Art. 35 of the Criminal Code of the Russian Federation Committing a crime by a group of persons, by a group of persons by prior conspiracy. Arbitrage practice

When investigating acts committed by several persons, the most important issue is the division of complicity of subjects into forms. The criterion for such division is the moment of occurrence of the conspiracy. Accordingly, co-execution may be subject to a preliminary agreement or carried out without it. The features of these forms of complicity are revealed in Art. 35 of the Criminal Code. Let's consider its provisions.

Forms of conspiracy

As established in Part 1 of Art. 35 of the Criminal Code, a group of persons is considered to be involved in an act if 2 or more perpetrators participated in the commission, and there was no prior agreement between them. If there was a conspiracy of joint illegal actions, then they are recognized as committed by a group of persons by prior conspiracy. This form of complicity is established by Part 2 of Art. 35 of the Criminal Code.

An organized group is a stable group of people who have united in advance to commit an unlawful act or several attacks. A criminal organization (community) is a structured group (association of groups), whose members are under a single leadership and united to commit serious/especially serious acts in order to obtain direct or indirect material (including financial) benefits.

“Success fee” and legal expenses of a third party: practice of the Moscow District Court

Legal costs for interest

Dmitry Sorokin wanted to send a letter through the National Postal Service (legal entity - IDEM Group LLC). But the company employees did not put a dispatch date on the envelope. Sorokin turned to the Office of Roskomnadzor for the Central Federal District, and officials decided to punish the company with “administrative punishment” under Part 3 of Art. 14.1 of the Code of Administrative Offenses for violation of the rules for conducting licensed postal activities.

The case was received by ASGM. When the court began to consider it, it turned out that neither the ID Group lawyers nor representatives of Roskomnadzor were going to take part in the meeting. Only Sorokin came to court. He asked to be involved in the case as a third party. Two authorities initially refused, but the Moscow District Administrative Court recognized the right of the victim in the case of an administrative offense to participate in the process.

As a result, IDEM Group was released from liability due to the expiration of deadlines.

Bankruptcy of lawyers and legal expenses: decisions of the Moscow District Court of Justice

The matter did not end there. Sorokin demanded that the company reimburse him 35,000 rubles. expenses for a representative that he incurred in the course of appealing the ruling on inadmissibility to participate in the case. The ASGM and the 9th AAS denied the applicant, so the case returned to the district court.

The cassation noted that Sorokin was the only participant in the process with active procedural behavior. And legal costs also include those expenses that were necessary to exercise the right to go to court, as in the case of a third party in this case. Therefore, the district judges overturned the acts of the lower courts and sent the issue of awarding legal costs to Sorokin for a new trial (case No. A40-254791/2019).

“Success fee” as a way to withdraw assets

In January 2018, the Bar Association signed an agreement with JSC Proizvodstvennaya. The lawyers had to defend the interests of the creditor client in the bankruptcy case of Sibirskaya Mine LLC, a city-forming enterprise in the city of Polysayevo (case No. A27-20797/2016). The mine's property complex was estimated at amounts ranging from 1.8 to 16.7 billion rubles.

The creditor and the CA indicated in the agreement on legal assistance a condition on the “success fee”: in the event of full repayment of their claims in the amount of 90.1 million rubles. the client agreed to pay 48 million rubles. In July, the agreement was slightly changed and a condition for a monthly remuneration of 1 million rubles was added.

Back in May 2018, the debtor’s sole shareholder, the Cyprus-based Carlit Investments Limited, volunteered to pay off the debtor’s creditors’ claims. In July, the court granted the corresponding application and allowed the company to pay almost 616 million rubles. debts of Sibirskaya. A “positive result” was achieved, and the lawyers earned their “success fee” - in total, the board received 53 million rubles from Kuzbasstransugol.

Success fee: pros, cons and prospects

In 2021, Kuzbasstransugol was declared bankrupt. ASGM began a simplified insolvency procedure and appointed Elena Danilkina as bankruptcy trustee. She began to challenge the debtor’s transactions, including the agreement with the college (case No. A40-291982/2019). Danilkina doubted that it was the actions of lawyers that led to the settlement of the company’s claims in the Sibirskaya bankruptcy case. In addition, she pointed out the affiliation of Kuzbasstransugol, Sibirskaya and Cypriot Carlit Investments Limited. According to Danilkina, legal services under the disputed agreement were not actually provided.

The manager believes that in fact the agreement with the lawyers was needed by Kuzbasstransugol only to withdraw money on the eve of bankruptcy. Danilkina believes that the bar actually acted in the interests of the Cypriot company, and not the debtor. She indicated that the panel also represented the interests of Carlit Investments Limited in the bankruptcy case of Sibirskaya.

The first instance refused to recognize the transaction as invalid. According to Judge Kristina Tarannikova, in January 2021, the bar association began providing legal assistance at the risk of not receiving payment. “A significant percentage of the remuneration when agreeing on a “success fee” is determined by the legal nature of such a condition and the distribution of risk of the parties,” the judge noted. She also rejected arguments about the affiliation of the parties to the transaction. This decision was later confirmed by the 9th AAS.

In October, the dispute was considered by the Arbitration Court of the Moscow District. The cassation confirmed the manager's arguments about the affiliation of Russian and Cypriot companies: this is confirmed by several court decisions, including in the bankruptcy case of Kuzbasstransugol, the court indicated.

According to the judges, the colleagues did not appreciate—although they should have—the manager’s arguments that the lawyers knew about Carlit Investments’ intentions to pay off the claims of Sibirskaya’s creditors. If the lawyers really knew about this, then no legal services were needed. As well as negotiations with a Cypriot company regarding the repayment of claims, which were indicated “with a high degree of unreliability” in the acts on the provision of services under the contract.

The cassation overturned the decisions on this dispute and sent it for new consideration to the ASGM.

(Not) waiting for the verdict

In the bankruptcy case of the BFG-Credit bank, which collapsed in the summer of 2021, the DIA asked that co-owner Tamara Khoroshilova and the former deputy chairman of the bank’s board Denis Puresev be brought to subsidiary liability (case No. A40-163846/2016).

Knowingly established: verdict as a prejudice in a civil case

Already when considering the dispute, the ASGM singled out the issue of a “subsidy” for Khoroshilova into a separate proceeding - and immediately suspended it. Judge Anna Peshekhonova decided to wait for the Dorogomilovsky District Court’s verdict in case No. 01-17/2021 to come into force regarding two former bank tellers about the embezzlement of 750 million rubles, which were transferred from Khoroshilova’s account and which she then received at the bank’s cash desk. The 9th AAS confirmed the suspension, although representatives of the DIA insisted that the sentence was not related to the claims against the ex-co-owner of the bank.

The Moscow District Arbitration Court criticized the decision of its colleagues from lower authorities. The suspension must be convincingly justified. But in this case, the courts did not explain why they could not consider the issue of “subsidiary” without reference to the verdict of a court of general jurisdiction. Therefore, the cassation returned the dispute for a new consideration at the ASGM to correct this error.

The sale led to securing

In the bankruptcy case of Kompleksstroypodryad LLC, ASGM brought former manager Olga Kuzemskaya to subsidiary liability. She was forced to answer for the debtor’s obligations for 98 million rubles. She appealed this decision, and then one of the company’s creditors, entrepreneur Pavel Alpatov, asked the court to seize Kuzemskaya’s property in order to prevent her from escaping responsibility.

To support his fears, he cited Kuzemskaya’s recent transactions. In the 9th AAS, Alpatov said that the ex-head of Kompleksstroypodryad, after the court began considering a dispute about subsidiary liability, sold an apartment for more than 20 million rubles, a parking space and two cars.

Interim measures: when there is a chance to achieve them

But the appeal court was not convinced by these arguments. The Arbitration Court of the Moscow District corrected its colleagues from the lower court. The cassation court found it “obvious” that the defendant’s sale of property owned by her would reduce the likelihood of satisfying the creditors’ claims for subsidiary liability. In addition, Kuzemskaya did not provide “noteworthy” arguments as to why she needed to sell the property in such a short time.

