TASS DOSSIER. On March 26, 2021, former Minister of the Open Government of the Russian Federation Mikhail Abyzov was detained in a criminal case of theft of 4 billion rubles. The Investigative Committee of the Russian Federation charged him with committing crimes under Part 3 of Art. 210 and part 4 of Art. 159 of the Criminal Code of the Russian Federation (“Creation of a criminal community using official position” and “Fraud on an especially large scale”). The editors of TASS-DOSSIER have prepared material about Article 210 of the Criminal Code of the Russian Federation and high-profile cases of its enforcement.
Article 210
Article 210 “Organization of a criminal community (criminal organization) or participation in it (it)” has been included in the Criminal Code of the Russian Federation since its adoption in 1996. The peculiarity of this article is that criminal liability is established for the very fact of organizing a criminal community or participating in it, regardless of whether any crimes were committed.
Participation and organization (leadership) of a criminal community are classified as grave and especially grave crimes and can be punishable by up to life imprisonment.
According to the current version of Article 210 of the Criminal Code of the Russian Federation, the organizers and leaders of a criminal community face imprisonment for a term of 12 to 20 years, and members of such a criminal group - from five to ten years. At the same time, persons who have committed a crime using their official position can be sentenced to imprisonment for a term of 15 to 20 years, and those who occupy “the highest position in the criminal hierarchy” (Part 4 of Article 210) - up to life imprisonment. Article 210 also provides for punishment in the form of a fine of up to 1 million rubles for the leaders of a criminal group and up to 500 thousand rubles for its participants.
According to data from the Judicial Department of the Supreme Court of the Russian Federation, in 2017, 156 people were convicted under Article 210 of the Criminal Code, and 59 in the first half of 2021 (later data have not been published).
Organized groups and criminal communities: qualification issues
Most crimes in the sphere of economic activity include, as a qualifying feature, their commission by an organized group. Today, over five thousand organized criminal groups (communities, organizations) specialize in the legalization of income received from illegal activities. In this regard, the task of undermining the economic basis of organized crime acquires special significance, without which the fight against this socially dangerous phenomenon will continue to be just as ineffective. Meanwhile, the question of recognizing a group as organized in practice is associated with certain difficulties. Thus, on January 6, 1999, the Vakhitovsky District Court of Kazan convicted A.Kh. Ishkuvatov under clause “a”, part 2 of Art. 172 of the Criminal Code of the Russian Federation, finding him guilty of engaging in illegal banking activities committed by an organized group. The Judicial Collegium for Criminal Cases of the Supreme Court of the Republic of Tatarstan left the verdict unchanged. The Deputy Chairman of the Supreme Court of the Russian Federation in protest raised the question of changing court decisions regarding the conviction of Ishkuvatov A.Kh. at the specified point. And the Presidium of the Supreme Court of the Republic of Tatarstan on November 4, 1999 satisfied the protest, indicating the following. According to Part 3 of Article 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by an organized group if it was committed by a stable group of persons who united in advance to commit one or more crimes. However, the court’s conclusion that Ishkuvatov A.Kh. crimes as part of an organized group are not confirmed by the evidence set out in the verdict, and are not motivated by the court. It is clear from the verdict that between Ishkuvatov A.Kh. and the person against whom the criminal case was separated into separate proceedings had only a preliminary agreement to engage in illegal banking activities, but the court did not establish what exactly the criminal activity of the accomplice A.Kh. Ishkuvatov was. Under such circumstances, the actions of Ishkuvatov A.Kh. are subject to requalification from clause “a” of part 2 of article 172 of the Criminal Code of the Russian Federation to part 1 of article 172 (Bulletin of the Supreme Court of the Russian Federation. 2001. No. 10. P. 17.). The final decision in this case was correct for the following reasons. The definition of an organized group in Part 3 of Article 35 of the Criminal Code of the Russian Federation allows us to identify its following characteristics: a group of persons (two or more persons within the meaning of Article 19 of the Criminal Code of the Russian Federation); the sustainability of this group; the association of persons in advance to commit one or more crimes. In this case, stability means the duration and persistence of the criminal connection between the participants and is characterized by the presence of an organizer or leader of the group. “The organizer creates a group, selecting accomplices, distributes roles between them, establishes discipline, and the leader ensures targeted, planned and complex activities of both the group as a whole and each of its participants” (Gaukhman L.D., Maksimov S.V. Criminal responsibility for organizing a criminal community. M., 1997. P. 9; Gaukhman L.D. Qualification of crimes: law, theory, practice. M., 2001. P. 202.).
