Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 4, 2014 N 16

(as amended by the Resolution of the Plenum of the Supreme Court of the DPR dated November 17, 2017 No. 13)

In order to ensure uniform and correct application of legislation on criminal liability for thefts, robberies and assaults and in connection with issues that have arisen in judicial practice, the Plenum of the Supreme Court of the Donetsk People's Republic

DECIDES

provide the courts with the following explanations:

1. When considering cases of theft, robbery and robbery, which are the most common crimes against property, the courts should keep in mind that, in accordance with the law, theft is understood as the unlawful gratuitous seizure and (or) conversion of someone else’s property in favor of the offender committed for mercenary purposes. or other persons causing damage to the owner or other holder of this property. In each such case, the courts must examine the available evidence in order to correctly legally qualify the actions of persons guilty of committing these crimes, to avoid mistakes associated with misinterpretation of the concepts of secret and open theft of other people's property, as well as when assessing the circumstances provided for as signs of a crime, aggravating punishment.

2. The actions of a person who has committed an illegal seizure of property in the absence of the owner or other holder of this property or unauthorized persons, or although in their presence, but unnoticed by them, should be qualified as secret theft of someone else’s property (theft). In cases where these persons saw that a theft was being committed, but the perpetrator, based on the surrounding situation, believed that he was acting secretly, the act was also a secret theft of someone else's property.

The actions of a perpetrator who, seeing how the victim is losing property, for selfish reasons, takes possession of it and turns it into his illegal possession should also be qualified as theft (for example, the perpetrator sees how the victim, putting property in his pocket (bag), loses it, and he , seeing this circumstance, picks up the lost thing, that is, secretly takes possession of it and subsequently, for selfish purposes, turns the thing to his own benefit or to the benefit of third parties).

(paragraph two of paragraph 2 was introduced by Resolution of the Plenum of the Supreme Court of the DPR dated November 17, 2017 No. 13)

Courts should take into account that based on the content of paragraph 5.1 of the Resolution of the Council of Ministers of the Donetsk People's Republic dated August 16, 2016 No. 10-2 “On amendments to the Resolution of the Council of Ministers of the Donetsk People's Republic dated February 27, 2015 No. 2-22 “On the temporary procedure for applying on the territory of the Donetsk People's Republic of the Code of Ukraine on Administrative Offences", which entered into force on August 23, 2016, criminal liability for theft (in the absence of qualifying criteria) from August 23, 2021 occurs if the value of the stolen property exceeds one thousand five hundred Russian rubles.

(paragraph three of paragraph 2 was introduced by Resolution of the Plenum of the Supreme Court of the DPR dated November 17, 2017 No. 13)

At the same time, an increase by the legislator in the minimum amount from which criminal liability begins cannot be considered as the publication of a law eliminating or mitigating criminal liability for theft.

(paragraph four of paragraph 2 was introduced by Resolution of the Plenum of the Supreme Court of the DPR dated November 17, 2017 No. 13)

3. Open theft of someone else’s property, provided for in Article 173 of the Criminal Code of the Donetsk People’s Republic (robbery), is such theft that is committed in the presence of the owner or other owner of the property or in full view of strangers, when the person committing this crime is aware that those present at the persons understand the illegal nature of his actions, regardless of whether they took measures to suppress these actions or not.

4. If a person present during the illegal seizure of someone else’s property does not realize the illegality of these actions or is a close relative of the perpetrator, who therefore expects that during the seizure of property he will not encounter opposition from the said person, the act should be qualified as theft of someone else’s property. property. If the listed persons took measures to suppress the theft of other people’s property (for example, they demanded to stop these illegal actions), then the responsibility of the perpetrator for the act comes under Article 173 of the Criminal Code of the Donetsk People’s Republic.

5. If, during the commission of theft, the actions of the culprit are discovered by the owner or other owner of the property or other persons, but the culprit, realizing this, continues to commit illegal seizure of property or its retention, the act should be qualified as robbery, and in the case of the use of violence dangerous to life or health, or the threat of such violence - like robbery.

6. Theft and robbery are considered completed if the property is confiscated and the perpetrator has a real opportunity to use it or dispose of it at his own discretion (for example, turn the stolen property into his own favor or for the benefit of other persons, dispose of it for selfish purposes in another way).

Robbery is considered completed from the moment of an attack for the purpose of stealing someone else's property, committed with the use of violence dangerous to life or health, or with the threat of such violence.

7. Unlawful actions aimed at taking possession of someone else’s property not for mercenary purposes, but, for example, for the purpose of its temporary use with subsequent return to the owner or in connection with the alleged right to this property, do not constitute theft or robbery. Depending on the circumstances of the case, such actions, if there are grounds for it, are subject to qualification under Article 390 of the Criminal Code of the Donetsk People's Republic or other articles of the Criminal Code.

8. In cases where the illegal seizure of property was committed as a result of hooliganism, rape or other criminal acts, it is necessary to establish for what purpose the person seized this property. If a person pursued a selfish goal, what he did, depending on the method of acquiring property, should be classified collectively as a corresponding crime against property and hooliganism, rape or another crime.

9. If the organizer, instigator or accomplice did not directly participate in the theft of someone else’s property, the crime committed by the perpetrator cannot be classified as committed by a group of persons by prior conspiracy. In these cases, by virtue of part three of Article 33 of the Criminal Code of the Donetsk People's Republic, the actions of the organizer, instigator or accomplice should be qualified with reference to Article 32 of the Criminal Code of the Donetsk People's Republic.

10. When qualifying the actions of the perpetrators as the theft of someone else’s property by a group of persons by prior conspiracy, the court should find out whether such a conspiracy of accomplices took place before the start of actions directly aimed at stealing someone else’s property, whether there was an agreement on the distribution of roles in order to carry out the criminal intent, and also what specific actions were committed by each perpetrator and other accomplices of the crime. The verdict must evaluate the evidence regarding each perpetrator of the crime committed and other accomplices (organizers, instigators, accomplices).

11. Based on the meaning of part two of Article 34 of the Criminal Code of the Donetsk People's Republic, criminal liability for theft, robbery or assault committed by a group of persons by prior conspiracy also occurs in cases where, according to a preliminary agreement between the accomplices, one of them directly seizes property. If other participants, in accordance with the distribution of roles, carried out concerted actions aimed at providing direct assistance to the perpetrator in committing a crime (for example, the person did not enter the home, but participated in breaking doors, locks, bars, took out stolen property by prior agreement, secured other accomplices from the possible detection of the crime being committed), what they did is co-perpetration and, by virtue of part two of Article 33 of the Criminal Code of the Donetsk People's Republic, does not require additional qualifications under Article 32 of the Criminal Code of the Donetsk People's Republic. The actions of a person who was not directly involved in the theft of someone else's property, but who contributed to the commission of this crime with advice, instructions, or who promised in advance to hide traces of the crime, to remove obstacles not related to providing assistance to the direct perpetrators of the crime, to sell the stolen property, etc., should be qualified as complicity in the act in the form of complicity with reference to part five of article 32 of the Criminal Code of the Donetsk People's Republic.

12. When qualifying the actions of two or more persons who stole someone else’s property by theft, robbery or robbery by a group of persons by prior conspiracy or an organized group, the courts should keep in mind that in cases where a person who was not in the conspiracy, during the commission of a crime other persons took part in its commission, such a person should bear criminal liability only for specific actions committed by him personally.

13. If a person has committed theft, robbery or robbery through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances, his actions (in the absence of other qualifying criteria) should be qualified under the first parts of Articles 164, 173 or 174 of the Criminal Code of Donetsk of the People's Republic as the actions of the direct perpetrator of the crime (part two of Article 32 of the Criminal Code of the Donetsk People's Republic). Considering that the law does not provide a qualifying sign for the commission of theft, robbery or robbery by a group of persons without prior conspiracy, what was done in such cases should be qualified (in the absence of other qualifying signs specified in the dispositions of the relevant articles of the criminal code) under part one of article 164, part one of article 173 or part one of Article 174 of the Criminal Code of the Donetsk People's Republic. When rendering a verdict, the court, if there are grounds for this, provided for in part one of Article 34 of the Criminal Code of the Donetsk People's Republic, has the right to recognize the commission of a crime as part of a group of persons without prior conspiracy as an aggravating circumstance, with reference to paragraph “c” of part one of Article 62 of the Criminal Code of the Donetsk People’s Republic Republic.