Under such circumstances, the district court agreed to seize the property of the ex-manager (case No. A40-109709/2015).

Backwards, not forwards

“The construction and production company built two one-story buildings on its land plot without permits. In 2021, the State Inspectorate for Control over the Use of Real Estate in Moscow learned about this. Inspectors visited the site on September 9 and recorded violations.

The State Inspectorate had two months to bring “Velikoross” to administrative responsibility under Part 1.1 of Art. 6.7 Code of Administrative Offenses of Moscow. Officials made the decision on Monday, November 9, 2020. ASGM and the 9th AAS confirmed that the two-month deadline was not missed (case No. A40-49658/2021).

The Arbitration Court of the Moscow District pointed out an error in calculating the term with reference to Part 2 of Art. 4.8 Code of Administrative Offences. The deadlines began to be calculated from the day the administrative offense was discovered, that is, from September 9. And the two-month period ended on November 8. But at the same time, in the case when the last day of the deadline falls on a weekend, the Code of Administrative Offenses provides for a postponement for deadlines that are counted in days. For periods calculated in years and months, transfers are not provided. Therefore, since November 8 fell on a Sunday, the last working day for issuing the contested decision was November 6, the cassation judges emphasized.

• Maxim Varaksin

• Arbitration process

Features of responsibility

In the new edition of Art. 35 of the Criminal Code of the Russian Federation stipulates that an entity that created a criminal community or an organized group or led it shall be punished for organization and leadership in cases established by norms 208-210, 205.4, 282.1 of the Criminal Code, for all acts committed by members of these associations, if they were covered by his intention.

The remaining members of criminal groups are held accountable for participation in the attacks provided for in the above articles, as well as for other illegal actions in the commission/preparation of which they are involved.

Characteristics of the criminal organization (community)

According to the legal definition, a criminal organization can be defined as a group of certain citizens who perform criminal, dangerous to society, actions for personal gain. The main feature that is inherent in such groups is a conspiracy (agreement) before committing a crime and the stability of the composition of the organization over time, as well as the constancy of their activities.

Attention ! Criminals who acted as part of an organization will be prosecuted by law, and the punishment for their activities may vary depending on what aggravating circumstances took place.

For example, preliminary conspiracy and crimes based on it are punished differently than actions taken as part of an organized group. Let's take theft as an example: for conspiracy, when committed in a group of people, you can get a five-year prison sentence, while for theft as part of a criminal organization, you can be imprisoned for ten years.

For a crime as part of a criminal organization, you can receive a more severe punishment.

The law considers a certain classification and criteria for distinguishing certain criminal groups. These include the following:

• the group had a preliminary cohesion among its members;
• this community is stable for some time.

These criteria also have their own legislative explanation, which is used to guide the sentencing when determining the degree of stability of the group. These include:

• the immutability of persons participating in society;
• mutual connections between participants;
• the activities of criminals are balanced;
• methods of committing crimes are usually stable;
• The organization has existed for a long time, and repeated crimes have been recorded.

The court takes into account the degree of stability of the group

Attention ! Based on these criteria, certain conclusions can be drawn when assigning punishment to members of the organization.

Art. 35 of the Criminal Code of the Russian Federation with comments

The criminal legal significance of the classification of complicity lies in the fact that the named forms and types either act as mandatory signs of the act, or as qualifying or aggravating circumstances.

In the first part of Art. 35 of the Criminal Code defines complicity without prior agreement. This form of complicity is considered the least dangerous and most common. In such cases, the behavior of individuals in the group is characterized by the least degree of consistency. The subjects commit a crime together and act as accomplices.

In judicial practice under Art. 35 of the Criminal Code of the Russian Federation recognizes group rape, associated not only with the actions of the perpetrators who directly committed sexual intercourse, but also with the assistance of other persons who assisted them through mental or physical coercion of the victim. Accordingly, the actions of the latter are qualified in case of gang rape as co-perpetrator.

When committing a group act, the objective side can be performed by one or more subjects; each person can also perform part of the objective side.

What is a crime that was committed as part of a group of people?

The main criterion by which one can classify a particular criminal activity is the fact - whether there was a prior agreement between the participants or there was no such agreement.

If there was an agreement between them, then it is important to determine when this happened. The thoroughness of the well-thought-out plan of the crime is considered as an aggravating circumstance, and the punishment that can be faced for it will be more serious, in contrast to cases where the crime was committed spontaneously.

It is important whether there was collusion between the group members in advance

Accordingly, the court must analyze the previous actions of the group members and the number of participants, drawing conclusions based on this. It is noted that two or more people can participate in a group.

Important ! A few words about collusion. This is a kind of measure of unity among group members who commit illegal acts. A prior agreement indicates that there was some personal connection between the offenders and the crime may be classified as more dangerous.

Another important point regarding prior conspiracy is called complicity. When different group members occupy different roles, each action and function is punished accordingly.

The court will analyze the actions of the group members, determine whether there was a conspiracy or complicity

Preliminary conspiracy

It and its varieties are discussed in parts 2-4 of Art. 35 of the Criminal Code. When qualifying complicity, it is necessary to comprehensively assess the circumstances of the crime and identify the presence of conspiracy in them. Let's look at an example.

The subject participated in the murder of a citizen after the commission of other, previously conspired, guilty actions, the immediate purpose of which was to deprive the victim of his life. After the victim was beaten and stabbed multiple times in the neck and chest by his accomplices, the subject carried him to the containers. There he struck the victim on the head and torso with boards with the intent to kill. In this case, the qualification of his actions as a group murder by prior conspiracy is excluded.

Distribution of roles

Neither in Art. 35 of the Criminal Code, nor in other criminal norms is there any indication of limiting the number of persons who can participate in a group act by prior conspiracy. Accordingly, in addition to co-execution, there may be a distribution of roles in the crime.

For example, a preliminary conspiracy to murder presupposes an agreement between several citizens, expressed in any form, that took place before the commencement of actions aimed directly at depriving the victim of his life. In addition to co-performers, the group may include organizers, instigators, and accomplices. When identifying the appropriate roles, the actions of the persons who performed them fall under the relevant part of Article 33 and paragraph “g” of Part 2 105 of the Criminal Code.

At the same time, complicity in itself is not recognized as a qualifying circumstance provided for in paragraph “g”. For example, one of the group members lured the victim to a secluded place, but did not directly participate in taking his life. In this case, if there are no signs of other crimes in the actions, they are qualified under the relevant part of Article 33.

A group of persons and a group of persons by prior conspiracy: problems of qualification and responsibility

The key in Art. 35 of the Criminal Code of the Russian Federation the word is “group”. According to S.I. Ozhegov, a group is a collection of people united by a common interest, profession, activity (See: Ozhegov S.I. Dictionary of the Russian Language. M., 1990. P. 151.).

G.M. Andreeva understands a group as a real-life entity in which people are brought together, united by some common characteristic, a type of joint activity, or placed in some identical conditions, circumstances (also in the real process of their life), and in a certain way are aware of their belonging to this education (See: Andreeva G.M. Social psychology. M., 1980. P. 176.).

According to N.G. Ivanov, “combining the quantitative characteristics of the group with the above, we obtain a lapidary definition: a group is an entity where two or more persons act together, aware of their belonging to this entity” (Ivanov N.G. Organized crime and improving criminal legislation on complicity // Soviet state and law. 1990. No. 7. P. 71.).

R.R. Galiakbarov believes that an indication of a group of persons in the text of a criminal law norm can indicate not only complicity, but also characterize a group method of committing a crime (See: Galiakbarov PP Qualification of group crimes. M., 1980. P. 35-36.) . In his opinion, the group method of committing a crime is a specific form of criminal activity, which requires an independent legal assessment (See: Galiakborov PP Group crimes. Sverdlovsk, 1973. P. 118.).

I.P. agrees with him. Malakhov, who points out: “Complicity in a crime is not at all identical to a group criminal attack, no matter in what form it manifests itself. These are different phenomena that have different content and independent criminal legal significance. Theoretical developments of issues of group manifestations of crime from the standpoint of complicity, as well as issues of complicity in crime from the standpoint of group manifestations of crime, are erroneous” (Malakhov I.P. Complicity and group organized crime // Jurisprudence. 1994. No. 5-6. P. 125.).