This conclusion was confirmed in the resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 “On judicial practice in cases of bribery and commercial bribery,” paragraph 13 of which states: “In accordance with the law (Article 35 | Criminal Code of the Russian Federation), an organized group is characterized stability, having a high degree of organization, distribution of roles, the presence of an organizer and leader” (Bulletin of the Supreme Court of the Russian Federation. 2000. No. 4. P. 7.).
Therefore, if none of the accomplices is charged with organizing and leading an organized group, then such a group cannot be classified as organized.
Due to the fact that none of the indicated signs of an organized group in the above case have been established, Ishkuvatov A.Kh. it was impossible to impute the commission of a crime as part of an organized group. It is characteristic that the UN Convention against Transnational Organized Crime (December 12-15, 2000, Palermo, Italy) gives the following definition: “Organized criminal group means a structured group of three or more persons, existing for a certain period of time and acting in concert for the purpose of committing one or more serious offenses or offenses established in accordance with this Convention in order to obtain, directly or indirectly, financial or other material benefit.” A serious crime is one punishable by imprisonment for a maximum term of at least four years or a more severe penalty. And a structurally formalized group is one in which the continuous nature of membership is stipulated or a developed structure is created (See: Ovchinsky V.S. XXI century against the mafia. M., 2001. P. 51-52.).
Of course, the above definition can be considered acceptable for crimes in the field of economic activity. According to the results of the study, every tenth crime in the field of economic activity is committed by criminal communities. How to qualify these crimes if they were committed by a criminal community? After all, there is no such qualifying feature in any composition of the Special Part of the Criminal Code. At the same time, according to Part 7 of Art. 35 of the Criminal Code of the Russian Federation, the commission of a crime by a criminal community entails a more severe punishment on the basis and within the limits provided for by the Code. In the literature and in practice, this issue is resolved as follows. When a criminal community (criminal organization) began its criminal activity and its members committed specific crimes that were part of its plans, the actions of these persons must be qualified in their entirety - under Art. 210 of the Criminal Code of the Russian Federation and the relevant articles of the Criminal Code, for example under Art. 105, 162, 206, etc. (See: Commentary on the Criminal Code of the Russian Federation / Edited by Yu.I. Skuratov, V.M. Lebedev. M., 1998. P. 478.).
Along with this, some authors believe that other crimes committed by those listed in Art. 210 of the Criminal Code of the Russian Federation by persons are qualified independently in conjunction with the same article (See: Scientific and practical commentary of the Criminal Code of the Russian Federation. M., 1998. P. 441). Consequently, the court will have to justify in this case the existence of an organized group (for example, Part 3 of Article 174, Part 3 of Article 174-1 of the Criminal Code of the Russian Federation), and the presence of a criminal community (Article 210 of the Criminal Code of the Russian Federation). However, it is reasonable to believe that it is impossible to do this at the same time - either an organized group or a cohesive organized group. If the defendants are members of an organized group (qualification under Part 3 of Article 174 or Part 3 of Article 174-1 of the Criminal Code of the Russian Federation), then why are they considered members of a criminal community (a close-knit organized group). This means that their actions should be qualified under Art. 210 of the Criminal Code of the Russian Federation is impossible. If we recognize them as participants in a criminal community, then why did they commit a specific crime (part 3 of article 174, part 3 of article 174-1 of the Criminal Code of the Russian Federation) “only” as part of an organized group. And again, the qualification of their actions in aggregate will cause bewilderment. Is it not these circumstances (including) that explain the extremely rare application of Art. 210 of the Criminal Code of the Russian Federation...
For these reasons, we cannot agree with some authors that including among the qualifying criteria such as committing a crime as part of a criminal community “is not caused by any necessity.”