14. A person who organized a crime or persuaded a participant in a crime who was obviously not subject to criminal liability to commit theft, robbery or robbery, in accordance with part two of Article 32 of the Criminal Code of the Donetsk People's Republic, bears criminal liability as the perpetrator of the crime. If there are grounds for this, provided for by law, the actions of the specified person must be additionally qualified under Article 156 of the Criminal Code of the Donetsk People's Republic.

15. If the use of weapons or objects used as weapons was covered by the intent of the perpetrators who committed a robbery by a group of persons by prior conspiracy, all participants in the crime committed are liable under the second part of Article 174 of the Criminal Code of the Donetsk People’s Republic as co-perpetrators even in the case where the weapon and other items were used by one of them.

16. If the intent of the perpetrators who committed a robbery by a group of persons by prior conspiracy included causing grievous harm to the health of the victim or taking his life, but only one of them caused grievous harm to health or death to the victim, the actions of all members of the group should be qualified under paragraph “c” part four of article 173 of the Criminal Code of the Donetsk People's Republic as co-perpetrator of robbery committed with infliction of grievous harm to the health of the victim. In this case, the actions of a person who caused serious harm to the health of the victim, resulting in his death through negligence, or who committed the murder of the victim, are also qualified under part four of Article 112 or paragraph “h” of part two of Article 106 of the Criminal Code of the Donetsk People’s Republic, respectively. In cases where a group of persons previously agreed to commit the theft of someone else’s property, but one of the co-perpetrators went beyond the scope of the agreement, committing actions that are subject to legal assessment as robbery or robbery, what they did should be qualified under the relevant paragraphs and parts of Article 173, 174 of the Criminal Code of the Donetsk People's Republic. If other members of the criminal group continued their participation in the crime, taking advantage of the violence used by the co-perpetrator or the threat of its use to seize the property of the victim or retain this property, they also bear criminal liability for robbery or robbery by a group of persons by prior conspiracy with the appropriate qualifying features.

17. When qualifying theft, robbery or robbery, respectively, under paragraph “a” of the fourth part of Article 164 or according to paragraph “a” of the third part of Article 173 or according to paragraph “a” of the fourth part of Article 174 of the Criminal Code of the Donetsk People’s Republic, the courts should keep in mind that the commission of one of these crimes by an organized group is recognized in cases where it involved a stable group of persons who had united in advance to commit one or more crimes (part three of Article 34 of the Criminal Code of the Donetsk People's Republic). Unlike a group of people who have agreed in advance to jointly commit a crime, an organized group is characterized, in particular, by stability, the presence in its composition of an organizer (leader) and a pre-developed plan for joint criminal activity, the distribution of functions between group members in preparing to commit a crime and carrying out criminal intent. The stability of an organized group can be evidenced not only by the long period of its existence, the repeated commission of crimes by members of the group, but also by their technical equipment, the duration of preparation of even one crime, as well as other circumstances (for example, special training of members of an organized group to enter a storage facility to seize money (currency) or other material assets).

If these crimes are recognized as committed by an organized group, the actions of all accomplices, regardless of their role in the crime, are subject to qualification as co-perpetrators without reference to Article 32 of the Criminal Code of the Donetsk People's Republic. If a person incited another person or group of persons to create an organized group to commit specific crimes, but did not directly participate in the selection of its participants, planning and preparation for committing crimes (crimes) or in their implementation, his actions should be qualified as complicity in the commission of an organized crime. group of crimes with reference to part four of article 32 of the Criminal Code of the Donetsk People's Republic.

18. The articles of the Special Part of the Criminal Code of the Donetsk People's Republic do not provide for the commission of two or more thefts, robberies and robberies as a circumstance entailing a more severe punishment. According to Article 16 of the Criminal Code of the Donetsk People's Republic, in case of aggregation of crimes, a person bears criminal liability for each crime committed under the relevant article or part of the article of the Criminal Code of the Donetsk People's Republic, punishment is assigned separately for each crime committed. In this case, the final punishment in accordance with parts two and three of Article 68 of the Criminal Code of the Donetsk People's Republic cannot exceed more than half the maximum term or amount of punishment provided for the most serious crime committed. Continuing theft, consisting of a number of identical criminal acts committed by taking someone else’s property from the same source, united by a single intent and collectively constituting a single crime, should be distinguished from a set of crimes.

19. In the case of theft, robbery or robbery under aggravating circumstances, provided for in several parts of Articles 164, 173 or 174 of the Criminal Code of the Donetsk People's Republic, the actions of the perpetrator in the absence of a real set of crimes are subject to qualification only in that part of these articles of the criminal code, which provides for more severe punishment. In this case, the descriptive part of the sentence must contain all the qualifying features of the act.

20. Illegal entry into a home, premises or other storage facility should be understood as an unlawful secret or open intrusion into them for the purpose of committing theft, robbery or robbery. Penetration into the specified buildings or structures can also be carried out when the culprit removes stolen items without entering the corresponding premises. When qualifying the actions of a person who has committed theft, robbery or robbery on the basis of “illegal entry into a home,” courts should be guided by the note to Article 142 of the Criminal Code of the Donetsk People’s Republic, which explains the concept of “dwelling,” and Note 3 to Article 164 of the Criminal Code of the Donetsk People’s Republic , which explains the concepts of “room” and “storage”.

21. When deciding whether the actions of a person who committed theft, robbery or robbery contain signs of illegal entry into a home, premises or other storage facility, the courts need to find out for what purpose the culprit was in the premises (dwelling, storage facility), as well as when the intent arose to take possession of someone else's property. If a person was there lawfully, without criminal intent, but then committed theft, robbery or robbery, this sign is absent in his actions. This qualifying feature is also absent in cases where a person ended up in a home, premises or other storage facility with the consent of the victim or persons under whose protection the property was located, due to family relationships, acquaintances, or was in the sales area of ​​a store, office and other premises open for visiting by citizens. If a person is found guilty of committing theft of someone else's property by illegally entering a home, additional qualifications under Article 142 of the Criminal Code of the Donetsk People's Republic are not required, since such an illegal action is a qualifying sign of theft, robbery or robbery.

22. If a person, while committing theft, robbery or robbery, illegally entered a home, premises or other storage facility by breaking doors, locks, bars, etc., what he did must be qualified under the relevant paragraphs and parts of Articles 164, 173 or 174 of the Criminal Code Donetsk People's Republic and additional qualification under Article 179 of the Criminal Code of the Donetsk People's Republic is not required, since the deliberate destruction of the specified property of the victim in these cases was a method of committing aggravated theft. If, during the commission of theft, robbery or robbery, the property of the victim was intentionally destroyed or damaged, which was not the subject of theft (for example, furniture, household appliances and other things), the act should, if there are grounds for this, be additionally qualified under Article 179 of the Criminal Code of the Donetsk People's Republic. If, during the theft of oil, oil products and gas from an oil pipeline, oil product pipeline, gas pipeline by cutting into pipelines, they are destroyed, damaged or rendered unfit for use, as well as technologically related objects, structures, communications, automation, alarm systems, which entailed or could entail a disruption of their normal work, then the act is subject to qualification according to the totality of crimes provided for in paragraph “b” of part 3 of Article 164 and Article 247 of the Criminal Code of the Donetsk People’s Republic.

23. Violence that is not dangerous to life or health (clause “d” of part two of Article 173 of the Criminal Code of the Donetsk People’s Republic) should be understood as beatings or other violent acts associated with causing physical pain to the victim or restricting his freedom (tying hands, use of handcuffs, leaving in a closed room, etc.). Violence dangerous to life or health (Article 174 of the Criminal Code of the Donetsk People's Republic) should be understood as violence that entailed the infliction of grave and moderate harm to the health of the victim, as well as the infliction of minor harm to health, causing a short-term health disorder or a minor permanent loss of general ability to work. . According to the first part of Article 1 of the Criminal Code of the Donetsk People's Republic, it is necessary to qualify an attack with the aim of taking possession of property, committed with the use of violence dangerous to life or health, which, although it did not cause harm to the health of the victim, however, at the time of use created a real danger to his life or health.

