Punishment for preparation and attempt to commit a crime under the Criminal Code of the Russian Federation, Article 30

Commentary to Art. 30 of the Criminal Code of the Russian Federation

Commentary edited by Esakova G.A.
1. When qualifying preparation, it should be borne in mind that in this case the actions that constitute the preparation are not included in the objective aspect of the crime being prepared.

Instruments for committing a crime should be understood as objects directly used in the process of committing a crime, increasing the physical capabilities of a person. The means of committing a crime are objects, substances, energy and devices, the physical, chemical and other properties of which are used to commit a crime.

Purchasing should be understood as acquisition, regardless of the method, means or instruments of committing the crime. This can be a purchase, exchange, acquisition for temporary use, theft, etc. Manufacturing differs from mining in that the means and instruments necessary to commit a crime are created anew. Adaptation of means and instruments for committing a crime involves their conversion from objects already at the disposal of the perpetrator.

Finding accomplices means inducing third parties to commit a crime or recruiting them. If a person, due to circumstances beyond his control, failed to persuade other persons to commit a crime, then he is responsible for failed incitement, qualified as preparation for a crime (Part 5 of Article 34 of the Criminal Code).

Conspiracy means the creation of a group of persons, a group of persons by prior conspiracy or an organized group to commit a crime.

Other intentional creation of conditions for the commission of a crime means the removal of obstacles, study of the location of the alleged crime, and other activities aimed at ensuring the opportunity to commit a crime.

2. When qualifying preparation, it is necessary to distinguish it from the detection of intent, which has no criminal legal significance. In this case, the mere expression of intention, not supported by specific actions, cannot entail criminal liability.

3. An attempt differs from preparation in that it is an attack on an object protected by criminal law, and the actions during the attempt are included in the objective side of the crime being committed. The objective side of an attempt is characterized by three features: a) the action (inaction) is directly aimed at committing (executing) a crime; b) the commission (execution) of the crime is interrupted; c) the commission (execution) of a crime was interrupted due to circumstances beyond the control of the perpetrator.

4. In judicial practice, an unsuitable attempt is also distinguished: an attempt on an unsuitable object and an attempt with unsuitable means. An attempt on an unfit object is characterized by the fact that the real object, to which harm is intended, is not put in danger at all (for example, an attempt to “kill” a corpse or steal drugs mistakenly believed to be narcotic). An attempt with unsuitable means is an attempt to commit a crime with the help of such means and instruments that objectively in this particular case cannot cause harm (a factual error in the means of committing the crime). Both types of inappropriate attempt must be qualified as an attempt on the crime that the perpetrator intended to commit.

