HF and respected former colleague! That's all I do. I don't want Mr. M. to be under house arrest.

— ???????????????

- You see... in general, it’s hard to explain all this... and home arrest is not a pleasant thing. In general, M. and I conferred and decided that domarrest was not for us, but we would like something softer! For example, prohibiting certain actions. This is in the power of the court, if I'm not mistaken? And, by the way, no one can charge me with anything other than protection. But how to implement it is up to me and the trustee.

- Investigator?

- He will run away, hide, contact his accomplices and continue his criminal activities, there is no reason to release him.

- What does the prosecutor think about all this?

- VC, M. does not have registration in Moscow and the region, so there is no reason to change the preventive measure.

I had to remind you that “he will hide and continue” needs to be proven, and the prosecution did not bother to at least try to do this for 8 months. If a person does not have registration in Moscow and the region, this does not at all indicate that he does not have the opportunity to live in this region. After all, he lived for two years before his arrest, which is confirmed by the testimony of his accomplices and other persons. And at what address to impose bans, this is unnecessary, because the law does not dictate the mandatory registration for this measure of restraint.

HF did not sit in the deliberation room for a long time.

— To refuse the investigator’s request, to satisfy the defense lawyer’s request, to elect a ban on certain actions at the place of residence (no matter which one). True, in the text of the resolution, the HC for some reason decided to indicate that the prosecutor asked to change the preventive measure to do-arrest or a ban on certain actions. I don’t know for what reason, and it probably doesn’t matter.

We leave the hall, and there... Who do you think could have expected M.’s trial to end? That's right, his accomplices. Those who were allegedly under arrest and for whom this measure was subsequently also changed to prohibit certain actions.

Soon an acquaintance with the already completely boring case took place, it went to court and, as expected, ended with a suspended sentence. But that was already without me.

Temporary possession of property

In criminal practice there are cases of open theft, which, however, cannot be qualified as robbery. If a person has taken possession of someone else’s property, but did so without the intention of further use, then the prosecutor in court cannot refer to Article 161.

An example would be the following situation. Let's say a certain citizen returns home in the evening with his wife, who is in late pregnancy. A woman suddenly goes into labor, and in order to get to the hospital, a citizen tries to stop the car. But he fails to do this for a long time. None of the cars passing by stop. When this can be done, the driver declares, for example, that he is going in the other direction and refuses to help the couple. Then the citizen forcibly pulls him out of the car and goes with his wife to the maternity hospital. This conditional person committed open theft, but his actions cannot be qualified as the act discussed in this article.

Causing violence

The second part of the criminal article that we are considering contains conditions that qualify the crime as robbery. One of them is infliction of violence that does not pose a danger to the physical health of the victim. How can we determine whether the physical impact that a criminal has on a person poses a significant threat? Real harm to health is confirmed by the following signs:

• permanent disability;
• physical pain;
• restriction of freedom.

If the harm to health is characterized by minor bodily injuries, then the violence that the offender inflicted during the attack is defined as “violence that is not life-threatening.”

Part 2 Art. 161 of the Criminal Code of the Russian Federation Suspended court sentence for a period of three years | Arbitrage practice

Home >> Court decisions in criminal cases >> Part 2 of Art. 161 of the Criminal Code of the Russian Federation Suspended court sentence for a period of three years | Arbitrage practice

Court decisions in criminal cases Criminal lawyer in Moscow South-Western Administrative District