The use of violence during a robbery, as a result of which the victim is intentionally caused minor or moderate harm to health, is covered by robbery and does not require additional qualifications under Articles 116 or 113 of the Criminal Code of the Donetsk People's Republic. In these cases, the act is qualified under part one of article 174 of the Criminal Code of the Donetsk People's Republic, if there are no aggravating circumstances provided for by part two or three of this article. If, during a robbery with the aim of taking possession of someone else's property, the victim was inflicted with grievous harm to health, which resulted in his death due to negligence, the act should be classified as a set of crimes - under paragraph “c” of part four of article 174 and part four of article 112 of the Criminal Code of Donetsk People's Republic. In cases where the seizure of property is associated with a threat of violence that is of an uncertain nature, the question of recognizing the person’s actions as robbery or robbery must be decided taking into account all the circumstances of the case: the place and time of the crime, the number of attackers, the nature of the objects with which they threatened the victim , subjective perception of a threat, the commission of any specific demonstrative actions indicating the attackers’ intention to use physical violence, etc. If, during the theft of someone else’s property, a violent restriction of freedom is applied to the victim, the issue of recognizing the person’s actions as robbery or robbery must be decided taking into account the nature and degree of danger of these actions to life or health, as well as the consequences that have occurred or could occur (for example, leaving a tied victim in a cold room, depriving him of the opportunity to seek help).

24. If the actions of the person who committed theft, robbery or robbery have several qualifying features, including those provided for in different parts of the article (for example, robbery committed by a group of persons by prior conspiracy, with illegal entry into a home, with the use of weapons, etc.) etc.), in the descriptive and motivational part of the court decision, all established qualifying criteria should be listed, not limited to indicating only the most serious of them.

25. When qualifying the actions of the perpetrator under the second part of Article 174 of the Criminal Code of the Donetsk People’s Republic, the courts should, in accordance with the criminal law and on the basis of an expert opinion, establish whether the object used in the attack is a weapon intended to defeat a living or other target. If there are grounds for this, the actions of such a person must be additionally qualified under Article 256 of the Criminal Code of the Donetsk People's Republic.

Objects used as weapons should be understood as objects that could cause bodily harm to the victim that are dangerous to life or health (a penknife or kitchen knife, a razor, a crowbar, a baton, an ax, a flare gun, etc.), as well as objects , intended for temporary destruction of a target (for example, mechanical sprayers, aerosol and other devices equipped with tear and irritant substances). If a person only demonstrated a weapon or threatened with a obviously unusable or unloaded weapon or an imitation weapon, for example a dummy pistol, a toy dagger, etc., without intending to use these objects to cause bodily harm dangerous to life or health, his actions (in the absence of other aggravating circumstances), taking into account the specific circumstances of the case, should be qualified as robbery, liability for which is provided for in part one of Article 174 of the Criminal Code of the Donetsk People's Republic, or as robbery, if the victim understood that he was being threatened with an unusable or unloaded weapon or an imitation weapon.

In cases where, in order to steal someone else's property, a potent, poisonous or intoxicating substance dangerous to life or health is introduced into the victim's body against his will or by deception in order to bring the victim into a helpless state, the act must be classified as robbery. If, for the same purpose, a substance that does not pose a threat to life or health is introduced into the victim’s body, the act must be classified, depending on the consequences, as robbery combined with violence.

The properties and nature of the action of substances used in the commission of these crimes can, if necessary, be established with the help of an appropriate specialist or by expert means.

The actions of a person who committed an attack for the purpose of stealing someone else's property using dogs or other animals that pose a danger to human life or health, or with the threat of using such violence, must be qualified taking into account the specific circumstances of the case under the second part of Article 174 of the Criminal Code of the Donetsk People's Republic.

26. Draw the attention of the courts to the fact that, within the meaning of the law, liability under paragraph “d” of part two of Article 164 of the Criminal Code of the Donetsk People’s Republic occurs for committing theft from clothes, bags or other hand luggage that are only with a living person. If a person commits theft from clothing, a bag or other carry-on luggage after the death of the victim, his actions in this part do not form the specified qualifying feature.

The presence of property with the victim means that the clothes, bag or other hand luggage from which the property is stolen are on the victim, in his hands or in the immediate vicinity of the victim. Features of the victim’s condition (for example, sleep, intoxication, loss of consciousness, mental disorder, etc.) have no significance for qualifying the crime under paragraph “d” of part two of Article 164 of the Criminal Code of the Donetsk People’s Republic, since the use of the victim’s condition by the subject of the crime does not exclude his intent to steal from clothes, bags or other carry-on luggage and only indicates the secret nature of such theft.

27. When qualifying the actions of a person who committed theft on the basis of causing significant damage to a citizen, the courts should, guided by Note 2 to Article 164 of the Criminal Code of the Donetsk People's Republic, take into account the property status of the victim, the cost of the stolen property and its significance for the victim, the amount of wages, pensions, whether the victim has dependents, the total income of family members with whom he runs a joint household, etc. In this case, the damage caused to a citizen cannot be less than the amount established by the note to Article 164 of the Criminal Code of the Donetsk People's Republic. If the damage caused as a result of the theft does not exceed the specified amount or the damage did not occur due to circumstances beyond the control of the perpetrator, the act may be classified as attempted theft causing significant damage to a citizen, provided that the intent of the perpetrator was aimed at stealing property in a significant amount .

28. The commission of several thefts of someone else’s property, the total value of which exceeds two hundred and fifty thousand rubles, and in an especially large amount - one million rubles, should be qualified as theft on a large scale, if these thefts were committed in one way and under circumstances indicating an intention to commit theft in large or especially large. When deciding the issue of qualifying the actions of persons who have committed theft of someone else's property as part of a group of persons by prior conspiracy or an organized group on the basis of “causing significant damage to a citizen”, or on the basis of “on a large scale” or “on an especially large scale”, one should proceed from the general the value of what was stolen by all members of the criminal group.

If the person who committed the robbery or assault caused significant damage to the victim by stealing property, the value of which, by virtue of paragraph 4 of the note to Article 164 of the Criminal Code of the Donetsk People's Republic, is not large or especially large, committed in the absence of other aggravating circumstances specified in parts two , the third and fourth articles 173 and 174 of the Criminal Code of the Donetsk People's Republic, should be qualified accordingly in the first parts of these articles.

In cases where the person who committed robbery or assault had the goal of taking possession of property on a large or especially large scale, but actually took possession of property the value of which does not exceed two hundred and fifty thousand rubles or one million rubles, his actions must be qualified accordingly according to third article 29 of the Criminal Code of the Donetsk People's Republic and paragraph “e” of part two of article 173 or paragraph “b” of part three of article 173 as attempted robbery committed on a large scale or on an especially large scale, or under paragraph three of article 174 or paragraph “b” of part four of Article 174 of the Criminal Code of the Donetsk People’s Republic as complete robbery committed on a large scale or for the purpose of taking property on an especially large scale.

When determining the amount of stolen property, one should proceed from its actual value at the time the crime was committed. In the absence of information about the price, the value of the stolen property can be established on the basis of expert opinions.

The special historical, scientific, artistic or cultural value of stolen objects or documents (Article 176 of the Criminal Code of the Donetsk People's Republic) (regardless of the method of theft) is determined on the basis of an expert opinion, taking into account not only their value in monetary terms, but also their significance for history, science, art or culture.

Commentary to Art. 150 of the Criminal Code of the Russian Federation

The main object of the crime under Art. 150 of the Criminal Code of the Russian Federation are social relations related to ensuring the normal physical development and moral education of minors, and the health of a minor can be an additional object.

The objective side of the crime is characterized by a specific action - involving a minor in committing a crime - and a method - through promises, deception, threats or other means.

The role assigned to a minor by an adult (perpetrator, accomplice, etc.) to qualify the actions of the perpetrator under Art. 150 of the Criminal Code of the Russian Federation does not matter.