It seems to us that the new criminal legislation has resolved all these issues. A group of persons, a group of persons by prior conspiracy, an organized group and a criminal community (criminal organization) are recognized as forms of complicity, and their criminal legal significance is considered exclusively within the framework of complicity. In the literature, an attempt was made based on the analysis of such a type of complicity as a group of persons without preliminary conspiracy, identify and formulate a new type of accomplice - the initiator of the crime. In this case, it is proposed to recognize the initiator as a person who, when committing a crime by a group of persons without prior conspiracy, in addition to the direct execution of the criminal act, expresses the idea of ​​committing this illegal act or imposes it on the rest of the accomplices (See: Kalutskikh R.G. Criminal legal issues of qualification of crimes committed in complicity. M., 2000. P. 6.14.).

This proposal does not follow from the current law, since a group of persons without prior conspiracy presupposes the participation in the commission of a crime of two or more perpetrators without prior agreement (Clause 1 of Article 35 of the Criminal Code of the Russian Federation). If one of the perpetrators expresses the idea of ​​committing a crime or imposes it on the rest of the accomplices who agree with it, then most likely this will be a group of persons by prior conspiracy. Moreover, does it make sense to specifically single out such a person (as a type of accomplice) if a particularly active role in the commission of a crime is, in accordance with paragraph “g” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation, an aggravating circumstance? I think there is no point in this. The commission of a crime by a group of persons, by a group of persons by prior conspiracy, if this is not provided as a qualifying feature in the article of the Special Part of the Criminal Code of the Russian Federation, must be reflected in the imposition of punishment, in accordance with paragraph “c” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation, as an aggravating circumstance.

The Chelyabinsk Regional Court convicted Denisyuk and Polizov under paragraphs. “a”, “g”, “i”, “n” st. 102 of the Criminal Code of the RSFSR, paragraphs. “b”, “c”, “d” part 3 of article 162 of the Criminal Code of the Russian Federation. As established by the court, Denisyuk, Polizov and other convicts came to their house with the aim of stealing from the Khokhryakovs’ apartment. But unexpectedly for them, Polyakova was in the apartment. Having pushed her into the apartment, Polizov and Denisyuk killed the victim and then stole her things and money. Polyakova’s presence in the apartment was unexpected for the convicts; there is no evidence that Polizov and Denisyuk agreed in advance to jointly commit her murder, therefore their conviction under paragraph “n” of Art. 102 of the Criminal Code of the RSFSR was excluded from the verdict (Bulletin of the Supreme Court of the Russian Federation. 1999. No. 11. P. 19.).

When considering cases in which there is a qualifying feature - the commission of a crime by a group of persons by prior conspiracy - the courts, in violation of Art. 20, 68, 314 of the Code of Criminal Procedure of the RSFSR do not indicate where and when the preliminary conspiracy to commit a crime took place, or whether there was such an agreement at all. This circumstance leads to the fact that the courts do not distinguish between the qualifying criteria - the commission of a crime by a group of persons by prior conspiracy and simply by a group of persons. The reference in the verdict to the action of the convicts in concert and at the same time does not indicate the presence of a preliminary conspiracy, but the commission of a crime by a group of persons. The verdict of the Chelyabinsk Regional Court in relation to A., convicted of the murder of M. under clauses “e”, “g”, part 2 of Art. 105 of the Criminal Code of the Russian Federation, in particular, for murder by a group of persons by prior conspiracy, was changed, since a prior conspiracy for this crime was not established (Bulletin of the Supreme Court of the Russian Federation. 2001. No. 7. P. 27.).

By the verdict of the Oktyabrsky District Court of Saransk, Republic of Mordovia, K. was convicted under paragraph “a” of Part 2 of Art. 213, paragraph “b”, part 2, art. 131 of the Criminal Code of the Russian Federation and 3. under paragraph “a”, part 2 of Art. 213, paragraph “b”, part 2, art. 131, paragraph “a”, “b”, part 2 of Article 132 of the Criminal Code of the Russian Federation. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation changed the verdict and excluded the indication of preliminary conspiracy, since the case materials do not contain evidence confirming that those convicted in advance agreed to jointly commit hooliganism and rape, and in accordance with Part 2 of Art. 35 of the Criminal Code of the Russian Federation, it is in this case that the crime is recognized as committed by a group of persons by prior conspiracy. Evidence of the joint commission of crimes by K. and Z. provides grounds for recognizing the crime as committed by a group of persons (Bulletin of the Supreme Court of the Russian Federation. 2001. No. 9. P. 17.). According to Yu.A. Didatov, which we support, the legislative remark “without prior agreement” does not at all indicate the absence of an agreement at all. Complicity is unthinkable without the mutually agreed upon activities of the participants. This indisputable provision predetermines the need to establish the very fact of the agreement, which, in turn, is objectified at a later stage of the development of the crime - the stage of the attempt. That is why such a conspiracy cannot be called preliminary (See: YL Didatov. Co-execution of a crime under Russian criminal law. M., 1998. P. 20.).

In accordance with Part 2 of Art. 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime. Some authors in this regard draw attention to the inaccuracy of the wording: “the same act committed by a group of persons”, “a group of persons by preliminary conspiracy" or "organized group" (See: Course of criminal law. General part. T. 1: Doctrine of crime / Edited by N.F. Kuznetsova and N.M. Tyazhkova. M., 1999. P. 258 .).

In solidarity with them, N.G. Kadnikov believes that it is wrong to talk about group crimes. According to Art. 34 of the Criminal Code of the Russian Federation, the responsibility of accomplices in a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime. Therefore, it is more correct to talk not about a group crime, but about the commission of a crime as part of a group of persons (as enshrined in paragraph “c” of Part 1 of Article 63 of the Criminal Code) (See: N.G. Kadnikov. Qualification of crimes under the criminal law of Russia. M., 2000. P. 63-64.).

We believe that the crime is committed by a group of persons by prior conspiracy, by an organized group, by a criminal community, since this is exactly what is stated in the law (Article 35 of the Criminal Code of the Russian Federation). Another thing is that each accomplice bears individual responsibility, which is why in paragraph “c” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation (circumstances aggravating punishment) already talks about liability for committing a crime, for example, as part of a group of persons by prior conspiracy.

The commission of a crime by accomplices does not at all exclude the personal responsibility of each of them in proportion to the act in accordance with Art. 34 of the Criminal Code of the Russian Federation.N.G. Ivanov rightly notes that the term “preliminary” means anticipation of an action, that is, before an action. In criminal law, the beginning of the commission of an act is considered to be an attempt. Therefore, all actions aimed at forming a group, committed before the assassination attempt, will be considered from the point of view of a preliminary agreement. Similar actions, but committed after the attempt (and complicity, as is known, is possible before the actual, but not legal, completion of the crime) cannot be considered as a preliminary agreement (See: Ivanov N.G. Organized crime and improving criminal legislation on complicity // Soviet state and law. 1990. No. 7. P. 72.).

In contrast to complicity without prior conspiracy, when the agreement for joint criminal activity and the criminal activity itself (fulfillment of the objective side of the crime) coincide, with prior conspiracy they are separated. In a review of the supervisory practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 1999, .

A group of persons, by prior conspiracy, agrees in advance on joint criminal activity. Paragraph 13 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of bribery and commercial bribery” dated February 10, 2000 states: “A bribe or the subject of commercial bribery should be considered received by prior conspiracy by a group of persons if two or more people participated in the crime officials performing managerial functions in a commercial or other organization who have agreed in advance to jointly commit this crime using their official position” (Bulletin of the Supreme Court of the Russian Federation. 2000. No. 4. P. 7.).

In this regard, the questions of when, where and under what circumstances the conspiracy took place seem obligatory. This is noted in the review of the cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 1999: “The Arkhangelsk Regional Court convicted Zhidkov and Trofimov of murder under preliminary conspiracy by a group of persons to conceal a crime. However, the verdict does not indicate when, where and under what circumstances the convicts entered into a murder conspiracy.