PROBLEMS OF CLASSIFICATION OF CRIMES IN CONDITIONS OF FACTUAL ERROR

IN CONDITIONS OF FACTUAL ERROR V.N. KURCHENKO V.N. Kurchenko, Ph.D., Chairman of the Judicial Collegium for Criminal Cases of the Sverdlovsk Regional Court. There is no rule on errors in the current criminal legislation. Therefore, questions about the concept, types and meaning of criminal legal errors are developed in the theory of criminal law. An error in criminal law literature is characterized as a “misconception”, or “incorrect assessment”, or “a person’s misconception” regarding the legal or factual circumstances of the socially dangerous act he commits (or regarding the social danger and illegality of the act) <*>. ——————————— <*> Fatkullina M.B. Legal and factual errors in criminal law: Qualification problems: Dis. Ph.D. legal sciences. Ekaterinburg, 2001. P. 18. An error is a wrong action, wrong thoughts. Criminal law is interested in such an error in the consciousness of the perpetrator, which, when mobilizing the will to commit an act, leads to an incorrect result. In case of an error, a person compares reality with the meaning about it and perceives and evaluates it in his own way, and ultimately the knowledge turns out to be incorrect. The reasons for the error are mainly subjective, which is reflected in its criminal legal significance. An error is distinguished by awareness, that is, the ability and possibility of foresight (correct, correct representation) by a person of the chain of events (their sequence), as well as their final assessment. The issue of error is closely related to the principle of subjective imputation, since the content of guilt includes not only true, but also erroneous ideas of a person about the nature of the act committed and its social significance. A mistake is an incorrect assessment by the person who committed the crime of his behavior, its consequences or the actual circumstances of the case; misconception of a person regarding the nature and degree of social danger of the act committed by him and its illegality. In the legal literature there are several classifications of errors in law according to various criteria. So, according to the reasons for their occurrence, they are divided into excusable (innocent) and non-excusable (guilty); in terms of significance and impact on qualifications - into significant ones, which change the qualifications of the act, and non-significant ones, which do not affect this qualification in any way. But the main classification of errors is carried out by subject. According to this criterion, they are all divided into legal and factual (errors in the factual circumstances of the case). A legal error is a person’s incorrect understanding of the criminality and punishability of an act, its qualifications and the limits of criminal liability for the act. There are three types of it: an error in the criminality of the act, an error in qualifications and an error in the punishability of the act. A factual error is a person’s misconception about the actual circumstances of an act and its consequences. In the legal literature, four varieties are distinguished: error in the object of the attack; mistake in the subject of the crime; mistake in the identity of the victim; error in the signs of the objective side. The following errors are distinguished in the signs of the objective side: 1. Error by rejecting an action. 2. Error in means. 3. Error in the development of a causal relationship. 4. Error in optional features of the objective side. Let's consider the so-called action rejection error. This is a type of factual error when the implementation of a criminal intent in relation to another victim occurs not due to the fact that the perpetrator mistakenly takes him for a person whom, for example, he intends to take the life of, but due to some other reasons that do not depend on him. The mistake of rejecting an action is somewhat reminiscent of a mistake in the identity of the victim. Here, too, the harm is caused to a person other than the one harmed by the accused. But in contrast to this error in personality, in case of an error by deviating an action, two persons are simultaneously exposed to the danger of harm: the one on whom the attack was committed, and the one to whom the harm was actually caused. For example, the culprit shot at a person, but missed, because the victim stepped to the side at the moment of the shot, and the bullet hit another person who was also there, causing him moderate harm. In this case, what was done must be qualified as an attempt on the crime that the perpetrator wanted to commit, and as careless actual causing of harm. In judicial practice, there are other options for qualifying an error by rejecting an action. Thus, by the verdict of the Sverdlovsk Regional Court, Loginov was convicted of attempted murder for mercenary motives in a generally dangerous manner under Art. 15, paragraphs “a”, “d” art. 102 of the Criminal Code of the RSFSR and according to Part 1 of Art. 109 of the Criminal Code of the RSFSR for intentional infliction of harm of moderate severity. Loginov climbed onto the roof of the house and, waiting for