A promise should be understood as promises of a different nature related to the guilty person performing in the future actions favorable to the person involved: to transfer money or other property to the minor, including as payment for committing a crime; hide him after committing a crime, provide some assistance to his family or friends, etc.

Deception means providing a minor with knowingly false (in whole or in part) information that supports the teenager’s determination to commit a crime. For example, assuring a minor that, due to his age, he will not be held criminally responsible for his actions; persuading a minor to commit actions that do not seem criminal to him, for example, to take some valuable thing from the victim’s house, assuring the teenager that the victim does not want to give this thing away, but that it belongs and is needed by the sick mother of the adult from whom the request comes. In these cases, the minor does not realize that he is committing a crime due to his conscientious delusion in this regard, caused by deception on the part of the adult criminal. Deception can also occur in cases where a minor is aware of the criminality of his behavior. For example, an adult persuades a minor to commit a crime, convincing him that this is the only way he can help his loved ones get out of a difficult financial situation. Deception can also relate to the legal assessment of an act, when incorrect information is provided regarding the qualification of the act and possible punishment, etc. Options for deception can be very diverse, but their essence boils down to the fact that an adult gives false information to a minor regarding objective or subjective factors characterizing the act, and thereby forms in him an attitude to commit a crime.

Threat is understood as a warning to a minor that various kinds of adverse consequences will occur for him or his loved ones if he refuses to commit a crime. The threat can, for example, be expressed in the destruction or damage of property, disclosure of disgraceful information, etc. (except for the threat of physical violence, which is covered by Part 3 of Article 150 of the Criminal Code of the Russian Federation).

Another way of involving a minor in committing a crime may be associated, for example, with arousing in the latter a feeling of revenge, envy and other base motives that motivated him to commit a criminal act.

In practice, sometimes difficulties arise with defining the concept of “involvement.” Despite the fact that Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 14, 2000 No. 7 “On judicial practice in cases of juvenile crimes” Resolution of the Plenum of the Supreme Court of the USSR dated December 3, 1976 No. 16 “On the practice of application by courts of legislation in cases of crime minors and their involvement in criminal and other antisocial activities” was recognized as not valid on the territory of the Russian Federation, and seems to retain the practical significance of paragraph 10 of the Resolution of the Plenum of the Supreme Court of the USSR of December 3, 1976, that the involvement of a minor in the commission of a crime should be understood actions that arouse his desire to participate in the commission of one or more crimes, involving the use of physical or mental pressure (beatings, persuasion, assurances of impunity, flattery, threats, intimidation, bribery, deception, inciting feelings of revenge, envy or other base motives, giving advice on the place and methods of committing or concealing traces of a crime, promising to assist in the sale of the stolen property, etc.). If, despite the indicated influence, the teenager did not participate in the commission of a crime (at least at the stage of preparation or attempt), the actions of an adult should be regarded as an attempt to involve a minor in criminal activity. This provision does not contradict current legislation. This is also confirmed by the fact that the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 14, 2000 No. 7 no longer provides an explanation of the concept in question. In addition, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation in a number of its decisions noted that, within the meaning of the law, the involvement of a minor in a crime refers to the active actions of an adult aimed at inciting a desire in a teenager to commit a crime.

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Resolution of the Plenum of the Supreme Court of the USSR of December 3, 1976 N 16 “On the practice of application by courts of legislation in cases of juvenile crimes and their involvement in criminal and other antisocial activities” (as amended) // Judicial practice in criminal cases at 2 o’clock Part 1. Collection of resolutions of the Plenums of the Supreme Courts of the USSR, RSFSR and the Russian Federation / Comp. S.A. Podzorov. M., 2001.

See, for example: Review of cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2000 // Bulletin of the Supreme Court of the Russian Federation. 2001. N 7. P. 21.

At the same time, the position regarding the moment of the end of the crime, enshrined in the Resolution of the Plenum of the Supreme Court of the USSR, has changed. This is due to the fact that the elements of the crime in question are formal. Therefore, it is more correct to consider the crime completed from the moment of involvement (from the moment of committing the actions specified in the disposition of Article 150 of the Criminal Code of the Russian Federation) of a minor in the commission of a crime, regardless of whether he committed any crime or not.

When assessing the actions of an adult, it is necessary to pay attention to the fact that the involvement in the commission of a crime of not one, but several minors, within the meaning of the law, does not form a set of crimes provided for in Art. 150 of the Criminal Code of the Russian Federation.

The subjective side of the crime is characterized by guilt in the form of direct intent. The perpetrator is aware that he is involving a minor in the commission of a crime and desires this.

Paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 14, 2000 No. 7 states that when considering cases of juvenile crimes committed with the participation of adults, it is necessary to carefully clarify the nature of the relationship between an adult and a teenager, since this data can be significant for establishing the role of an adult in involving a minor in committing a crime. Persons who have reached the age of eighteen and committed a crime intentionally may be held criminally liable for involving a minor in the commission of a crime. It should also be established whether the adult realized or admitted that his actions were involving the minor in committing a crime. If an adult did not know about the minority of the person involved in the commission of a crime, he cannot be held accountable under Art. 150 of the Criminal Code of the Russian Federation.

This point of view of the Plenum is a logical continuation of the previously existing position of the Supreme Court of the Russian Federation, which indicated that from the subjective side, such crimes presuppose that an adult has direct intent to involve a minor, and for this he commits certain active actions related to direct mental or physical influence on minor.

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Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 26, 1992 “Crime under Art. 210 of the Criminal Code, can only be committed with direct intent” // Bulletin of the Supreme Court of the Russian Federation. 1993. N 1. P. 8.

In some cases, judicial practice when establishing the subjective side of a crime is based on the fact that a minor must be aware that he is being involved in the commission of a crime. And the absence of such awareness excludes the presence of elements of involvement of a minor in the commission of a crime. We cannot agree with this position, since according to Art. 150 of the Criminal Code of the Russian Federation, responsibility for involving a minor in the commission of a crime is borne by an adult if he was aware that by his actions he involved the minor in committing a crime, and wanted this.

The subject of the crime is special. By virtue of the direct instructions of the law, he is a sane person who has reached the age of eighteen.

Paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 14, 2000 No. 7 states that the commission of a crime using a person who is not subject to criminal liability due to age (Article 20 of the Criminal Code of the Russian Federation) or insanity (Article 21 of the Criminal Code of the Russian Federation), does not create complicity. At the same time, when a crime is committed by a minor who is not subject to criminal liability on the grounds stated above, the person who involved the minor in committing this crime, by virtue of Part 2 of Art. 33 of the Criminal Code of the Russian Federation bears responsibility for the act as a perpetrator who committed a crime through the use of other persons who are not subject to criminal liability. When inciting a minor to commit a crime, the actions of an adult, if there are signs of such a crime, must be qualified under Art. 150 of the Criminal Code of the Russian Federation, as well as according to the norm providing for liability for complicity (in the form of incitement) in the commission of a specific crime.

Part 2 of Art. 150 of the Criminal Code of the Russian Federation provides for increased criminal liability of parents, teachers and other persons who are charged by law with the responsibility for raising minors if they commit these crimes.

Parents should be understood as the father and mother who involve a minor in a crime (including those deprived of parental rights if they have not lost their influence on the minor), adoptive parents, as well as his adoptive parents.

It should be borne in mind that liability under Part 2 of Art. 150 of the Criminal Code of the Russian Federation should be borne not only by the teacher, but also by the person who performs educational functions in relation to a specific teenager involved in the commission of a crime (for example, the coach of a teenager involved in a sports section, the head of an art group in a leisure center, etc. ).

Persons performing educational functions in children's institutions for involving a minor in the commission of a crime may be in accordance with Art. 47 of the Criminal Code of the Russian Federation are deprived of the right to occupy these positions or are deprived of the right to engage in relevant activities.

Other persons should include a guardian (trustee), stepfather, stepmother, relatives of a minor who have taken the minor into permanent care and support and involve him in committing a crime.

The subject of the crime provided for in Part 2 of Art. 150 of the Criminal Code of the Russian Federation, special.