The verdict of the Bryansk Regional Court against Bashanov and Samofalov, convicted of kidnapping N. by prior conspiracy by a group of people, attempted rape and a number of other crimes, was canceled because the actions of the convicts were not specified. The testimony of the convicts set out in the verdict does not correspond to their testimony in the protocol court session. The presence of preliminary conspiracy in the verdict is not motivated. It is not indicated at what point the preliminary conspiracy took place” (Ibid. P. 16). The absence of a preliminary conspiracy between persons, for example, to commit murder, excludes qualification under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation (clause “n” of Article 102 of the Criminal Code of the RSFSR). Thus, by the verdict of the regional court S. and K. were found guilty of premeditated murder committed by prior conspiracy by a group of persons and for mercenary motives, and were convicted under clause “ a", "n" st. 102 of the Criminal Code of the RSFSR. The crime, as stated in the verdict, was committed under the following circumstances. In October 1993, K. borrowed 1,600 dollars ($) from his friend, 400 of which he paid back in December 1993, and did not return the remaining 1,200, despite repeated demands. On December 13, 1993, when the victim again demanded to repay the debt, K, taking a small-caliber revolver and a clothesline, together with S. in a car driven by U., fraudulently took the victim to a country road, where K. was in the car for the purpose of murder For selfish reasons (failure to return $1,200), he threw a rope around his neck and began to strangle him. When the rope broke, K. shot the victim in the head with a small-caliber revolver. After that, S., together with K., at the latter’s request, pulled the wounded victim out of the car and threw him into a roadside ditch with water, while K. tried to finish him off, striking him kicks on the head. After K., S. and U. left the scene, the victim crawled onto the road, where he died from a gunshot wound.

The Presidium of the Supreme Court of the Russian Federation satisfied the protest of the Deputy Chairman of the Supreme Court of the Russian Federation, changed the verdict and ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation: it excluded K.’s conviction under paragraph “n” of Art. 102 of the Criminal Code of the RSFSR; re-qualified S.’s actions from paragraphs “a”, “n” of Art. 102 of the Criminal Code of the RSFSR at Part 1 of Art. 189 (concealment) of the Criminal Code of the RSFSR for the following reasons. The court did not indicate in the verdict on what it based its conclusions that S. and K. committed murder by prior conspiracy. From the descriptive part of the verdict it is clear that all bodily injuries to the victim, including those that resulted in his death, were caused by K. S.’s guilt was only that he, seeing the socially dangerous nature of K.’s actions, at his request, pulled out the wounded victim with him from inside the car. K., who basically did not dispute his guilt in the murder, testified that he did not involve S. and U. in his plans. S. did not admit guilt to the charges and consistently asserted that he had no grounds for the murder, did not know about K.’s intentions and did not even guess.

While in the front seat of the car, he saw K. throw a rope around the victim’s neck, begin to choke him, and then shoot him in the head. When K. asked him to help pull the victim out of the car, he obeyed him because he was scared and confused. Under such circumstances, there is no convincing evidence that S. took part in the murder by prior conspiracy with K. (Bulletin of the Supreme Court of the Russian Federation. 1997. No. 4. pp. 11-12.). It seems that in the given example there was no complicity, therefore K. was found guilty of premeditated murder for mercenary motives (clause “a” of Article 102 of the Criminal Code of the RSFSR), and S. - of concealment of a crime not promised in advance (Part 1 of Art. 189 of the Criminal Code of the RSFSR). A preliminary agreement between the accomplices must necessarily take place regarding a specific crime. The performer's going beyond the limits of the agreement should be considered as an excess of the performer. Thus, by the Lyublinsky District Court of Moscow on July 6, 1995, Ilyuk was convicted under clauses “a”, “b”, part 2 of Art. 146 of the Criminal Code of the RSFSR. He was found guilty of robbery by prior conspiracy by a group of persons using weapons. Sergeev and Savelyev were also convicted in the case.

The verdict was not appealed or protested in cassation. The Presidium of the Moscow City Court protests from the Deputy Chairman of the Supreme Court of the Russian Federation about changing the sentence against Ilyuk - reclassifying his actions from clauses “a”, “b”, part 2 of Art. 146 of the Criminal Code of the RSFSR at Part 2 of Art. 145 of the Criminal Code of the RSFSR was left without satisfaction. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation on September 7, 1999 satisfied a similar protest of the Deputy Chairman of the Supreme Court of the Russian Federation, indicating the following. The court established the circumstances of the crime correctly, however, the sentence against Ilyuk is subject to change. The victim Topolskaya and the witness Yudin testified about the circumstances of the robbery attack on them that they saw only two masked attackers, one of them had a pistol, from which he fired two shot in their direction. Having taken possession of the bag with money, the attackers fled.

From the testimony of Sergeev and Savelyev at the initial stage of the investigation of the case, as well as from the testimony of Topolskaya and Yudin, it is not clear that there was an agreement between the convicts to commit a robbery with a weapon and that Ilyuk reliably knew that Sergeev had a gas pistol. As can be seen from the case materials , at the time of the attack, Ilyuk was not an eyewitness to the use of weapons in the attack on the cashier. Consequently, neither the investigating authorities nor the court have established evidence confirming a preliminary conspiracy with Ilyuk to commit a robbery with a weapon. Since the available evidence does not confirm that the actions of Savelyev and Sergeev, who used a gas pistol during the attack, were covered by Ilyuk’s intent, it should be recognized that in this particular case Savelyev and Sergeev acted independently and there was an excess of the perpetrators (expressed in the commission of robbery with the use of weapons). The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation qualified Ilyuk’s actions under Part 2 of Art. 145 of the Criminal Code of the RSFSR (as amended on December 3, 1982), which provides for liability for robbery committed by prior conspiracy by a group of persons (Bulletin of the Supreme Court of the Russian Federation. 2001. No. 6. P. 10-11.).

The point of view that only co-perpetrators can be part of a criminal group is generally accepted. A.F. Ananyin writes: “A criminal group is an association of two or more persons, intentionally, jointly and in concert with each other, directly influencing the object of criminal legal protection, fully or partially fulfilling the objective side of a single intentional crime” (Ananin A.F. Organization, incitement and complicity in a group crime. Sverdlovsk, 1980. P. 10.).V.A. Alekseev notes that a specific feature that distinguishes a group crime from other manifestations of complicity is the direct participation of at least two persons in the fulfillment of the objective side of the crime. Participants in a group crime must be co-perpetrators (See: Alekseev V.A. Criminal liability for thefts committed using an official position by an organized group of persons. M., 1990. P. 8.).

The situation has not changed even with the advent of the new Criminal Code of the Russian Federation. Despite the fact that the law does not directly indicate that several performers are participants in a group of persons by prior conspiracy, judicial practice firmly proceeds from the fact that in this case we are talking specifically about complicity in the form co-execution by prior conspiracy (See: Commentary on the Criminal Code of the Russian Federation / Editor-in-chief V.I. Radchenko; scientific editor A.S. Mikhlin. M., 2000. P. 68-69.). And indeed, for example, in a review of the judicial practice of the Supreme Court of the Russian Federation for the third and fourth quarters of 1996, it is stated: “Intentional murder is recognized as committed by a group of persons by prior conspiracy if it involved two or more perpetrators who agreed in advance to commit it jointly, and each of them performed actions that formed part of the objective side of the crime.