Azanova to appear at the entrance of the house, fired a aimed shot from a carbine in order to kill the victim. However, with this shot Loginov hit not Azanova, whom he was aiming at, but her husband Kokorev, who was next to her at that moment. Kokorev suffered a through-and-through gunshot wound to the axillary region, which caused moderate harm to his health <*>. ——————————— <*> Archive of the Sverdlovsk Regional Court of 1995. Case No. 2-26. In this case, the correct application of paragraph “d” of Art. 102 of the Criminal Code of the RSFSR. The danger of the method of murder should be assessed not in the abstract, but in the specific situation of the crime. Targeted shooting with a carbine bullet at one of the two citizens at the entrance of the house, when Azanova was standing 0.5 meters from Kokarev, did not indicate the danger of murder for many people. The culprit pursued the goal of taking the life of a certain person (Azanova). A generally dangerous method of murder is understood as a method of intentionally causing death, which the perpetrator knows to pose a danger to the life of not only the victim, but at least one other person. In this regard, the murder in this case, committed by an aimed shot taking into account the quality of the bullet charge and the distance to the victim, did not create a danger to the life and health of other persons and cannot be qualified on this basis. The danger must be real, not imaginary. K. was convicted of reckless murder of Sh. and attempted murder of O. and K. It was established that O. and K. attacked K. on the street, beat him, and later came to his house, shouted, called him for reprisal, they broke the glass in the window. K. grabbed the gun, loaded it with one cartridge, ran out into the street and shot at O. and K. who were running away. At that time, a group of young people, among whom was Sh, was walking up the slope of the ravine towards K.’s house. She was killed by buckshot . According to the circumstances that are set out, K. did not foresee, but could and should have foreseen the death of not only O. and K., but also other persons. In this case, a deliberate act aimed at killing O. and K. resulted in the death of Sh. This death was the result of K.’s negligence. The crime he committed was correctly qualified by the court in this part under Art. 106 of the Criminal Code of the RSFSR <*>. ——————————— <*> Borodin S.V. Responsibility for murder: Qualification and punishment under Russian law. M.: Lawyer, 1994. P. 159. Therefore, with the so-called rejection of an action, the question arises of recognizing the deprivation of life committed through negligence. An error in the identity of the victim in a murder does not change the form of guilt and does not affect qualifications. So, the error of rejecting an action is not associated with a mistake in the person whom the culprit wanted to take life, but with the presence of some other reasons that do not depend on the culprit. There is no mistake in the identity of the victim in the given example in the Loginov case. Since the culprit absolutely knew his victim, he visually kept her under his control. However, he underestimated the possible behavior of the victim, the available factors, and the environment in which this act was committed. In other words, there was an underestimation of the situation in which the crime was committed. We can agree that V.A. Yakushin emphasizes that in such cases there is no deviation in the actions of the perpetrator himself; only the object of criminal influence (the victim) is deviated. According to this scientist, it would be more correct to talk not about the deviation in the action of the perpetrator, but about the deviation of the object of influence (the victim) <*>. We share the view that, in essence, these cases represent an error in assessing the development of a causal relationship <**>. ——————————— <*> Yakushin V.A. Error and its criminal legal significance. Kazan University Publishing House, 1988. P. 88. <**> Soviet criminal law: General part / Ed. M.A. Belyaev and M.I. Kovaleva. M.: Legal. lit., 1977. P. 200. Error in means. An error in means is expressed in the use by a person of a means other than what was planned to commit a crime <*>. ——————————— <*> Criminal law: General part: Textbook for universities / Rep. ed. AND I. Kozachenko, Z.A. Neznamova, G.P. Novoselov. M.: INFRA-M-NORMA Publishing Group, 1997. P. 210. By mistake, another means is used, which is equally suitable for achieving a criminal result. For example, if, with the intention of committing murder, the perpetrator used another poison instead of one poison. Such an error in means does not change the essence of the act and its qualifications. For criminal law, in principle, it makes no difference whether, for example, a murder was committed with poison or a pistol. To commit a crime, a means is used, the strength of which, in the erroneous view of the subject, appears to be underestimated. If a means is used, the strength of which is mistakenly underestimated by a person, the act is classified as careless infliction of harm. For example, wanting to cause bodily harm, the perpetrator