The involvement of minors in committing a crime may be accompanied by the use of physical violence (Part 3 of Article 150 of the Criminal Code of the Russian Federation). Physical violence can be expressed in beatings that do not result in short-term health impairment or minor permanent loss of general ability to work, intentional infliction of light or moderate harm to health, torture without aggravating circumstances, rape or sexual assault without aggravating circumstances.

If the health of the victim is intentionally caused grievous harm (Article 111 of the Criminal Code of the Russian Federation) or violence is committed in the form of torture under aggravating circumstances (Part 2 of Article 117 of the Criminal Code of the Russian Federation), or in the form of rape, or violent acts of a sexual nature under aggravating circumstances (Part Parts 2, 3 of Article 131, Parts 2, 3 of Article 132 of the Criminal Code of the Russian Federation), the involvement of a minor in a crime is qualified in conjunction with the specified articles of the Criminal Code of the Russian Federation.

The threat of violence includes the threat of beatings, causing harm to health of any severity, the threat of torture, rape, and committing violent acts of a sexual nature.

Particularly qualified (Part 4 of Article 150 of the Criminal Code of the Russian Federation) are acts related to the involvement of a minor in a criminal group (Article 35 of the Criminal Code of the Russian Federation) or in the commission of a serious or especially serious crime (Article 15 of the Criminal Code of the Russian Federation). The instruction on the involvement of a minor in a criminal group refers to the involvement in a group of persons without prior agreement, in a group of persons by prior agreement, as well as in an organized group and criminal community.

If a person has involved a minor in committing a crime under Art. 213 of the Criminal Code of the Russian Federation, his actions are subject to qualification according to the totality of crimes provided for in the relevant part of Art. 213 of the Criminal Code of the Russian Federation and Part 4 of Art. 150 of the Criminal Code of the Russian Federation (for involving a minor in a criminal group).

———————————

See: paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 15, 2007 N 45 “On judicial practice in criminal cases of hooliganism and other crimes committed out of hooligan motives” // Bulletin of the Supreme Court of the Russian Federation. 2008. N 1.

Particularly aggravating circumstances include the commission of a crime motivated by political, ideological, racial, national or religious hatred or enmity, or motivated by hatred or enmity against any social group. Involvement of minors in the commission of a crime for these reasons is also subject to qualification under Part 4 of Art. 150 of the Criminal Code of the Russian Federation.

Official website of the Supreme Court of the Russian Federation

Recognized as invalid by Plenum Resolution No. 1 dated 02/01/2011

RESOLUTION

PLENARY OF THE SUPREME COURT

RUSSIAN FEDERATION

№ 7

Moscow February 14, 2000

On judicial practice in cases of juvenile delinquency

(with amendments and additions made by resolution of the Plenum of February 6, 2007 No. 7)

In connection with the issues that arise for the courts when applying legislation in cases of juvenile delinquency, the Plenum of the Supreme Court of the Russian Federation decides:

1. Draw the attention of the courts to the need for increased attention to the timely and high-quality consideration of cases of juvenile delinquency. Legal proceedings in cases of this category should be based on strict compliance with the requirements of substantive and procedural legislation, maximally contribute to ensuring the interests, protecting the legal rights of minors, imposing fair punishment, and preventing the commission of new crimes.

For these purposes, it is necessary to constantly improve the professional competence and specialization of judges considering cases of juvenile crimes, to increase their personal responsibility for the legality and validity of each court decision.

2. When considering a petition from the preliminary investigation authorities to select a preventive measure in the form of detention in relation to a minor suspect or accused, the courts should carefully check the validity of the motives set out in it regarding the need to take the minor into custody and the impossibility of choosing another milder measure of restraint, bearing in mind , that by virtue of Part 2 of Article 108 of the Code of Criminal Procedure of the Russian Federation, such a preventive measure can be applied only in cases where a minor is suspected of committing a serious or especially serious crime. In exceptional cases, as the only thing possible under the given conditions, detention may be applied to a minor who has committed a crime of average gravity.

The court must take into account the requirements of Part 6 of Article 88 of the Criminal Code of the Russian Federation, within the meaning of which detention as a preventive measure cannot be applied in relation to a minor under 16 years of age, suspected or accused of committing a crime of minor or medium gravity for the first time, as well as in relation to other minors suspected or accused of committing a crime of minor gravity for the first time.

When deciding on the choice of a preventive measure for a minor suspect or accused, in each case the possibility of placing him under supervision should be discussed (Part 2 of Article 423 of the Code of Criminal Procedure of the Russian Federation).

Based on the specific circumstances of the case and the gravity of the crime, taking into account information about the identity of the minor, as well as the conditions of his life and upbringing, relations with his parents, the court, on the basis of Article 105 of the Code of Criminal Procedure of the Russian Federation, may apply as a preventive measure placing him under the supervision of parents, guardians, trustees or others , trustworthy persons, and located in a specialized children's institution - under the supervision of officials of this institution.

3. When considering cases of juvenile crimes, it should be taken into account that the participation of a defense attorney (lawyer) in such cases is mandatory from the moment of actual detention, arraignment, as well as during the trial, regardless of whether the accused has reached the age of majority by this time. This rule also applies to cases where a person is accused of crimes, one of which was committed by him before the age of 18, and the other after reaching the age of majority.

It should be borne in mind that the right to defense, exercised in accordance with Part 1 of Article 16 of the Code of Criminal Procedure of the Russian Federation, provides for the possibility of participation in the consideration of the case in court along with a defender (lawyer) of close relatives or other legal representatives of the minor (Article 48, Part 1 of Article 426 Code of Criminal Procedure of the Russian Federation), who are allowed to participate in the case from the moment of the first interrogation of a minor as a suspect or accused.

Failure to comply with the requirements of the law on the mandatory participation of a defender (lawyer) in cases of minors during the preliminary investigation and at the court hearing should be considered by virtue of paragraph 4 of part 2 of Article 381 of the Code of Criminal Procedure of the Russian Federation as a significant violation of the criminal procedural law, entailing the reversal of the sentence.

4. Excluded by resolution of the Plenum of February 6, 2007 No. 7.

5. In accordance with Article 428 of the Code of Criminal Procedure of the Russian Federation, parents or other legal representatives of a minor defendant are called to the court hearing, taking into account the obligation to establish the living conditions and upbringing of the minor defendant (clause 2 of part 1 of Article 421 of the Code of Criminal Procedure of the Russian Federation), representatives of the educational institution are also called to the court hearing -educational institutions or public organizations at the place of study or work of the minor. The court is obliged to notify the enterprise, institution and organization in which the teenager studied or worked, the commission on affairs of minors and the protection of their rights about the time and place of consideration of the case of a minor, and, if necessary, take measures to ensure the appearance of representatives of these organizations in court.

When deciding on the issue of summoning the legal representative of a minor defendant to the court hearing, it should be borne in mind that the list of persons who can be legal representatives contained in paragraph 12 of Article 5 of the Code of Criminal Procedure of the Russian Federation is exhaustive.

If a minor has no parents and lives alone or with a person not duly appointed as his guardian or trustee, the court must call a representative of the guardianship or trusteeship body as the legal representative of the minor, whose failure to appear does not suspend the consideration of the case, unless the court finds his participation necessary.

6. If a person who committed a crime under the age of 18 reaches the age of majority at the time of consideration of the case in court, the functions of the legal representative are terminated. However, these functions can be continued if the court decides to extend to persons aged 18 to 20 years the provisions contained in the law (Article 96 of the Criminal Code of the Russian Federation) on the peculiarities of the criminal liability of minors.

Having found it necessary to question the legal representative as a witness, the court issues a ruling on this and explains to him the provisions of Article 51 of the Constitution of the Russian Federation and Part 4 of Article 56 of the Code of Criminal Procedure of the Russian Federation. If a legal representative is interrogated, he is warned of criminal liability only for giving knowingly false testimony.

7. Courts must keep in mind that in accordance with paragraph 1 of part 1 of Article 421 of the Code of Criminal Procedure of the Russian Federation, establishing the age of a minor is among the circumstances to be proven in cases of minors. It should be taken into account that a person is considered to have reached the age at which criminal liability begins, not on his birthday, but after the day on which this day falls, i.e. from zero o'clock the next day.