Firstly, in their opinion, if a person commits a crime as part of a criminal community, his actions will be qualified under Art. 210 of the Criminal Code of the Russian Federation, which provides for fairly severe penalties.
Secondly, in none of the specific crimes provided for by the Special Part of the Criminal Code, such a qualifying feature, naturally, is not provided and, for the reasons stated above, this is not necessary (See: Vodko N.P. Criminal legal struggle with organized crime. M., 2000. pp. 57-58.).
However, it is necessary to take into account that usually operational investigations are initiated, and criminal cases are initiated not based on the facts of creation or participation in criminal communities, but on the facts of the commission of specific crimes by members of criminal organizations. And only then, during the investigation of these crimes, individual members of criminal organizations are additionally charged with Part 1 or 2 of Art. 210 of the Criminal Code of the Russian Federation (See: Larichev V.D., Sitkovets N.G. Issues of improving law enforcement practice under the article on responsibility for organizing a criminal community (criminal organization) / 10 years of the fight against organized crime, corruption and terrorism: Collection of the All-Russian Scientific Research Institute of the Ministry of Internal Affairs. M., 2000. P. 47-48.).
The foregoing allows us to propose defining a criminal community not through an organized group, but as a cohesive organization. Defining a criminal community through a criminal organization will allow, firstly, to draw a clear line between an organized group and a criminal community; secondly, avoid using (through brackets) two terms characterizing one concept; thirdly, to emphasize the cohesion and integrity of the criminal community.
Taking into account the above, it would be advisable to state paragraph 4 of Art. 35 of the Criminal Code of the Russian Federation as follows: “A crime is recognized as committed by a criminal community if it is committed by a cohesive organization created to commit grave or especially grave crimes.” Thus, it is proposed to abandon the identification of levels of organization (a cohesive organized group, an association of organized groups), so as in practice this only causes difficulties in proving. It is also necessary to introduce the qualifying feature “commitment of a crime by a criminal community” into all elements of grave and especially grave crimes. This is due to the fact that the validity of the proposals of individual authors on the qualification of the commission of other crimes within a community under the totality of Art. . 210 and the corresponding articles of the Special Part of the Criminal Code of the Russian Federation raises serious doubts.
The introduction of the qualifying feature “commitment of a crime by a criminal community” in all elements of grave and especially grave crimes will make it possible, for example, to qualify the commission of crimes by a criminal community under Part 3 of Art. 174, part 3 art. 174-1 of the Criminal Code of the Russian Federation, in conjunction with Art. 210 of the Criminal Code of the Russian Federation.
A. Arutyunov, lawyer
Journal "Legislation and Economics" No. 9 - 2002
Tougher punishment
In 2021, Russian President Vladimir Putin submitted to the State Duma draft amendments to the Criminal and Criminal Procedure Codes, which tighten responsibility for the creation and management of an organized criminal community. On March 14, the amendments were adopted by the State Duma of the Russian Federation, and on March 27, they were approved by the Federation Council. The law will come into force after it is signed by the president.
The Criminal Code is supplemented by a new article 210.1 (“Occupying a higher position in the criminal hierarchy”), which establishes a punishment for this crime in the form of imprisonment for a term of eight to 15 years with a possible fine of up to 5 million rubles. When imposing cumulative penalties, the maximum term of imprisonment cannot be more than 30 years, and for cumulative sentences - more than 35 years. In addition, the law provides that persons occupying a higher position in the criminal hierarchy cannot be given a sentence below the lowest limit or a suspended sentence.
A separate element of the crime is the rule relating to meetings of leaders and members of organized crime groups (so-called gatherings) for the purpose of committing at least one of the crimes provided for in Article 210 of the Criminal Code of the Russian Federation. The punishment for this is established in the form of imprisonment for a term of 12 to 20 years with a possible fine of up to 1 million rubles. In addition, fines for organizing and leading an organized criminal group, as well as for using an official position, are increasing - up to 5 million rubles. Participation in a criminal community will be punishable by imprisonment for a term of seven to 10 years with a fine of up to 3 million rubles.
Signs of PS
Signs of a criminal community:
- One of the main features of a PS is the cohesion of its members. There is a strong connection between them, based on a similar worldview and chosen ways of achieving goals. This connection guarantees the stability of the hierarchy within the team, which does not collapse under the influence of random incidents.