shoots at the victim, confident that the gun is loaded with salt, although it actually contains a live charge, as a result of which the victim is mortally wounded <*>. ——————————— <*> Criminal law. Part General: In four volumes. Volume 2: Limits and types of differentiation of criminal liability / Rep. ed. AND I. Kozachenko. Ekaterinburg, 1992. P. 68. To commit a crime, a means that turns out to be unsuitable is used by mistake. Lopatina, based on personal hostility, decided to kill her friend Churikov. Implementing her intention, she armed herself with a gas revolver of the RG-9 brand, being sure that the weapon was military. She invited Churikov to lie down on the sofa, covered his head with a pillow to reduce noise and, with the aim of taking his life, fired a shot in the victim’s head. As a result of the shot, the pillow caught fire, after which Churikov disarmed Lopatina, snatching the gas revolver from her hand. Lopatina was unable to complete her intent to kill for reasons beyond her control, since the shot was fired through the pillow by the gas contained in the cartridge of a loaded revolver. The court found that Lopatina committed attempted murder. Due to her age (19 years) and life experience, she was aware that with a shot from a revolver she was depriving the victim of his life, she wanted this, but did not achieve a criminal result due to a misconception regarding the properties of the weapon used <*>. ——————————— <*> Archive of the Sverdlovsk Regional Court. 2000. Case No. 2-359. Means that are unsuitable for committing crimes and are mistakenly accepted by the subject as those with the help of which a criminal result can be achieved are called in the literature unsuitable means or an attempt with unsuitable means. The criterion for distinguishing between an attempt on an unsuitable object and an attempt with unsuitable means is in the nature of the reasons for not completing the crime. Many errors in judicial practice are caused by the understanding of an attempt on an unfit object, when, in particular, due to the special properties of the subject of the attack, the actions of the perpetrator do not encroach on the intended object of criminal legal protection and cannot actually cause harm to it. The peculiarity of such an unworthy attempt is that the crime cannot be completed due to a factual error made by the perpetrator. For example, if the culprit, while stealing a weapon unfit for functional use (ammunition, explosives), was mistaken about its quality, believing that it was serviceable, his actions constitute an attempted theft of a weapon. The option of a bad attempt is provided for in paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 of February 10, 2000 “On judicial practice in cases of bribery and commercial bribery.” If a person receives money or other valuables from someone, allegedly for transfer to an official or person performing managerial functions in a commercial or other organization, as a bribe or the subject of commercial bribery and, without intending to do so, appropriates them, what he has done should be qualified as fraud. The actions of the owner of valuables in such cases are subject to qualification as an attempt to give a bribe or commercial bribery <*>. ——————————— <*> Commentary on the Resolution of the Plenum of the Supreme Court of the Russian Federation (RSFSR) on criminal cases. M.: NORMA, 2001. P. 36. Defendants Shaulsky and Kuznetsov were police officers. Shaulsky held the position of senior investigator, Kuznetsov previously held the position of investigator in the same department, but then, by order of the head of the Internal Affairs Directorate of the city of Yekaterinburg, he was transferred to the position of senior inspector-programmer, but continued to remain in the investigation department. Shaulsky, believing that Kuznetsov was legally engaged in the investigation and was an official, entered into a criminal conspiracy with him to receive a bribe from Grachev, for whom he chose a preventive measure in the form of a recognizance not to leave. Kuznetsov, in violation of the criminal procedural law, conducted an inquiry into a criminal case charging Grachev under Part 1 of Art. 167 of the Criminal Code of the Russian Federation. Shaulsky, in agreement with Kuznetsov, demanded a bribe from Grachev in the form of money for the election of a recognizance not to leave. Grachev, in the presence of Kuznetsov, gave Shaulsky 1000 rubles. The Sverdlovsk Regional Court recognized that Shaulsky took part as an accomplice in receiving 1,000 rubles. He believed that Kuznetsov was an official and was lawfully conducting an investigation into Grachev’s criminal case. Shaulsky received the money as a bribe and handed it over to Kuznetsov. But the latter was not the investigator, therefore Shaulsky’s actions are qualified as attempted complicity in receiving a bribe under Part 3 of Art. 30, part 5 art. 33 and part 1 of Art. 290 of the Criminal Code of the Russian Federation. Kuznetsov performed procedural actions in relation to Grachev that were not within the scope of his official powers, was not an official and was not the subject of receipt