VERDICT IN THE NAME OF THE RUSSIAN FEDERATION

Moscow June 04, 2014 Golovinsky District Court of Moscow composed of: presiding judge V.I. Lobochkina, with secretary V.I. Vasin, with the participation of the state prosecutor - assistant Golovinsky interdistrict prosecutor of Moscow N.V. Dashkovskaya, defendants Bychkova FULL NAME10, Bychkov FULL NAME11, defenders - lawyer Mishchenko O.Yu., who provided certificate No. and warrant No., lawyer Nazarova T.P., who provided certificate No. and warrant No., having considered in open court a criminal case against: Bychkova FULL NAME10, <data seized>, accused of committing a crime under paragraph. “a,d” part 2 of article 161 of the Criminal Code of the Russian Federation; Bychkova FULL NAME11, <data taken>, accused of committing a crime under paragraph. “a, g” part 2 of article 161 of the Criminal Code of the Russian Federation, ESTABLISHED: Bychkov I.V. and Bychkov I.V. committed robbery, that is, the open theft of someone else's property, committed by a group of persons by prior conspiracy, with the use of violence not dangerous to life and health, namely: on December 29, 2013, at a time and place not determined by the investigation, having entered into a preliminary criminal conspiracy among themselves, aimed at stealing someone else's property, realizing their criminal intent, together at 23:30 on December 29, 2013 they arrived at the territory of the construction base located at the address: Moscow, Levoberezhnaya St., 6 "A", after which they were in in the cabin at the above address, together they approached V.Yu. Demkin. and in order to suppress the will of the victim to resist, using violence not dangerous to life and health, they inflicted on Demkin V.Yu. at least 3 blows with hands and feet to various parts of the body, causing the latter through joint actions physical pain and bodily injuries in the form of paraorbital (periorbital) hematomas of the right and left eyes, subcutaneous hematoma of the lower third of the left shoulder, abrasions of the right and left shoulder, nose (not specified exact number), two wounds that did not require surgical sutures in the area of ​​the lower lip, in the area of ​​the right eyebrow, which did not entail a short-term health disorder or a slight permanent loss of general ability to work and are therefore regarded as injuries that did not cause harm to health, after which it is open stole a Samsung GT-E1080i mobile phone lying on the table in the above-mentioned cabin, belonging to V.Yu. Demkin, worth 1000 rubles, with a SIM card installed in it for the cellular operator "MTS" worth 150 rubles, with funds in the account in the amount of 300 rubles and openly stole funds in the amount of 8,300 rubles from a wallet in the desk drawer of the above-mentioned cabin, after which, together with the stolen property, they fled from the scene of the crime, causing their actions to Demkin V.Yu. the specified bodily injuries and material damage totaling 9,750 rubles. Defendants Bychkov I.V. and Bychkov I.V. agreed with the charge brought against them and the civil claim filed in the case, voluntarily and after consultation with the defense, filing a petition for a verdict without a trial, realizing the nature and consequences of filing such a petition, which the court, with the consent of the public prosecutor and the victim Demkin V.Yu. , was satisfied. The accusation with which the defendants Bychkov I.V. agreed. and Bychkov I.V., justified and supported by evidence collected in the criminal case. Actions of the defendants Bychkova I.V. and Bychkova I.V. the court qualifies according to paragraphs. “a,d” part 2 of article 161 of the Criminal Code of the Russian Federation as robbery, that is, the open theft of someone else’s property, committed by a group of persons by prior conspiracy, with the use of violence that is not dangerous to life and health. When appointing Bychkov I.V. as defendant and Bychkov I.V. punishment, the court takes into account the nature and degree of public danger of the crime they committed, information about the identity of the perpetrators and the circumstances of the case, the role and degree of participation of everyone in the commission of a group crime. Bychkov FULL NAME10 has no previous convictions, has fully admitted his guilt and repented of his deeds, is not registered with a narcologist or psychiatrist, is described satisfactorily at his place of residence, works, and according to the defendant, served in the North Caucasus region. Availability of the defendant I.V. Bychkov as a dependent. a young child in accordance with clause “g”, part 1 of article 61 of the Criminal Code of the Russian Federation is a circumstance mitigating his punishment. The court did not establish any circumstances aggravating the punishment of the defendant Bychkov I.V. Bychkov FULL NAME11 has no previous convictions, has fully admitted his guilt and repented of his deeds, is not registered with a narcologist or psychiatrist, is described satisfactorily at his place of residence, works, has a dependent young child, which is in accordance with paragraph “d” of Part 1 Article 61 of the Criminal Code of the Russian Federation is a circumstance mitigating his punishment. The court did not establish any circumstances aggravating the punishment of the defendant Bychkov I.V. Assessing these circumstances in their totality, and taking into account the impact of the imposed punishment on the correction of convicts and on the living conditions of their families, in order to prevent them from committing new crimes, the court is convinced that the correction of the defendants Bychkova I.V. and Bychkova I.V. it is possible to carry out in conditions not related to actual deprivation of liberty, using Article 73 of the Criminal Code of the Russian Federation when assigning punishment. At the same time, the court considers it possible not to apply I.V. to Bychkov. and Bychkov I.V. additional punishment in the form of a fine and restriction of freedom. Taking into account the actual circumstances of the crime and the degree of its public danger, the court sees no reason to change the category of the crime to a less serious one. Declared by the victim Demkin V.Yu. The court finds a civil claim for compensation for material damage caused as a result of a crime to be justified and subject to satisfaction in full. Based on the aforesaid and guided by Article. 316 of the Code of Criminal Procedure of the Russian Federation, the court SENTENCED: To find Bychkov FULL NAME10 guilty of committing a crime under paragraphs. “a,d” part 2 of Article 161 of the Criminal Code of the Russian Federation, and sentence him to imprisonment for a period of 2 (Two) years. Based on Art. 73 of the Criminal Code of the Russian Federation, the punishment assigned to Bychkov FULL NAME10 is considered suspended, with a probationary period of 3 (Three) years. To assign to Bychkov FULL NAME10 the obligation to continue to work during the probationary period, periodically, at least once a month, to appear for registration with a specialized state body that monitors the behavior of the probationer. Find Bychkov FULL NAME11 guilty of committing a crime under paragraph. “a,d” part 2 of Article 161 of the Criminal Code of the Russian Federation, and sentence him to imprisonment for a period of 2 (Two) years 6 (Six) months. Based on Art. 73 of the Criminal Code of the Russian Federation, the punishment assigned to Bychkov FULL NAME11 shall be considered suspended, with a probationary period of 3 (Three) years. To assign to Bychkov FULL NAME11 the obligation to continue to work during the probationary period, periodically, at least once a month, to appear for registration with a specialized state body that monitors the behavior of the probationer. Preventive measure until the sentence comes into force for Bychkov I.V. and Bychkov I.V. leave unchanged - a written undertaking not to leave the place and proper behavior for everyone. Civil claim filed by the victim Demkin V.Yu. – satisfy, collect jointly and severally from Bychkov Ivan Viktorovich and Bychkov FULL NAME11 in favor of Demkin FULL NAME22 9,750 rubles in compensation for material damage caused by the crime. The verdict can be appealed on appeal to the Moscow City Court within 10 days from the date of pronouncement of the verdict, in compliance with the requirements of Article 317 of the Code of Criminal Procedure of the Russian Federation. If an appeal is filed by the convicted persons themselves or by other participants in the process, they have the right to petition for their participation in the consideration of the criminal case by the appellate court, indicating this in the complaint itself, or in a separate petition, as well as in the filed objections to the received complaints and submissions within the same period.