The actions of one performer and an accomplice (organizer, instigator) do not form a group, therefore, the actions of an accomplice cannot be qualified under Art. 17, paragraph “n” art. 102 of the Criminal Code of the RSFSR. By the verdict of the city court, T. and X. were found guilty and convicted under clauses “e”, “n” of Art. 102 of the Criminal Code of the RSFSR, in addition, T. was convicted under Part 2 of Art. 125 of the Criminal Code of the RSFSR, and X. - under Part 2 of Art. 126 of the Criminal Code of the RSFSR. The cassation court, having come to the conclusion that T. and X. provided only assistance to P. in the murder of the victim (the case against P. was discontinued due to his death), reclassified their actions under Art. 17, paragraph “e”, “n” art. 102 of the Criminal Code of the RSFSR. The verdict regarding the conviction of T. under Part 2 of Art. 125 and regarding the conviction of X. under Part 2 of Art. 126 of the Criminal Code of the RSFSR was ruled correctly, since T., realizing the intent to kidnap a person, forcibly brought (by prior agreement with other persons) two victims to an empty apartment, and X. and other persons kept them in this apartment, beat them, and kept them tied up. Chairman The Supreme Court of the Russian Federation in its protest raised the question of excluding from the verdict and ruling of the cassation instance the conviction of T. and X. under Art. 17, paragraph "n" art. 102 of the Criminal Code of the RSFSR.

The Presidium of the Supreme Court of the Russian Federation satisfied the protest, indicating the following. T. and X., at P.’s request, brought the tied up victim in the trunk of a car to the sand pit, since P. wanted to “deal with” the victim. P. gave X. a shovel and invited him to dig. One P. stabbed the victim with a knife, then T. and X. pushed the corpse into a hole and buried it. The case materials indicate that T. and X. did not take direct part in taking the victim’s life. Thus, there was no joint commission of murder. There is no evidence in the case that the victim was killed by prior conspiracy. T. and X. cannot be held liable under Art. 17, paragraph "n" art. 102 of the Criminal Code of the RSFSR. Placing a tied victim in the trunk of a car, transporting him to the scene of the crime, digging a hole and concealing traces of the murder are covered in this case by the disposition of Art. 17, paragraph "e" art. 102 of the Criminal Code of the RSFSR.

Conviction of T. and X. under Art. 17, paragraph "n" art. 102 of the Criminal Code of the RSFSR was excluded from the verdict and ruling of the cassation instance, otherwise the verdict was left unchanged” (Bulletin of the Supreme Court of the Russian Federation. 1997. No. 4. P. 11.). Finally, an example from the practice of applying the new Criminal Code of the Russian Federation. The military court of the Volga Military District convicted Erofeev of committing (among other crimes) murder by prior conspiracy by a group of persons in order to facilitate the commission of another crime, and Anoshkin for complicity in this murder. According to the verdict, Erofeev and Anoshkin agreed to jointly steal property from the Domnins’ apartment, and divide the money from its subsequent sale among themselves. At the same time, in order to unhindered entry into the apartment, they decided to take possession of the keys to it, killing for this purpose the minor Domnin D. in a pre-agreed place.

Fulfilling his plan, Anoshkin invited Domnin D. to a transformer booth located near the victim’s place of residence, and Erofeev strangled the victim with a pre-prepared rope and confiscated the keys to the apartment from him. These actions of Erofeev were qualified by the court under paragraphs “g,” “k,” h 2 Art. 105 of the Criminal Code of the Russian Federation, and Anoshkina - under Part 5 of Art. 33 and p. "g," "k" part 2 of Art. 105 of the Criminal Code of the Russian Federation. The Military Collegium of the Supreme Court of the Russian Federation, having considered the case on cassation on August 12, 1999, assessed the qualification of the actions of the convicts as erroneous and changed the verdict in this part, indicating the following. Murder is recognized as committed by a group of persons by prior conspiracy when two or more persons, having an agreement aimed at murder, directly participated in the process of taking the life of the victim. In court, it was established that the murder of the victim Domnin D. was committed by Erofeev alone, throwing a weapon around his neck rope and suffocating in this way. Anoshkin did not take part in taking the life of Domnin D. He only assisted Erofeev by luring the victim to a secluded place. Since complicity in the form of complicity in the murder of the victim does not form a group, the qualifying feature of murder provided for in paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, “committed by a group of persons by prior conspiracy” is imputed to both convicts without justification.

Therefore, the Military Collegium excluded from the verdict the instruction to convict Erofeev under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and Anoshkina under Part 5 of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code of the Russian Federation, recognizing Erofeev convicted under paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and Anoshkina under Part 5 of Art. 33 and paragraph “k”, part 2, art. 105 of the Criminal Code of the Russian Federation (Bulletin of the Supreme Court of the Russian Federation. 2000. No. 5. P. 8-9.). From the above examples, the position of the Supreme Court of the Russian Federation is clearly visible, which is that a group of persons in a preliminary conspiracy (for example, in cases of premeditated murder) is necessarily two or more perpetrators who have agreed in advance to jointly commit a crime.

According to the authors of the Commentary to the Criminal Code of the Russian Federation, this form of complicity can be combined with both co-execution and complicity in the close sense, that is, with a division of roles, but in the latter case there must be at least two co-executors (See: Commentary on the Criminal Code RF / Edited by A.V. Naumov. M., 1997. P. 123.). Paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in murder cases” dated January 27, 1999 states: “A preliminary conspiracy to murder presupposes an agreement expressed in any form between two or more persons, which took place before the commencement of actions directly aimed at deprivation of the victim's life. At the same time, along with co-perpetrators, other members of the criminal group may act as organizers, instigators or accomplices of murder, and their actions should be qualified under the relevant part of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code of the Russian Federation" (Bulletin of the Supreme Court of the Russian Federation. 1999. No. 3. P. 4.). S.V. It seems to Borodin that this corresponds to the exact meaning of the law, from which it follows that the deprivation of human life committed by a group of persons is being prosecuted, and this does not mean a group of persons who, after conspiring to murder, “entrusted” one person with committing the crime.

If the murder was directly committed by two or more persons, the question of the correct application of paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is beyond doubt (See: Borodin SV. Crimes against life. M., 1999. P. 130.).

Thus, if the murder was committed by two or more co-perpetrators, then their actions should be qualified under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation. If, along with co-perpetrators, an organizer, instigator or accomplice takes part in the commission of a crime, then the actions of these persons must also be qualified under the relevant part of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code of the Russian Federation. The situation changes if, along with the organizer, instigator or accomplice, the crime is directly committed by one perpetrator. In this case, as follows from the given examples and the said resolution of the Plenum of the Supreme Court of the Russian Federation, qualification under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation is impossible neither for the performer nor for other accomplices.

The question arises: why does the qualification of the actions of an organizer, instigator or accomplice depend on how many perpetrators participate in the commission of a crime?

Why is it necessary to have at least two perpetrators in a group of persons by prior conspiracy (Part 2 of Article 35 of the Criminal Code of the Russian Federation). After all, the presence of two or more performers (and this is directly stated in Part 1 of Article 35 of the Criminal Code of the Russian Federation) is mandatory only for a group of persons without prior conspiracy. In the case of Pilishvili and Chelidze, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the actions of one of the accomplices, not who took direct part in the robbery, reclassified from paragraphs “a”, “d” of Part 2 of Art. 162 of the Criminal Code of the Russian Federation at Part 5 of Art. 33 and paragraph “g”, part 2, art. 162 of the Criminal Code of the Russian Federation as complicity in the form of complicity in a robbery with the use of a weapon and excluded from the sentence against the perpetrator of the crime (convicted under paragraph “c” of Part 3 of Article 162 of the Criminal Code of the Russian Federation) the qualifying feature of robbery - its commission by a group of persons by prior conspiracy (Bulletin of the Supreme Court of the Russian Federation. 1999. No. 7. P. 13.).

In this regard, the question arises about which form of complicity provided for in Art. 35 of the Criminal Code of the Russian Federation takes place in this case?

There can be only one answer - a group of persons by prior conspiracy. Why then is this qualifying feature excluded?! The point of view of the authors of the Commentary to the Criminal Code of the Russian Federation is that the provision of assistance by a person to the perpetrator in committing a crime by providing means or instruments or by removing obstacles, as well as by pre-promised concealment actions, if this person was not directly involved in carrying out the objective side of the crime, is not considered as the commission of a crime by a group of persons by prior conspiracy, seems to us controversial (See: Commentary on the Criminal Code of the Russian Federation / Editor-in-chief V.I. Radchenko; scientific editor. A.S. Mikhlin. P. 69.).