Exclusivity as a property of the legal force of judicial decisions"

Comments on laws »

Necessary clarifications

In order to better understand specific situations related to unfinished crimes, it is necessary to carefully study Art. 30 of the Criminal Code of the Russian Federation with comments. These explanations provide a detailed description of each of the concepts used. For example, what is meant by an unfinished crime? This does not mean at all that the person who tried to commit it suddenly changed his mind on his own initiative (due to fear, pity or indecision). Not at all.

It’s just that objective circumstances have developed in such a way that certain obstacles have arisen to completing the criminal actions that have begun. For example, it was raining heavily or there were strangers nearby whose presence did not allow us to continue what we had planned. In addition, the comments describe four types of assassination attempts:

1. Unfinished. The subject did not have the opportunity to complete the initiated actions, so they did not lead to a harmful result (for example, the citizen took aim, but did not shoot because he was detained).
2. Finished, when the action was objectively carried out, but the expected consequences, dangerous for society, never occurred (the offender shot and missed).
3. An assassination attempt committed with inappropriate means. That is, they, in fact, cannot harm anyone.
4. An attempt that was made on an unusable object. The subject of the crime has lost its properties or is completely absent.

Reading such explanations makes the essence of this article clearer.

Article 30. Preparation for a crime and attempted crime

• home
• Laws and regulations
• Criminal Code of the Russian Federation
• Article 30. Preparation for a crime and attempted crime

1. Preparation for a crime is the search, manufacture or adaptation by a person of means or instruments for committing a crime, the search for accomplices to a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to reasons beyond the control of this person. circumstances.
2. Criminal liability arises for preparation only for grave and especially grave crimes.

3. An attempted crime is the intentional actions (inaction) of a person directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of this person.

Commentary on Article 30

In Part 1 of Art. 30 of the Criminal Code of the Russian Federation, preparation for a crime is defined as the search, manufacture or adaptation by a person of means or instruments for committing a crime, the search for accomplices to a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to circumstances beyond this faces to circumstances.

Thus, from the objective side, preparation can be expressed either in one of these actions or in their combination.

The search for means or instruments for committing a crime is understood as any action to establish the location of the necessary instrument or means, as well as to acquire them in any form. The acquisition can be either legal (for example, the purchase of various chemical components for the manufacture of explosives) or illegal (for example, the theft of weapons), compensated or gratuitous. The instrument of a crime are objects directly used in the commission of a crime (for example, a weapon in murder, robbery). The means of committing a crime include tools, devices, processes of the external world that the subject uses to influence the object of the attack (for example, a car for removing stolen property, fake documents for committing fraud, etc.) <1>.

———————————

<1> See also: Legal encyclopedic dictionary / M.O. Buyanova et al. M.: TK Welby; Publishing house "Prospekt", 2006. pp. 670 - 671.

In different situations, the same object can act as both an instrument and a means of committing a crime. For example, a rope can serve as a murder weapon, but it can also act as a means of suppressing the resistance of the victim during a kidnapping. Therefore, the main difference between an instrument and a means of committing a crime is their intended purpose. An instrument for committing a crime is an object with the use of which the objective side of the crime is directly carried out. The means of committing a crime are intended to facilitate its commission, to facilitate the commission of a criminal act.

Manufacturing is the process of creating the required item from materials or substances that do not initially possess the properties of the item being manufactured (for example, the production of forged documents, weapons, master keys, etc.).

Adaptation consists of making such changes to an object that improve its properties used to commit a crime. Thus, the device is the processing and sharpening of fittings for committing a murder, the conversion of a gas pistol into a firearm, the conversion of a key for entering a home, etc.

Finding accomplices to a crime differs significantly in content from the concept of finding instruments or means of committing a crime. Unlike the search for tools or means, the search for accomplices includes actions to identify persons with the required skills or properties, as well as establishing their location or method of communication with them. In turn, the “acquisition” of accomplices constitutes an action such as conspiracy to commit a crime. Therefore, conspiracy can be considered as a subsequent stage in finding accomplices. Conspiracy is an agreement between two or more people to commit a crime. From this position, it can be considered as the result of a certain activity that led to an agreement on joint action. But collusion can be expressed not only in reaching an agreement to participate in a crime. The very process of forming a person’s will to participate in a crime, regardless of the voluntariness of consent to complicity, is also considered preparation in the form of a conspiracy. In this regard, as a process, conspiracy can be expressed in persuasion, deception, threats, blackmail, etc.