Signs

Robbery is a crime that is classified as an act of varying severity. This level can be determined using the following signs:

• size of the stolen item;
• repetition of the act;
• prior conspiracy;
• home penetration;
• causing serious bodily harm.

A crime by prior conspiracy is one that was planned before it was committed. Participation in the open theft of a group of people moves this illegal action into the category of more serious acts. Accordingly, it adds several years to the term of imprisonment of each of the participants.

Repeatedness is a sign that says that before the crime was committed, the perpetrator or a group of them had already taken similar actions. But if the accused has not previously been prosecuted, in the judicial process his actions are considered as a set of crimes.

Burglary is the secret entry into a home for the purpose of stealing property. If the accused committed theft in the victim’s house, but ended up in it by his own will, he cannot be prosecuted under Article 161. In court, his case will be considered on the basis of a criminal article of theft.

Finally, what is significant damage? This phrase is a very relative concept. In each individual case, determining the level of damage depends on the court's decision. But, as a rule, it is based on the average income of the victim.

Among the legislative norms that are relevant to the qualification of this crime, from the point of view of many theoretical and practical workers, a clearer distinction is required between such concepts as non-dangerous and dangerous violence, significant and minor damage.

Acquittal in a robbery case - Article 161, Part 2, paragraph 2. “a, g” of the Criminal Code of the Russian Federation

On one of the usual summer evenings, Andrei K. was sitting on a bench with his friends near the house when an unfamiliar girl approached them and began talking to her friend. During the conversation, the girl, as if as a joke, began to point first at one guy, saying that he had robbed her, then at the second, and then said the same thing about K. Everyone laughed, since the girl was drunk and soon began to forget about this conversation, but soon Andrey was no longer laughing.

A few days later, officers from the Leninsky District Department of Internal Affairs approached them, took K. and brought him to the department. As it later turned out, the victim’s brother worked in the same territorial department of the Ministry of Internal Affairs. There K. was announced that he had been detained for committing a robbery against Ms. Vladimirova in a group of people. Then the usual procedures began: interrogation, detention in a temporary detention facility, arrest and detention in a pre-trial detention center.