The objections stem from the fact that in this case there is complicity. And in what form, if not in a group of persons by prior conspiracy? After all, it is not complicity itself and its theoretical provisions that are important for qualifying a crime, but those provided for in Art. 35 of the Criminal Code of the Russian Federation forms of criminal activity. The following must also be taken into account. For example, in clause “g”, part 2 of Art. 105 of the Criminal Code of the Russian Federation are indicated, separated by commas, as qualifying circumstances, a group of persons, a group of persons by prior conspiracy and an organized group. If the murder is committed by two perpetrators without prior agreement, then their actions will be qualified under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation on the basis of a group of persons. If the murder is committed by two perpetrators by prior conspiracy, then their actions will also be qualified under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, but on the basis of a group of persons by prior conspiracy. The actions of other accomplices (organizer, instigator, accomplice) in this case should be qualified under the relevant part of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code of the Russian Federation.

But if the murder was committed by one perpetrator, then, despite the presence of other accomplices (organizer, instigator, accomplice) and in the absence of other qualifying circumstances, his actions will be qualified under Part 1 of Art. 105 of the Criminal Code of the Russian Federation. The actions of other accomplices - according to the relevant part of Art. 33 and part 1 of Art. 105 of the Criminal Code of the Russian Federation. Thus, it turns out that two co-executors, without prior agreement, will be held liable under paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, and the performer by prior conspiracy with other accomplices - under Part 1 of Art. 105 of the Criminal Code of the Russian Federation. At the same time, other accomplices will also be held liable only under Part 1 of Art. 105 of the Criminal Code of the Russian Federation and the corresponding part of Art. 33 of the Criminal Code of the Russian Federation. Is it possible to say that the actions of two performers without prior agreement are more dangerous than the actions of accomplices with a distribution of roles, but with one performer? The Chita Regional Court convicted S. under clause “and” of Art. 102 and art. 107 of the Criminal Code of the RSFSR and Z. - according to clauses “g”, “n” of Art. 102 of the Criminal Code of the RSFSR. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, changing the verdict, reclassified the actions of S, who did not directly participate in the deprivation of the life of the victim, from clause “i” of Art. 102 of the Criminal Code of the RSFSR at Art. 17, 103 of the Criminal Code of the RSFSR and excluded the instruction to convict Z. under paragraph “n” of Art. 102 of the Criminal Code of the RSFSR for committing premeditated murder by prior conspiracy by a group of persons (Bulletin of the Supreme Court of the Russian Federation. 2000. No. 10. P. 21.).

But here's another example. The Primorye Regional Court convicted Kravchuk under Art. 17, 103 of the Criminal Code of the RSFSR, and Bystryakov - under paragraph “a” of Art. 102 of the Criminal Code of the RSFSR. The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation left the verdict unchanged. The Presidium of the Supreme Court of the Russian Federation, satisfying the protest of the Deputy Prosecutor General of the Russian Federation, indicated the following. In the resolution to bring Kravchuk as a defendant under paragraph “a” of Art. 102 of the Criminal Code of the RSFSR, the investigative authorities indicated that she, having the intent to kill her husband, offered Bystryakov to directly commit the murder, promising 5,000 rubles for this, to which he agreed. The court qualified her actions under Art. 17, 103 of the Criminal Code of the RSFSR as aiding and abetting to commit premeditated murder without aggravating circumstances. At the same time, the court indicated in the verdict that she acted not out of selfish motives, but out of a sense of revenge, due to the personal hostile relationship that had developed between her and her husband, and did not take direct part in the taking of Kravchuk’s life. The court qualified Bystryakov’s actions under paragraph “a” of Art. 102 of the Criminal Code of the RSFSR. Thus, the court found Kravchuk guilty of complicity in the commission of a crime under Art. 103 of the Criminal Code of the RSFSR, although he did not find anyone directly guilty of committing such a crime.

In this regard, the court's conclusions cannot be considered consistent with the law. The court decisions regarding Kravchuk in the case were canceled and the case was sent for a new trial due to incorrect qualification of her actions (See: Practice of the Supreme Court of the Russian Federation in criminal cases. M., 1995. P. 143-145.). In our opinion, in both cases, each accomplice had to be charged with the qualifying characteristic of committing a murder by prior conspiracy by a group of persons.

In this regard, we propose, for example, a qualifying feature provided for in paragraph “g” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, - committing murder by prior conspiracy by a group of persons - is charged to each member of a group of persons by prior conspiracy in all cases, regardless of the number of perpetrators. Such a situation is also possible, described by Professor A. Kladkov (See: A. Kladkov. Qualification of crimes, committed in complicity // Legality. 1998. P. 28.). In part 4 art. 34 of the Criminal Code of the Russian Federation states that a person who is not the subject of a crime specifically specified in the relevant article of the Special Part of the Criminal Code (special subject), who participated in the commission of a crime under this article, bears criminal liability for this crime as its organizer, instigator or accomplice.

This provision does not cause difficulties when the implementation of the objective side of the crime is impossible for a non-specialized subject, for example, in case of desertion (Article 338 of the Criminal Code of the Russian Federation). But in some crimes with a special subject there is such a possibility. For example, in case of rape (Article 131 of the Criminal Code of the Russian Federation), the special subject of which is a man. The objective side of this composition consists of sexual intercourse and physical violence or the threat of its use. It is clear that the perpetrator of part of the objective side - to use violence or threaten to use it - can also be a woman who is not a special subject of this crime.

According to the previous Criminal Code, such persons were recognized as subjects of gang rape. The new Criminal Code proposed to consider them in such cases as accomplices of rape. But the accomplice (woman) and the perpetrator (man) do not form a group giving grounds in accordance with Art. 35 of the Criminal Code to recognize gang rape. In this regard, the new Criminal Code has retroactive force in relation to gang rapes committed before January 1, 1997, with the participation of women, when they were recognized as co-perpetrators. However, the application of retroactive force raises a number of questions, and not only related to the reduction of punishment. If rape due to the absence of a group is subject to reclassification under Part 1 of Art. 131 of the Criminal Code of the Russian Federation, then a statement from the victim is required to initiate a criminal case. But sometimes, for one reason or another, it is almost impossible to obtain, especially when it comes to extending retroactive effect to those serving or even those who have served their sentence.

In this case, is the case subject to termination for lack of a complaint from the victim, and the person serving the sentence be released from it? How to answer these questions? It’s quite simple - you need to recognize the accomplice (woman) and the perpetrator (man) as a group of persons by prior conspiracy, and all questions will be removed.

A. Arutyunov, lawyer Journal “Law and Politics” No. 2 – 2002

Nuances

The act will be considered committed by prior conspiracy, regardless of the fact that the persons were not brought to justice due to underage or due to insanity. In such situations, the court must examine the intent of each group member.

For example, robbery is qualified as committed by previously conspiring subjects if the intention of each included the use of actions that pose a threat to the health/life of the victim. It must be taken into account that coordination in actions does not yet mean the presence of a preliminary conspiracy.

Questions and answers

Question 1. If there was a charge under Article 159 (Fraud), part 4, and the participants were defined as an organized group, then can the crime be classified differently, as a group of persons by prior conspiracy?

Answer. The theft of other people's material assets when there has been forgery, deception or abuse of trust is classified as fraud. And the fourth part implies that responsibility comes for the fact that the crime was committed by an organized group.

Legislatively, such a group can only be considered citizens who were united in advance in order to commit a crime, their composition is stable, and a preliminary agreement is visible in their actions.

In fact, during the rendering of a verdict, difficulties arise - how exactly can crimes committed by a group of people be classified.

A group of persons by prior conspiracy is considered to be people who previously united to commit a crime

There is legislatively approved information that an organized group is characterized, first of all, by a stable composition, a certain structure that includes leadership and a thoughtful plan, invented in advance for the purpose of committing a criminal act. The functionality is clearly distributed during preparation.

According to the law, the following characteristics can indicate the stability of a group.