When establishing the age of a defendant by a forensic medical examination, his birthday is considered to be the last day of the year named by the experts, and when determining the age of the minimum and maximum number of years, the court should proceed from the minimum age of such a person proposed by the experts.

It should also be taken into account that, according to Part 3 of Article 20 of the Criminal Code of the Russian Federation, if a minor has reached the age from which he can be brought to criminal responsibility, but has a mental retardation not associated with a mental disorder, limiting his ability to understand the actual nature and social danger of his actions (inaction) or direct them, he is not subject to criminal liability.

If there is evidence of mental retardation of a minor defendant, by virtue of Articles 195 and 196, part 2 of Article 421 of the Code of Criminal Procedure of the Russian Federation, a judicial comprehensive psychological and psychiatric examination is appointed to resolve the issue of the presence or absence of a mental retardation in the minor.

These questions can be put to the permission of an expert psychologist, and the question must necessarily be raised about the degree of mental retardation of a minor whose intellectual development does not correspond to his age.

8. When considering cases of juvenile crimes committed with the participation of adults, it is necessary to carefully determine the nature of the relationship between the adult and the adolescent, since this data may be significant in establishing the role of the adult in involving the minor in the commission of a crime or antisocial actions.

Courts should keep in mind that persons who have reached the age of 18 and committed a crime intentionally may be held criminally liable for involving a minor in the commission of a crime. It should also be established whether the adult realized or admitted that his actions were involving the minor in committing a crime. If an adult did not know about the minority of the person involved in the commission of a crime, he cannot be held accountable under Article 150 of the Criminal Code of the Russian Federation. Crimes for which liability is provided for in Articles 150 and 151 of the Criminal Code of the Russian Federation are completed from the moment a minor is involved in committing a crime or antisocial actions, regardless of whether he committed any of these illegal actions.

9. It must be borne in mind that committing a crime using a person who is not subject to criminal liability due to age (Article 20 of the Criminal Code of the Russian Federation) or insanity (Article 21 of the Criminal Code of the Russian Federation) does not create complicity. At the same time, when a crime is committed by a minor who is not subject to criminal liability on the grounds stated above, the person who involved the minor in the commission of this crime, by virtue of Part 2 of Article 33 of the Criminal Code of the Russian Federation, is responsible for the act as a perpetrator through indirect infliction.

When inciting a minor to commit a crime, the actions of an adult, if there are signs of corpus delicti, must be qualified under Article 150 of the Criminal Code of the Russian Federation, as well as under the law providing for liability for complicity (in the form of incitement) in the commission of a specific crime.

10. If the commission of a crime by minors was preceded by unlawful or provoking behavior of adults, including those recognized as victims in the case, the court has the right to recognize this circumstance as mitigating the punishment of the perpetrator, and also, if necessary, send private rulings to the place of work or residence of these persons.

It should also be taken into account that, according to paragraph “e” of Article 61 of the Criminal Code of the Russian Federation, mitigating circumstances include the commission of a crime as a result of physical or mental coercion, which does not exclude the criminality of the act, or due to the financial, official or other dependence of a minor, in connection with which When the court determines the fact of his involvement in the commission of a crime by adults, the question of the nature of the physical or mental coercion applied to the minor should be resolved.

At the same time, the courts must establish that such dependence or coercion actually took place, and the criminal actions of the minor themselves were forced, since his will was suppressed by the unlawful actions of an adult who involved the minor in committing a crime.

11. In order to ensure strict compliance with the requirements of criminal procedural legislation, including norms specifically regulating proceedings in cases of minors (Articles 420 - 432 of the Code of Criminal Procedure of the Russian Federation), cases of this category should be considered under the chairmanship of the most experienced judges.

The specialization of judges in cases of minors requires the need to ensure their professional competence through training and advanced training not only in matters of law, but also in pedagogy, sociology, and psychology.

12. When deciding on the imposition of punishment on minors, the court should discuss, first of all, the possibility of applying a punishment not related to imprisonment, bearing in mind not only the requirements set out in Article 60 of the Criminal Code of the Russian Federation (the nature and degree of public danger of the crime committed, data on personality, circumstances mitigating and aggravating punishment), but also the conditions provided for in Article 89 of the Criminal Code of the Russian Federation (living conditions and upbringing of a minor, level of mental development, other personality characteristics, influence of older persons). The court has the right to decide to impose a sentence of imprisonment on a minor only when his correction is impossible without isolation from society, necessarily motivating the decision in the verdict.

Courts need to more carefully study the possibilities of applying the grounds provided for in Articles 75 and 76 of the Criminal Code of the Russian Federation to release minors from criminal liability.

When imposing a sentence on a minor using Article 73 of the Criminal Code of the Russian Federation, in each case the courts should discuss the issue of imposing certain duties on the conditionally convicted person.

It should be borne in mind that, according to Article 61 of the Criminal Code of the Russian Federation, the minority of the perpetrator is a circumstance mitigating the punishment.

13. Courts should not allow cases of application of criminal punishment to minors who have committed crimes of minor or moderate gravity, if their correction and re-education can be achieved through the use of compulsory educational measures provided for in Article 90 of the Criminal Code of the Russian Federation.

14. A criminal case against a minor received by the court and terminated by the investigative authorities, the correction of which can be achieved through compulsory educational measures, in accordance with Part 2 of Article 427 of the Code of Criminal Procedure of the Russian Federation is considered by the judge alone. In this case, the prosecutor, the minor against whom the criminal prosecution has been terminated, his legal representative, and defense attorney must be summoned to the court hearing, and the opinions of the participants in the process on the possibility of limiting the use of compulsory educational measures must be heard.

15. When deciding on the possibility of releasing a minor from criminal liability with the use of compulsory educational measures in accordance with Article 90 of the Criminal Code of the Russian Federation, it is necessary to take into account that if the court comes to the conclusion that it is possible to correct a minor by applying educational measures to him, then the criminal case the specified grounds can be terminated both at the stage of preparation for the court hearing based on the results of the preliminary hearing, and as a result of the trial with a decision to apply these measures to the minor.

16. Courts should keep in mind that, in accordance with Article 90 of the Criminal Code of the Russian Federation, several compulsory measures of educational influence may be simultaneously imposed on a minor, for example, a warning and transfer to the supervision of parents, the imposition of an obligation to make amends for the harm caused and restriction of leisure.

When transferring a minor to the supervision of parents or persons replacing them, the court must make sure that these persons have a positive influence on the teenager, correctly assess what he has done, and can ensure appropriate behavior and daily control of the minor. To do this, it is necessary to request characterizing material, check the living conditions of the parents or persons replacing them, the possibility of financial support for the teenager, etc. Despite the fact that the law does not require the consent of parents or persons replacing them to transfer a minor to their supervision, such consent must be obtained by the court.

If the court makes a decision to terminate a criminal case and apply to a minor, as a compulsory educational measure, transfer to the supervision of parents or persons replacing them (relatives, guardians), or a specialized government body, or restrictions on leisure and the establishment of special requirements for behavior, the resolution must indicate the period during which the selected measure is applied.

17. In accordance with Article 432 of the Code of Criminal Procedure of the Russian Federation, the court has the right, having rendered a guilty verdict, to release the minor from punishment and, on the basis of Article 92 of the Criminal Code of the Russian Federation, to apply compulsory educational measures provided for in Part 2 of Article 90 of the Criminal Code of the Russian Federation, or to send him to a special educational institution closed type education management body.

It is necessary to take into account that minors convicted of committing crimes of only moderate or serious severity are sent to the specified special educational institution, with the exception of those specified in Part 5 of Article 92 of the Criminal Code of the Russian Federation, when they need special conditions of upbringing, training and require special pedagogical approach. Such a decision is made by the court in order to replace the punishment, the appointment of which in this case is not required (clause 3 of part 5 of Article 302 of the Code of Criminal Procedure of the Russian Federation).

18. When assigning a punishment to a minor, it should be borne in mind that in accordance with Part 4 of Article 18 of the Criminal Code of the Russian Federation, convictions for crimes committed by a person under the age of 18 are not taken into account when recognizing a recidivism of crimes, including in cases where the conviction has not been expunged or not repaid. Also, criminal records expunged or expunged in the manner prescribed by Article 86 of the Criminal Code of the Russian Federation are not taken into account.