Other intentional creation of conditions for the commission of a crime can represent a wide variety of actions and inactions. In this case, one should proceed from the fact that the conditions for committing a crime can serve both to facilitate the commission of a crime and to conceal it. In practice, deliberate creation of conditions for the commission of a crime includes all other actions in preparation for a crime that are not specified in the law. They cannot be specified in full, therefore, when defining preparation, the legislator only gives examples of actions that constitute preparation, leaving the list of such actions open.

The main condition that makes the actions discussed above an independent stage of the commission of a crime, which in some cases gives grounds for criminal liability, is the failure to complete the crime due to circumstances beyond the control of the person, i.e. these must be external circumstances independent of the will of the person. Otherwise, a voluntary refusal to commit a crime and exclusion of criminal liability for committing preparatory actions is possible.

As noted above, preparation represents actions whose purpose is to create conditions for the commission of a crime. And therefore, from the subjective side, preparation is characterized only by intent. The person is aware that he is committing initial actions to commit a crime, is aware of the social danger of such actions and wants to commit them.

Taking into account the fact that preparation for a crime is only the creation of conditions for its subsequent commission, this stage of the crime represents the lowest degree of public danger compared to others. In some cases, this degree is so low that the act does not reach the level of a crime. Therefore, Part 2 of Art. 30 of the Criminal Code of the Russian Federation establishes that criminal liability arises for preparation only for a serious and especially serious crime.

At the same time, actions that constitute the objective side of preparation may also fall under the elements of an independent crime. So, if a person forged an official document, but due to circumstances beyond his control did not actually use this document, the act should be qualified under Part 1 of Art. 327 of the Criminal Code of the Russian Federation. The act must be qualified in accordance with Part 1 of Art. 30 of the Criminal Code of the Russian Federation as preparation for fraud, if the circumstances of the case indicate that the person’s intent included the use of a forged document to commit crimes under Part 3 or 4 of Art. 159 of the Criminal Code of the Russian Federation.

Attempted crime in accordance with Part 3 of Art. 30 of the Criminal Code of the Russian Federation are intentional actions or inaction of a person directly aimed at committing a crime, if the crime was not completed due to circumstances beyond the control of this person. Based on this formulation, it is quite difficult to distinguish between the stages of preparation and attempt, since all actions called preparation are also aimed at committing a crime. The basis for the difference is laid by the legislator in the term “directly”. This means that the border between preparation and attempt is determined by the objective side of the crime. Any action or inaction that lies outside the objective side of the crime can only be regarded as preparation, and from the moment the act that forms the objective side of the crime begins, the stage of the attempt begins. It is possible to determine which actions (inactions) constitute the objective side as follows. In most cases, they are named in the disposition of the article of the Special Part of the Criminal Code of the Russian Federation, which provides for liability for the crime committed. The exceptions are simple, blanket and reference dispositions. To determine the content of the objective side of crimes provided for by such norms, one should refer to another norm of the Criminal Code of the Russian Federation (for reference ones) or to another normative source (for blanket ones). In simple dispositions, one should proceed from theoretical definitions and established practice of interpreting the objective side of a particular crime.

It is possible to qualify an act as an attempt in cases of factual error, i.e. misconception of the person committing the crime about the specific features and circumstances of the crime. For example, libel, being a formal crime, is the dissemination of knowingly false, defamatory information about another person. Distribution is considered completed when the defamatory information is brought to the attention of a third party. If a person orally conveys such information, without knowing it, to a deaf person who is unable to perceive it, i.e. commits acts of dissemination, but the information does not reach third parties, his actions constitute an attempt at libel.

Thus, the following characteristic features of the assassination attempt can be identified. Firstly, an attempt is a real, direct attack on an object protected by criminal law. As a rule, the objective side of an attempt is expressed in action. But an attempt can also be made through inaction. The most typical example of inaction during an attempt is a situation when a mother, wanting to cause the death of her child, stops feeding him, but death does not occur as a result of the intervention of third parties.