His explanations that he had not committed any robbery and knew nothing about it were not perceived and were, as usual, interpreted as a way to avoid deserved criminal liability. After his relatives contacted me, I began to defend myself.

1. Defense during the preliminary investigation

The more I learned about K., his biography, character, way of life, and communicated with him personally, the more I became convinced that he was not lying, that he was really not involved in this crime.

Well, his lifestyle didn’t fit in with the nighttime cell phone robbery he was accused of!

K. was characterized exclusively on the positive side, both at his place of work, and at his place of study and place of residence. I am not inclined to commit crimes, have no previous convictions, and have never been brought to criminal or administrative liability. He studies at a university, works as a driver for the rector of his university, has a regular income, lives with his family - his parents, and is financially sufficiently secure.

On July 1, 2004, Andrei K. was on a business trip, driving the rector’s official car to Moscow, driving a total of 900 km in one day. In the evening, very tired, I came home, went to bed at 12 am, and accordingly did not go out anywhere at night. On the morning of July 2, I got ready and already at 9.00. was at work again. His actual alibi was confirmed by the testimony of witnesses: his parents - father, mother, sister, neighbor Ledneva, who came to see them late in the evening.

The robbery for which he was accused occurred on July 2 at 4.30 am.

The charges are based on the non-procedural “identification” of K. on the street by the victim E.V. Vladimirova. as a criminal who attacked her together with another person, and her testimony about this and about the attack.

At the same time, as follows from the testimony of K. himself, as well as the testimony of witnesses Katkova, Sharkov, Ilyin, Khaminsky and others, and the victim Vladimirova herself, she did not immediately point to him, but first pointed to other persons present: Sharkov, Khaminsky and stated that they also look like robbers.

From the testimony of Katkova O.V. - Vladimirova’s friend, with whom they both approached the guys sitting on the bench, it followed that she told her at first after communicating with the guys that she was not sure that Andrei K. was a robber. But a few days later she suddenly began to insist that it was he who attacked her.

Katkova also testified that Vladimirova asked her to give biased testimony about the case: about communication with the guys and her behavior, including saying that she immediately pointed to K., and not third in a row.

It would seem that everything is quite obvious - a mistake occurred, an innocent person was brought in, we just need to release him from custody and apologize.

But it was not there! There was a feeling of a thick concrete wall, from which all the seemingly clear and obvious arguments were bouncing off like balls.

The position of the investigation against the defense's arguments looked something like this.

The testimony of relatives and neighbors is, of course, an attempt to shield the criminal.

The fact that Andrey was not found with a stolen phone, but has his own good phone, is also not an argument, it means he got rid of the stolen one.

The fact that he receives a scholarship as a student and also a salary as the rector’s driver, that is, he is financially well-off, is also not an argument for the investigation.

The fact that the victim, being drunk, first pointed to one guy, then to the second, and only after that to K., is quite understandable - after all, now she insists that it was he who robbed her.

The fact that the second attacker has not been identified is due to the fact that K. brazenly hides his identity from the investigation.

Months passed, I filed numerous complaints and petitions, but nothing brought any results.

The investigation was happy with everything: the culprit (one of the two) was identified, arrested by the court - and therefore is legally in custody.

2. First progress on the case

Finally, I managed to achieve satisfaction of one of my petitions: through imey, through the mobile operator companies, take measures to find the stolen phone.

Apparently, the investigation decided to try to find the second attacker in this way.

This led to the first change in the situation in the case. The victim’s phone was found with the sister of a young man, E., who allowed her to use it.

As E. himself testified, he purchased the phone from buyers at the Kolkhoz Market, who sell second-hand phones. His testimony was fully confirmed by his workmate Khokhlov, who was with him at the time of the purchase.

But the logic of the authorities is simple to the point of impossibility: since you have a stolen phone, that means you are a criminal.

E. was presented for official identification by the victim, and she, as one might assume, recognized him as the second robber!

Then everything follows the same pattern: detention, accusation and arrest by the court. E. quickly ended up in the same pre-trial detention center as my client.

Subsequently, both accused, due to the protracted period of the investigation (more than 9 months), had their preventive measure changed to a written undertaking not to leave the place.

So, a group of robbers has been identified, the investigation has everything in order, K. and E. were finally charged as committing a crime by a group of persons jointly and by prior conspiracy.

But the most interesting thing began after that!