19. If the preliminary investigation bodies, if there are grounds for this, did not involve parents, guardians, trustees, as well as medical institutions, social welfare institutions or other similar institutions that, by force of law, bear material liability for damage caused by the criminal actions of a minor, the court must make a ruling recognizing these individuals and organizations as civil defendants, explain to them the rights provided for in Article 54 of the Code of Criminal Procedure of the Russian Federation, and provide conditions for the exercise of these rights.

Draw the attention of the courts to the fact that, in accordance with Article 1074 of the Civil Code of the Russian Federation, minors from 14 to 18 years of age are independently responsible for the harm caused on a general basis, and only in cases where the minor does not have income or other property sufficient to compensate for the harm, he must be reimbursed in full or in the missing part by his parents. Therefore, the court should first of all discuss the possibility of compensation for harm to the minors themselves.

By virtue of Articles 21 and 27 of the Civil Code of the Russian Federation and Article 13 of the IC of the Russian Federation, minors who, at the time of causing harm, as well as at the time the court considered the issue of compensation for harm, had full legal capacity in the manner of emancipation or entered into marriage before reaching 18, bear independent responsibility for the harm caused. -years of age.

20. When considering the issue of compensation for moral damage caused as a result of the criminal actions of a minor, the courts must keep in mind that legal relations arising as a result of causing moral damage are subject to the general rules of § 1 of Chapter 59 of the Civil Code of the Russian Federation, in particular those provided for in Article 1074 of the Civil Code of the Russian Federation .

Moral damage caused by the actions of a minor aged 14 to 18 years, in accordance with Article 1074 of the Civil Code of the Russian Federation, is subject to compensation by the direct cause of harm. If his property is insufficient, additional liability may be assigned to his parents, adoptive parents, trustees, foster parents, or the institution that is his trustee, unless they prove that the damage did not arise through their fault.

The amount of compensation for moral damage is determined by the court, taking into account the nature of the physical and moral suffering of the victim, the degree of guilt of the minor offender and the persons supervising him, as well as the property status of the perpetrators and other noteworthy circumstances.

21. Courts need to increase the educational value of trials in cases of juvenile delinquency, paying special attention to their preventive impact; in each case, establish the reasons and conditions that contributed to the commission of a crime by minors; not to leave without response the shortcomings and omissions identified in the court hearing in the work of commissions on juvenile affairs and units for the prevention of juvenile delinquency, educational institutions and public organizations; make private determinations indicating the specific circumstances that contributed to the commission of a crime by a teenager and the persons through whose fault it became possible.

22. Within the meaning of Article 354 of the Code of Criminal Procedure of the Russian Federation, a complaint of a legal representative of a convicted minor or a victim admitted to participate in the case, who was 18 years old at the time of verification of the case in the court of second instance, is subject to consideration in the appellate and cassation procedures on a general basis.

Courts of cassation and supervisory instances must consider complaints from legal representatives regardless of the position taken in the case by the convicted minor or the victim.

23. Courts should systematically study and summarize the practice of considering cases of juvenile crimes and, if there are grounds for this, send submissions to the relevant organizations or officials to take measures to prevent juvenile crimes.

24. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the USSR dated December 3, 1976 No. 16 “On the practice of application by courts of legislation in cases of juvenile crimes and their involvement in criminal and other antisocial activities” shall be declared invalid on the territory of the Russian Federation, and also invalidate the resolution of the Plenum of the Supreme Court of the Russian Federation of December 25, 1990 No. 5 “On judicial practice in cases of juvenile crimes and their involvement in criminal and other antisocial activities” as amended by the resolutions of the Plenum of December 21, 1993 No. 11 and October 25, 1996 No. 10.

Chairman of the Supreme Court

Russian Federation V.M. Lebedev

Secretary of the Plenum, judge

Supreme Court

Russian Federation V.V. Demidov

Everything about criminal cases

Go to the list of all Plenums

Plenum of the Supreme Court of December 25, 2021 N 46

“On some issues of judicial practice in cases of crimes against the constitutional rights and freedoms of man and citizen (Article 137 of the Criminal Code

,
138 Criminal Code
,
138.1 Criminal Code
,
139 Criminal Code
,
144.1 Criminal Code
,
145 Criminal Code
,
145.1 Criminal Code
)"

TABLE OF CONTENTS

ARTICLE 137 CC

1) Draw the attention of the courts to the fact that, in accordance with Part 1

and
Part 2 137 of the Criminal Code,
criminal liability arises for the collection or dissemination of information about the private life of a person, constituting his personal or family secret, without his consent in the absence of those provided for by the
Criminal Procedure
Code and other federal laws (in particular, dated August 12, 1995
No. 144-FZ
“On operational investigative activities”, dated February 7, 2011 N 3-FZ “On Police”, dated November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation”) grounds for obtaining, using, providing information about the private life of citizens without their consent.

2) When deciding whether a person’s actions contain corpus delicti under Part 1

or
Part 2 137 of the Criminal Code
, the court must establish whether it was his intention that information about the private life of a citizen should be kept secret.

Taking into account the provisions of these norms of criminal law in their interrelation with the provisions of paragraph 1 of Article 152.2 of the Civil Code of the Russian Federation, the collection or dissemination of such information in state, public or other public interests cannot entail criminal liability,

as well as in cases where information about the private life of a citizen:

— previously became publicly available;

- either were made public by the citizen himself or at his will.

3) The collection of information about a person’s private life means deliberate actions consisting of obtaining this information in any way, for example by:

- personal observation,

- auditions,

- interviewing other people,

including recording information using audio, video, photographic means, copying documented information, as well as by stealing or otherwise acquiring it.

Dissemination of information about a person’s private life consists of communicating (disclosing) it to one or more persons orally, in writing or in any other form and in any way (in particular, by transmitting materials or posting information using information and telecommunication networks, including the Internet ").

ARTICLE 138 CC

4) When considering criminal cases of a crime provided for in Article 138 of the Criminal Code

, courts should keep in mind that the privacy of correspondence, telephone conversations, postal, telegraph or other messages is considered violated when access to correspondence, negotiations, messages is made without the consent of the person whose secret they constitute, in the absence of legal grounds for limiting the constitutional rights of citizens to the secrecy of correspondence, telephone conversations, postal, telegraph and other messages.

A violation of the secrecy of telephone conversations is, in particular, illegal access to information about incoming and outgoing connection signals between subscribers or subscriber devices of communication users (date, time, duration of connections, subscriber numbers, other data that allows identifying subscribers).

Illegal access to the content of correspondence, negotiations, messages may consist of familiarization with the text and (or) materials of correspondence, messages, listening to telephone conversations, audio messages, copying them, recording them using various technical devices, etc.

5) Under other messages in Article 138 of the Criminal Code

You should understand citizens' messages transmitted over electrical communication networks, such as SMS and MMS messages, fax messages transmitted via the Internet, instant messages, emails, video calls, as well as messages sent by other means.

6) Under Article 138 of the Criminal Code

illegal actions that violate the privacy of correspondence, telephone conversations, postal, telegraph or other messages of specific persons or an indefinite number of persons are subject to qualification if they are committed with
direct
intent. In this case, liability under this article occurs regardless of whether the information transmitted in correspondence, negotiations, messages constitutes a personal or family secret of the citizen or not.

ARTICLE 138.1 CC

7) Criminal liability under Article 138.1 of the Criminal Code

for the illegal production, acquisition and (or) sale of special technical means intended for secretly obtaining information, occurs in cases where these actions are carried out in violation of the requirements of the legislation of the Russian Federation (for example, Federal Laws of August 12, 1995 N 144-FZ “On operational investigative activities”, dated May 4, 2011 N 99-FZ “On licensing of certain types of activities”, resolutions of the Government of the Russian Federation dated July 1, 1996 N 770, dated March 10, 2000 N 214, dated April 12, 2012 N 287) without an appropriate license and not for the purposes of the activities of bodies authorized to carry out operational investigative activities.