1. Stable and unchanged composition of the organization.
2. Maintain communication between all members.
3. There is consistency in the actions taken.
4. Consistency of methods of committing crimes.
5. Long period of existence and number of crimes.

The stability of the group can be indicated by its stable composition

Let's look at an example of an organized group (this is a real case from the appeal ruling of the Judicial Collegium of the Rostov Regional Court, the case took place in 2014).

In a certain group, a certain plan of action was thought out in advance, and the roles were clearly distributed. That is, M. acquired the goods and subsequently transferred it to other participants - K. and P., through the actions of D., and they already illegally distributed it. And they have been engaged in this activity for several years, in this stable composition, they did not allow outsiders to sell drugs, they maintained anonymity and evaded criminal liability.

Based on the above information and the considered example, it is possible to deduce the main differences between a group of persons in a preliminary conspiracy and an organized structure.

1. In an organized group, one permanent leader is allocated, while in a group of persons by prior conspiracy there is no such leadership, or his responsibilities lie with an indefinite circle of participants in the formation.
2. An organized group is a stable structure, its composition does not change throughout the entire period of activity, whereas if we are talking about a group of persons by prior conspiracy, the composition there may be different.
3. An organized group carries out its activities for a much longer period than a group of persons who act by prior conspiracy.

An organized group usually operates over a long period of time

Thus, when appealing the decisions of the authorities, one must rely on the facts of the difference between one group and another.

Question 2. A group of persons, by prior conspiracy, extorted money in the amount of 5 million rubles from a legal entity at gunpoint; they seized the money. What article of the Criminal Code is this?

Answer : Article 162, part 4. For a more accurate qualification, it is necessary to familiarize yourself with all the materials of the case.

Question 3. The crime was committed by a group of persons by prior conspiracy with the participation of a minor. Please clarify who will be prosecuted under Article 150 of the Criminal Code? Only the organizer (the instigator of the crime) or all the participants?

Answer : According to Art. 150 of the Criminal Code of the Russian Federation, all performers can be involved.

When a crime is committed by a group of persons, all its participants are held accountable

Question 4. My phone was stolen (by a group of people by prior conspiracy). The investigator estimated the damage at 4,300, and I do not agree with this - the check was for 11,000 rubles. Is this significant damage? How can the amount of damage affect the further course of the case?

Answer: In this situation, the amount of damage does not affect anything. The action is qualified under Part 2 of Article 158 of the Criminal Code of the Russian Federation. Significant damage is determined according to the financial situation of the victim and cannot be less than 2.5 thousand rubles.

Question 5. What can be the punishment under Article 158 , Part 2 for a preliminary conspiracy by a group of persons, if previously one of the members was prosecuted under Article 158?

Answer: Punishment for each will be assigned individually. The punishment for someone who has previously been convicted will be greater (if the conviction has not yet been expunged). As a rule, such a crime is punishable by a fine in the amount of up to 200 thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to 18 months, or by correctional labor for up to 2 years, or by forced labor for up to 5 years with restriction of freedom for a period of up to one year, or without it, or imprisonment for up to five years with an additional restriction of freedom for up to 1 year (or without it).

Punishment for each participant can be assigned individually

Question 7. I am a suspect under Article 159 part 3 (in a group of persons by prior conspiracy). I do not deny my guilt, but there is an agreement with the victim, we have settled everything between ourselves. Is it possible for him to demand the termination of criminal prosecution against me as a source of power?

Answer : According to Article 76 of the Criminal Code of the Russian Federation, a person who has committed a crime of moderate or minor gravity for the first time can be released from criminal liability if there is reconciliation between the parties and the victim, and the harm has been made up for. Accordingly, the court or investigator has the right, on the basis of a statement from the victim or his legal representative, to terminate the criminal case on the basis of reconciliation of the parties.

However, Article 159 under which you are charged (fraud using official position) is punishable by imprisonment for up to six years with a fine of up to 10 thousand rubles, which automatically does not allow it to be considered a crime of medium gravity (in which the maximum punishment provided for by this Code does not exceed five years of imprisonment). Accordingly, without reclassifying the case, it will not be possible to close the criminal case through reconciliation of the parties.

Question 6: Convicted under the article Robbery by a group of persons by prior conspiracy, received a 4-year suspended sentence. After half the term had expired, the conviction was vacated. Can I be called up for contract military service?

Answer : Yes, you can. Legally, you are no longer convicted.

If a citizen’s criminal record is cleared, he no longer has a legal conviction and can, like other citizens, get a job, service, etc.

Signs of an agreement

A conspiracy is recognized as preliminary if it took place before the commencement of actions constituting the objective part of the act. The need to establish the existence, time and place of the agreement is determined by the importance of distinguishing between group types of crimes.

The content (volume) of the conspiracy may vary. Subjects can discuss specific elements of the attack and a plan of action. Conspiracy can cover an act only in general terms.

Organized group

It is distinguished from a group of perpetrators who have previously agreed on a crime by the stability of the structure. Thus, persons unite for a longer period to commit several acts or one, but require lengthy preparation or involve difficulties in execution.

Organization should be considered the subordination of some participants to others, the determination to jointly achieve criminal goals. Moreover, the scope of participation of each subject may be different. Individual members of the group can perform only part of the actions: pick locks, guard the scene of an assault, accept stolen valuables, etc. Other individuals can search for victims of assault. It must be taken into account that even if such actions do not go beyond the scope of complicity, but stable connections with other accomplices are clearly expressed, then they are regarded as co-perpetrator. Accordingly, the provisions of Article 33 of the Criminal Code are not subject to application.