Further, an attempt is characterized by either failure to carry out all actions in full, which, in the opinion of the perpetrator, is necessary to complete the criminal act, or the non-occurrence of those consequences that were covered by the intent of the perpetrator. For example, a person, intending to commit a theft, tries to break into a safe, but his actions are interrupted by police officers. In this case, not all actions necessary to complete the theft have been completed. If the culprit managed to break into the safe, but there was no money in it, then there are no socially dangerous consequences in full, since the actions committed did not cause damage. If the culprit discovers in the safe a smaller amount of money, the theft of which he expected, damage will occur, but not to the extent covered by the intent of the culprit.

Consequently, another sign of an attempt is the non-infliction of real harm to an object protected by criminal law or the infliction of harm not to the full extent of what was intended.

The last sign of an attempt is the incompleteness of the attack due to circumstances beyond the control of the perpetrator. This criterion allows us to establish the presence of a voluntary renunciation of a crime at the attempted stage. Thus, if the criminal failed to enter the premises with the purpose of committing theft and he decides to postpone committing it in order to select more effective burglary tools, there is an attempted crime and the absence of voluntary refusal, since the crime was not completed due to the circumstances, independent of the will of the perpetrator. If, under the same circumstances, he decides to completely refuse to commit theft, his actions can be regarded as a voluntary refusal. Circumstances that prevent the completion of a crime, regardless of the will of the perpetrator, can be of a very diverse nature: the unsuitability of the instruments and means of committing a crime, the opposition of the victim, the intervention of third parties and other circumstances.

The completeness of the objective side of the crime is determined depending on the type of crime. In relation to crimes with a material component, the decisive circumstance is the non-occurrence of socially dangerous consequences. So, for example, if a person used a stolen or counterfeit credit or payment card, but due to circumstances beyond his control, he was unable to turn other people’s money into his own favor or for the benefit of other persons (i.e., there were no consequences in the form of damage), the action depending on the method of theft, it should be classified as attempted theft or fraud under Part 3 of Art. 30 of the Criminal Code of the Russian Federation and the corresponding part of Art. 158 or art. 159 of the Criminal Code of the Russian Federation.

The non-occurrence of consequences to the extent planned by the perpetrator also indicates the presence of an unfinished crime due to the fact that the implementation of the intent is not completed. As the Plenum of the Supreme Court of the Russian Federation indicated in paragraph 25 of Resolution No. 29 of December 27, 2002 “On judicial practice in cases of theft, robbery and robbery”, in cases where the person who committed the robbery had the goal of taking possession of property in large or special on a 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 should be qualified accordingly under Part 3 of Art. 30 of the Criminal Code of the Russian Federation and clause “d”, part 2 of Art. 161 or according to paragraph “b” of Part 3 of Art. 161 as attempted robbery committed on a large scale or on an especially large scale.

In crimes with a formal composition, the decisive factor in resolving the issue under consideration will be the failure to carry out the actions that form the objective side in full. For example, the use of violence during rape, if the perpetrator failed to perform sexual intercourse, should be qualified as an attempted crime, since in this case only part of the objective side of the crime under Art. 131 of the Criminal Code of the Russian Federation. An attempt will also be made in the actions of a person who intends to purchase narcotic drugs, but who, as a result of misleading him, acquired any other substances, since the subject of the crime did not come into his possession, i.e. the objective side of the crime has not been fully fulfilled.