I drew the investigator’s attention to the fact that my client K. had never known the second accused E., with whom, according to the investigation, they met at night and together committed a serious crime.

K. and E. are of different ages, live in different areas of the city, have never studied or worked together, have never met, etc. Each of them has their own constant social circle.

The investigation checked my arguments, including taking printouts of telephone connections on the SIM cards of both accused, and could not find a single fact confirming their acquaintance.

An official certificate from the criminal investigation department of the Leninsky District Department of Internal Affairs was even attached to the case, stating that the fact of acquaintance between K. and E. had not been established.

I turned to the prosecutor of the Leninsky district, L.K. Zhuchkov, who promised to look into the situation, and for this he even invited the victim Vladimirova to a personal conversation. But, as it turned out later, the prosecutor “believed” her, since the victim insisted that she recognized both defendants and was sure that the two of them attacked her.

Despite the glaring circumstance that the accused do not know each other, and other defense arguments, nothing has changed. Investigator S.A. Shchurova stubbornly continued to do her work, and the case in this form soon came to court for consideration on the merits.

3. Judicial investigation

During the trial, I decided to more carefully examine the question of what glasses the victim was wearing, what happened to them at the time of the attack, whether she observed what was happening through or without glasses. At my request, the court ordered Vladimirova to bring for examination the glasses she was wearing at the time of the attack on her, since it turned out that she was already wearing other glasses, as well as prescriptions for them.

It turned out the following: the victim has rather poor vision - minus 4 in both eyes. When she was pushed in the back from behind and she fell to the ground, the glasses flew off her face and one lens broke, and was also damaged - the frame of the frame broke. After that, the attacking robber turned her over on her back, tore the phone hanging from her neck from her neck, took her purse from her shoulder, after which he and the second attacker immediately ran away with the stolen goods. That is, the victim, being in a state of shock from a sudden push and fall, could observe one of the robbers for just a few seconds without glasses on her face. One was approximately 1 meter away, and the second was 2-3 meters away, since the second one was standing nearby, but did not approach her. All this happened early in the morning, at 4.30, before dawn and in a poorly lit place.

Serious doubts arose that Vladimirova, under such circumstances and with her vision, could even see and remember anything.

But the victim firmly stood her ground that she recognized K. and identified E. and was sure that the two of them robbed her.

And the words of the victim are, as usual, the main evidence for the prosecution and the judge in such cases.

The trial lasted more than six months, there were many hearings, but the case inexorably continued to move towards its usual ending - a guilty verdict. Arguments such as that the defendants could not have committed a group crime because they did not know each other, and that the victim could hardly have seen anyone under the circumstances and then identified them, continued to be ignored.

4. The ice has broken

But, finally, one day, December 21, a turning point occurred in the consideration of the case.

After a detailed study of the evidence from the defense, when I went through hour by hour how K.’s day passed on the eve of the robbery, characterizing information: lifestyle, his personality, financial situation, I asked the victim Vladimirova one question.

I asked her, after everything she had heard, if she had any doubts about K., whether he really committed her robbery?

And then... suddenly the victim said yes! She doubts that it was him, K. just looks like the one who attacked her.

At that moment I looked at the state prosecutor - the assistant prosecutor was slowly sliding out of her chair. She was clearly shocked by the victim’s response.

Then Vladimirova was asked about the second defendant, but here she continued to insist that she identified him correctly.

The next court hearing, as one might have expected, began with a new statement from the victim.

She went to the podium and began to read from a sheet of paper a text written, most likely in the prosecutor's office. She stumbled when pronouncing unusual words and terms, but read it to the end. The essence of the text was as follows. After the previous meeting, she thought about everything again and decided that after all, K. also participated in her robbery, and now she is absolutely sure of this and insists on it.

But despite this denial, there was a tangible feeling that the ice had broken!

Why did the victim answer this way at the meeting on December 21? Probably because conscience lives deep in every person. Vladimirova understood (or knew) that there was an absolutely innocent person in the dock, and could not say otherwise at that moment.

During the debate, the prosecutor asked for real sentences for both defendants for committing robbery by prior conspiracy by a group of people. At the same time, she was not embarrassed by the fact that the fact that the defendants knew each other was never established!

Judge Shtykova N.G. rendered its verdict.

K. acquitted due to non-involvement in the crime committed.

E. impose a suspended sentence of 3 years in prison.

Exactly 17 months passed from the moment of K.’s arrest until the verdict.

The verdict came into force.