SIGNS OF AN ORGANIZED CRIMINAL GROUP

V. BYKOV V. Bykov, Doctor of Law, Professor. An attempt has been made in the Criminal Code of the Russian Federation to formulate the concept of an organized criminal group. This is of great theoretical and practical importance, since in the norms of the Special Part of the Criminal Code, the commission of a crime by an organized group is a qualifying feature, which entails a more severe punishment. In 38 offences, this feature is indicated separately, and in another 34 offences, together with other types of criminal groups. In Art. 35 of the Criminal Code specifies four types of criminal groups: a group of persons, a group of persons by prior conspiracy, an organized group and a criminal community (criminal organization). It is important for law enforcement officials to know the signs of an organized criminal group and how this type of criminal group differs from others - a group of persons and a group of persons by prior conspiracy, for committing a crime as part of which the law establishes a lesser punishment than for committing a crime as part of an organized group. Article 35 of the Criminal Code of the Russian Federation establishes that “a crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes.” Thus, the law essentially defines only two characteristics of an organized group: the first is its stability and the second is that the purpose of joining the group is to commit one or more crimes. However, these two signs of an organized group are clearly not enough to distinguish it, for example, from a group of persons by prior conspiracy, since both have a certain stability and have united for the purpose of committing crimes. In addition, in the legislative definition of the concept of an organized criminal group, there is, in our opinion, a significant contradiction - a criminal group cannot be stable if it united to commit only one crime and then disintegrated. In our opinion, in this case such a group should be considered a group of persons who committed a crime by prior conspiracy. Apparently, understanding the difficulties of practical law enforcement officials in defining an organized criminal group, the Supreme Court of the USSR, and then the Supreme Court of the Russian Federation, in the relevant decisions of the Plenums, repeatedly tried to resolve this problem. Thus, one of the first interpretations of the signs of an organized criminal group was given in Art. 8 Resolution of the Plenum of the Supreme Court of the USSR No. 12 of November 30, 1990 “On the application by courts of legislation on liability for speculation”: “An organized group ... should be understood as a stable association of two or more persons for the purpose of speculation. The stability of such a group can be evidenced, in particular, by the preliminary planning of criminal actions, the preparation of means of implementing the criminal plan, the selection and recruitment of accomplices, including trade workers, the distribution of roles between them, the provision of measures to conceal crimes, subordination to group discipline and the instructions of the organizer of the crime. groups." Some of the indicated signs of an organized group (preparation for committing crimes, distribution of roles, subordination of group members to discipline and instructions of the organizer) can indeed be attributed to the signs of an organized criminal group. As for the selection and recruitment of accomplices, this cannot be a sign of an organized criminal group, since its composition has stabilized and the entry of new members into it, as well as exit from the group, is significantly difficult. For comparison, let’s say that the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 5 of April 25, 1995 “On some issues of the application by courts of legislation on liability for crimes against property” gives a slightly different concept of an organized group and its characteristics: “An organized group should be understood as a stable a group of two or more persons united by intent to commit one or more crimes. Such a group is characterized, as a rule, by a high level of organization, planning and careful preparation of the crime, and distribution of roles between accomplices.” Resolution of the Plenum of the Supreme Court of the Russian Federation No. 1 of January 17, 1997 “On the practice of application by courts of legislation on liability for banditry” also makes an attempt to formulate the characteristics of an organized criminal group. Considering a gang as an organized, stable armed group of two or more individuals who have united in advance to carry out attacks on citizens or organizations, the Resolution indicates that “the stability of a gang can be evidenced, in particular, by such signs as the stability of its composition, the close relationship between its members , the consistency of their actions, the constancy of the forms and methods of criminal activity, the duration of its existence and the number of crimes committed.” In our opinion, this Resolution also contains a number of controversial provisions regarding the characteristics of an organized criminal group. Thus, if one can agree with the indication of such a feature as the stability of the composition of a criminal group, then one cannot agree with the feature “constancy of forms and methods of criminal activity.” The fact is that it is an organized criminal group that turns out to be capable of using complex methods of committing crimes, of constantly changing and improving them. Therefore, there is no need to talk about the constancy of forms and methods of criminal activity. The Resolution in question indicates the duration of existence of a criminal group and the number of crimes committed as signs of stability, or it would be more correct to say organization. One should agree with this sign. At the same time, we note that this provision of the Resolution contradicts the norm of the criminal law formulated in paragraph 3 of Art. 35 of the Criminal Code of the Russian Federation, which states that an organized group can be created to commit one crime. The position of the Plenum of the Supreme Court of the Russian Federation on this issue once again confirms our proposal to exclude from paragraph 3 of Art. 35 of the Criminal Code of the Russian Federation indicates that a group that has united to commit one crime can be recognized as an organized group. Assessing the considered three Resolutions of the Plenums of the Supreme Courts of the USSR and the Russian Federation on the characteristics of an organized criminal group, one should come to the conclusion that they do not formulate a complete definition of the characteristics of an organized criminal group. It seems that the organized criminal group specified in paragraph 3 of Art. 35 of the Criminal Code of the Russian Federation, are characterized by the following features. Sustainability. This means, first of all, stability, constancy of the composition of the criminal group. The entry of new members into it is difficult due to the danger of failure of the entire group. At the same time, the criminal group has a sharply negative attitude towards the departure of any member from the group, seeing this as apostasy and betrayal of its interests. Constantly committing crimes is the goal of uniting the group. This is the second sign of an organized criminal group specified in the criminal law. The purpose of creating a group is to constantly commit crimes, constant criminal activity for profit. This leads the organized group to increase both the geography of the crimes committed and their number and intensity. There is a transition to committing increasingly serious and dangerous crimes, bringing more and more income to the group. Formation of the psychological structure of the group, promotion of a leader. Unlike such types of criminal groups as a group of persons and a group of persons by prior conspiracy, in an organized criminal group its psychological structure has already been formed and clearly expressed: the group is headed by a leader - its organizer and leader. He is joined by the most active members of the group (“authorities”), followed by ordinary members of the criminal group (“militants”, “bulls”, “soldiers”, etc.). In an organized criminal group, there may be a so-called “oppositionist” who fights for promotion to leadership, competes with the existing leader due to disagreement with the goals or methods of the group. The presence of a leader in a group who brings organization and purposefulness to criminal activity is one of the important signs of an organized group. It is the presence of a leader in the group that distinguishes an organized group from other types of criminal groups - a group of persons and a group of persons by prior conspiracy, since in them the leader has not yet emerged. Therefore, when assessing a criminal group as an organized one, practitioners must take measures to identify the leader. Distribution of roles when committing crimes. In an organized criminal group, some of its members participate in the preparation of a crime - for example, they conduct reconnaissance of an object, study its operating mode, develop methods for committing and concealing a crime; others directly commit a crime; still others provide storage, transportation and sale of stolen goods. Everyone knows their responsibilities, so the group acts in a coherent and organized manner. Preparation to commit a crime. An organized group, as a rule, carefully prepares the commission of a crime: it studies the object, the lifestyle of the victims, conducts reconnaissance of the location of the main valuables and studies the system of their protection, ensures quick escape from the crime scene, prepares places for storing the stolen property, etc. Using complex methods to commit crimes. Having a developed functional structure, an organized group can use complex methods of committing group and organized crimes associated with their lengthy preparation, the use of technical, transport and communication means, various tricks and tricks when committing and concealing crimes. Strict discipline. An organized criminal group is characterized by strict discipline of its members and unconditional submission to the leader. It is often supported in the most ruthless ways. Replacement of personal relationships with business ones based on joint commission of crimes. If in other types of criminal groups relations between group members are often built on the basis of personal sympathy and choice, then in an organized group personal relations are replaced by purely business ones, based on the joint commission of crimes. A unified value orientation is developed. Its members are mutually dependent, subject to general principles and norms of behavior. The group itself determines for all its members “what is good and what is bad.” Developing a common value orientation allows the group to act coherently and effectively during the commission of a crime, in conditions of risk. Distribution of criminal proceeds. If in a group of persons and a group of persons by prior conspiracy, criminal income is usually divided democratically and in equal shares, then in an organized group income is divided in accordance with the position of each member in the hierarchy of the group, in its structure: the leader takes most of the income, active members of the group receive more than ordinary members. Creation of a special monetary fund. In some organized criminal groups there is a special fund - a “common fund”, which is controlled by the leader. Money from the fund can be used to bribe officials, including law enforcement officials. From the same fund, financial assistance is provided to group members serving sentences, as well as members of their families. When assessing a criminal group as organized in practice, some difficulties may arise. The fact is that a criminal group is a living social organism that is constantly developing according to its inherent laws. Development proceeds from simple criminal groups - a group of individuals and a group of individuals by prior conspiracy - to more complex ones - an organized group and a criminal community (criminal organization). In their development, some criminal groups will be intermediate, transitional. In them one can find signs of both, for example, a group of persons in a preliminary conspiracy, and signs of an organized group. In specific criminal cases, criminal groups can be identified that have only some of the characteristics of an organized group. How should law enforcement officials evaluate such groups? It seems that in these cases one should first of all take into account the characteristics of an organized group specified in the law, and then most of the listed characteristics. Even if some of the signs of an organized criminal group are not established in a specific criminal case, this does not mean that such a group cannot be considered organized. For example, in individual groups there may be no common money fund or criminal proceeds are divided in equal shares, but this cannot serve as a basis for refusing to recognize the group as organized. Provided, of course, that the remaining characteristics of an organized group, especially those specified in the law, are established. LINKS TO LEGAL ACTS

“CRIMINAL CODE OF THE RUSSIAN FEDERATION” dated June 13, 1996 N 63-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on May 24, 1996) DECISION of the Plenum of the Supreme Court of the Russian Federation dated April 25, 1995 N 5 “ON SOME ISSUES OF APPLICATION OF LIABILITY LEGISLATION BY COURTS FOR CRIMES AGAINST PROPERTY" Plenum Resolution Supreme Court of the Russian Federation dated January 17, 1997 N 1 “ON THE PRACTICE OF APPLICATION OF LEGISLATION ON RESPONSIBILITY FOR BANDITISM BY COURTS” Legality, N 9, 1998

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Gang

This concept falls under the definition of an organized group. At the same time, a gang is distinguished by two mandatory characteristics: armament and the presence of criminal goals. In this case, the attack will be recognized as having taken place even when the persons did not use weapons. Criminal goals are considered to be encroachments (attacks) on organizations and citizens.

Stability in such cases presupposes the stability of the composition, the use of the same methods and forms of illegal activity, close connections between accomplices, and consistency of behavior.