Within the meaning of the law, technical devices (smartphones, voice recorders, video recorders, etc.) can be recognized as special technical means only if they are deliberately given new qualities and properties through technical modification, programming or other means, allowing them to secretly receive information.

In cases where special knowledge is required to establish that a technical device is one of the means intended (developed, adapted, programmed) for secretly obtaining information, the court must have the appropriate conclusions of a specialist or expert.

9) Explain to the courts that participation in itself in the illegal trafficking of special technical means cannot indicate a person’s guilt in committing a crime under Article 138.1 of the Criminal Code

, if his intent was not aimed at the acquisition and (or) sale of precisely such means (for example, a person, through a publicly accessible Internet resource, acquired a special technical device advertised as a household device, being conscientiously mistaken about its actual purpose).

Cannot be qualified under Article 138.1 of the Criminal Code

also the actions of a person who purchased a device intended for secretly obtaining information with the intention of using it, for example, for the purpose of ensuring personal safety, the safety of family members, including children, the safety of property or for the purpose of tracking animals and did not intend to use it as a means of assault on the constitutional rights of citizens.

ARTICLE 139 CC

10) Draw the attention of the courts to the fact that Article 139 of the Criminal Code

criminal liability is provided for entry into a home committed against the will of the person living there, in the absence of those provided for by the
Criminal Procedure
Code of the Russian Federation and other federal laws (in particular, Article 15 of the Federal Law of February 7, 2011 N 3-FZ “On Police”, Part 3 of Article 3 of the Housing Code of the Russian Federation, paragraphs 5, 6 of Part 1 of Article 64 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”) grounds for limiting the constitutional right to the
inviolability
of the home.

11) In accordance with the provisions of Article 139 of the Criminal Code

Criminal liability under this article entails illegal entry:

- in an individual residential building with its residential and non-residential premises (for example, a veranda, attic, built-in garage);

- to residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence (apartment, room, office premises, residential premises in a dormitory, etc.);

- to another room or building that is not part of the housing stock, but intended for temporary residence (apartments, garden house, etc.).

At the same time, illegal entry cannot be qualified under this article, in particular:

- into premises, buildings, structurally separate from an individual residential building (barn, bathhouse, garage, etc.), unless they were specially adapted or equipped for living;

- in premises intended only for temporary stay, and not for living in them (train compartment, ship cabin, etc.).

12) Within the meaning of Article 139 of the Criminal Code

illegal entry into a home can take place without entering it, but with the use of technical or other means, when such means are used to violate the inviolability of the home (for example, to illegally install a listening device or video surveillance device).

13) Taking into account the fact that criminal liability for violation of the inviolability of the home occurs:

- in the case when the culprit illegally enters a home, realizing that he is acting against the will of the person living in it;

- entry into a home committed by deception or abuse of trust is qualified under Article 139 of the Criminal Code

.

The actions of a person who is in a dwelling with the consent of the person living in it, but who refuses to comply with the requirement to leave it, do not constitute this crime.

14) Courts must keep in mind that when illegally entering a home, the intent of the perpetrator must be aimed at violating the right of citizens living in it to their integrity

. When deciding whether a person has such intent, one should proceed from the totality of all the circumstances of the case, including the presence and nature of his relationship with the citizens living in the premises or building, the method of entry, and others.

15) The actions of the perpetrator can be qualified under Part 2 139 of the Criminal Code

if violence or the threat of its use was committed at the time of the invasion of the premises or immediately after it in order to implement the intent to illegally enter the home.

ARTICLE 144.1 CC

16) Draw the attention of the courts to the fact that criminal liability under Article 144.1 of the Criminal Code

,
145 of the Criminal Code
for an unreasonable refusal to hire or unjustified dismissal of a person who has reached the pre-retirement age specified in the note to Article
144.1 of the Criminal Code
, as well as a obviously pregnant woman or a woman with children under the age of 3 years (mother, adoptive parent, woman - a guardian or adoptive mother raising one or more children under the age of 3) occurs only in cases where the employer was guided by a discriminatory motive related, respectively, to the person reaching pre-retirement age, the woman’s pregnancy, or the woman’s presence of children under the age of 3.

ARTICLE 145 CC

If the employment contract with the employee was terminated on his initiative, but there is evidence in the case that the employer forced the employee to submit a resignation letter of his own free will precisely in connection with his pre-retirement age, the woman’s pregnancy or the woman’s presence of children under the age of 3 years, such actions also form a crime under Article 144.1 of the Criminal Code

or
145 of the Criminal Code
, respectively.

ARTICLE 145.1 CC

17) Non-payment of wages, pensions, scholarships, benefits and other payments established by law partially (in the case when for more than three months in a row payments were made in the amount of less than half of the amount payable) or their non-payment in full (when more than two months in a row payments were not made or the amount payment of wages was lower than the minimum wage established simultaneously throughout the entire territory of the Russian Federation by federal law) is qualified accordingly according to Part 1

or
Part 2 145.1 of the Criminal Code
only when the specified acts are committed intentionally, out of selfish or other personal interest.

In this regard, among the circumstances

subject to proof and giving grounds for criminal liability under Article
145.1 of the Criminal Code
of the head of the organization or other person specified in this article must include:

— whether he has a real financial ability to pay wages and other payments;

- or the absence of such an opportunity due to his unlawful actions.

18) Courts should bear in mind that criminal liability in accordance with Article 145.1 of the Criminal Code

occurs, among other things, in cases of non-payment of wages and other payments to employees with whom an employment contract was not concluded or was not properly drawn up, but they began work with the knowledge or on behalf of the employer or his authorized representative (Article 16 of the Labor Code of the Russian Federation).

19) For the purposes of Article 145.1 of the Criminal Code

the period of formation of arrears in payments to an employee must be calculated based on the terms of payment of wages established by the internal labor regulations of the organization, a collective agreement, an employment contract, as well as from the time during which wages were not actually paid in whole or in part. In this case, the two-month or three-month period for delayed payments is calculated from the day following the established payment date. Periods of non-payment for individual months of the year cannot be summed up to exceed two or three months if they were interrupted by periods for which payments were made.

20) Deadlines

The statute of limitations for criminal prosecution for committing a crime under Article
145.1 of the Criminal Code
is calculated from the moment of its actual completion, in particular from the date of repayment of the debt, dismissal of the guilty person or his temporary removal from office. The dismissal of an employee who has not been paid wages does not affect the calculation of the statute of limitations for criminal prosecution of the employer.

21) Failure to pay wages to the same employees or to different employees partially for more than three months and in full for more than two months, if the act was covered by the single intent of the perpetrator, is qualified only under Part 2 145.1 of the Criminal Code

, and all the signs of the act must be given in the descriptive part of the guilty verdict.

In other cases, non-payment of wages partially and completely forms an aggregate

crimes provided for
in Part 1
and
Part 2 of 145.1 of the Criminal Code
.

TERMINATION OF BUSINESS BY 137

,
138
,
138.1
,
139
,
144.1
,
145
,
145.1 of the Criminal Code
22) In each criminal case of crimes against the constitutional rights and freedoms of man and citizen, the court must check whether there are grounds

to release the perpetrators from criminal liability.

Criminal cases of crimes under Part 1 137 of the Criminal Code

,
Part 1 138 of the Criminal Code
,
Part 1 139 of the Criminal Code
, Article
145 of the Criminal Code
, belong to the category of cases
of private-public
prosecution and, in accordance with
Part 3 20 of the Criminal Procedure Code
, are not subject to mandatory termination in connection with the reconciliation of the victim with the accused.
At the same time, in the cases provided for in Article 76 of the Criminal Code
, if a person has committed such a crime for the first time, which is a crime of
minor
gravity, has reconciled with the victim and made amends for the harm caused to him, then the court has the right, based on the statement of the victim, to terminate the criminal case against this person.

23) Courts when considering criminal cases of crimes provided for in Chapter 19

of the Criminal Code of the Russian Federation, one should respond to violations of the rights and freedoms of citizens guaranteed by the Constitution of the Russian Federation, as well as other violations of the law by issuing
private rulings
or resolutions to the relevant organizations and officials for them to take the necessary measures (
Part 4 29 of the Criminal Procedure Code
).

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