- Participants in society recognize themselves as a society that has its own common goals , in which everyone should participate.
- The presence of resources and various material means that are intended to commit criminal acts and conceal them.
- Each member knows and is aware of the responsibilities that are clearly assigned to him.
- Direction to commit a certain type of illegal act.
- Distribution over a large area .
Often criminal societies operate in the territories of several states. - Criminals can carry out their actions in the most sophisticated ways to avoid prosecution and ensure maximum benefit for themselves.
Differences between community and group
The laws of the Russian Federation do not establish a clear distinction between organized crime groups and organized crime groups. But lawyers often distinguish between them.
Criminal organizations are associations of groups of individuals who themselves form part of an organized criminal group. That is, the criminal community is several illegal organizations.
The main difference between an organized crime group and a PS is the multi-level complex structure within the group.
It may have its own divisions, each of which deals with the type of offense assigned to it.
Criminal societies are more cohesive than organized crime ; they have a strict hierarchical subordination necessary to keep several gangs under one command.
“Incorrect” behavior of bandits can be punished with the most severe sanctions, including murder.
In a criminal group, the leader himself often participates in committing illegal actions, while in a PS the leaders only organize them.
OPS are more vulnerable if the leaders are arrested or killed: then the society may cease to operate and disintegrate.
Forms of complicity in crime and their differences:
In what case can a person be completely released from liability?
To do this, three conditions must be met:
- The citizen of his own free will refused to continue participating in the community or gatherings of their leaders (if he did this under duress, then there can be no question of any release).
- He actively contributed to the investigation of the group’s activities (for example, he provided police with information about the members of the group, the crimes they committed, the money obtained or other property during the offenses, etc.).
- There were no signs of other offenses in his actions (if there are any, then he is liable under other articles of the Criminal Code of the Russian Federation).
Only if all these 3 conditions have been taken into account is the citizen exempt from having to answer under Art. 210 of the Criminal Code of the Russian Federation. If he does not comply with at least 1 of them, he will not be able to avoid punishment.
Crimes - what they are punished for
The objective side of the acts lies in the commission of the actions listed in Art. 210 of the Criminal Code of the Russian Federation.
The subjective side is characterized by direct intent , that is, the person was fully aware of the illegality of his actions and wanted their negative consequences to occur.
To qualify the act, the goal of the criminals plays a special role . It consists of committing one or more offenses classified as grave and especially grave. The motives for their actions are selfish, that is, they consist in the desire to receive some benefit.
The corpus delicti under Article 210 of the Criminal Code of the Russian Federation is formal . It will be considered completed at the moment all the listed actions in the commented article begin.
Objects, subjects and subjects of crimes
The subject of the act is the material and financial benefit received by the criminals from the criminal actions they have committed.
The objects of the offense are the life and health of citizens, and the optional objects are public material and financial benefits.
The subject of the act is defined as an individual who does not have any mental abnormalities and has reached 16 years of age. A teenager from 14 to 16 years old is punished under Art. 20 of the Criminal Code of the Russian Federation if he, together with others, participated in criminal activities as part of a group.
Qualification of offenses
Responsibility for organizing a criminal community or criminal organization occurs subject to taking into account the circumstances of the acts committed by them .
For example, if individuals, along with their community, organized an armed gang or led it, then their actions are qualified based on the totality of acts - under Article 209 (“Banditry”) and Art. 210 of the Criminal Code of the Russian Federation.
Features of determining punishments
The peculiarities include, first of all, the fact that persons bear criminal liability for the very fact of organizing a criminal society or joining it, regardless of whether they have committed other criminal acts.
For any participant in a criminal association, liability arises even if he knows nothing about the actions of other members of the group or the circumstances of the crimes they committed.
If he committed an offense that was not part of the plans of the entire community , then his actions are qualified as an excess of the perpetrator, and therefore he will be held responsible under another article of the Criminal Code of the Russian Federation. If the crime was part of the plans of the entire group, then in this case he will be held liable under Art. 210, and on the other, depending on the crime he committed.