The subjective side of the assassination attempt, just like the subjective side of preparation, is characterized by intent. The consciousness of the guilty person is that he commits actions (inactions) that constitute the content of a specific crime, which he seeks to complete: before the onset of consequences in crimes with a material element and before the commission of all actions in crimes with a formal element. In relation to these circumstances, the volitional element of intent is also determined: the desire for socially dangerous consequences to occur and the desire to commit criminal acts (inaction). Anticipation of the onset of socially dangerous consequences during an attempt occurs only for crimes with a material component. A feature of the subjective side of an assassination attempt is that the consciousness of the perpetrator embraces the fact that the crime was not completed. He realizes that: 1) that he has not completed all the actions necessary to complete the crime that he wanted to commit; 2) the consequences that he sought did not occur at all; 3) the consequences that he sought to occur did not occur in full.

The criminal law does not distinguish any types of attempts, but they have been developed in the theory of criminal law.

An objective criterion for distinguishing types of attempt is the degree to which the perpetrator fulfills the objective side of the crime. In accordance with this criterion, the attempt is divided into completed and unfinished. The subjective criterion for classifying an attempt as completed or unfinished is the subject’s own idea of ​​the degree of completion of his actions. An attempt is considered completed in cases where the perpetrator committed all the acts included in the objective side of the completed crime, but the criminal result did not occur due to circumstances beyond his control.

An unfinished attempt will occur in the case when the subject did not have time to perform all the actions that, in his opinion, were necessary to commit the completed crime.

The division of attempts into completed and unfinished does not matter for the qualification of the crime, however, the degree to which the criminal’s intent was realized can be taken into account by the court when assigning punishment. In addition, such a division may be important for resolving the issue of the presence or absence of a voluntary renunciation of committing a crime.

According to the degree of suitability, an attempt is distinguished between a suitable and an unsuitable attempt. Unsuitable attempts include an attempt on an unsuitable object, item, with unsuitable tools or means. For example, shooting a corpse. In this case, the culprit believes that he is shooting at a living person. In this case, subjectively, there is an attempt on a person’s life as an object protected by criminal law. However, objectively, harm to this object can no longer be caused. But this circumstance does not eliminate the social danger of the act, since the subjectively guilty person encroached on a person’s life. Moreover, the consequences in the form of a person’s death did not occur for reasons beyond his control. Attempts of this kind are classified as attempts on an unusable object.

At the same time, one should agree with the authors who believe that singling out attempts on an unusable object is not entirely successful <1>. The fact is that in the above and other similar cases the perpetrator is mistaken not in the object of the attack, but in the subject of the attack or the victim. Therefore, it would be more correct to classify the types of attempted assault under consideration as attempts on an unusable object (the victim).

———————————

<1> Criminal law of Russia. General part: Textbook. / Rep. ed. B.V. Zdravomyslov. M.: Yurist, 1996. P. 238.

Another type of unsuitable attempt, distinguished in the theory of criminal law, is an attempt with unsuitable means. The essence of this type of attempt is that objectively the means used to commit a crime cannot lead to socially dangerous consequences. But subjectively, using certain means of committing a crime, the perpetrator believes that his actions will entail the onset of the specified consequences. Since the principle of subjective imputation is used in criminal law, in this case the perpetrator will be held liable for the attempted crime. An example of an attempt with unsuitable means is shooting a person with a faulty pistol, mistakenly using a harmless chemical substance instead of poison, etc. This type of attempt also includes attempts using objectively unsuitable methods or methods of committing a crime.

It appears that the identification of an unsuitable attempt as one of the types of attempts is debatable. Any of the so-called unfit attempts discussed above has all the signs of a good attempt, and socially dangerous consequences do not occur due to the corresponding mistake of the perpetrator. It should be noted that under other conditions the actions of the perpetrator would have led to the achievement of a criminal result and the onset of consequences. Therefore, an unworthy attempt should entail criminal liability.

At the same time, in practice there are types of attempts that cannot lead to socially dangerous consequences under any circumstances, and therefore there are no grounds for criminal liability. For example, attempted murder through conspiracy, spells. An attempt to cause harm to health using the same or similar methods, etc. These types of actions can rightfully be called worthless attempts, since they are objectively incapable of causing the desired harm to the perpetrators.

Responsibility for attempted murder occurs regardless of the category of the crime. The basis for liability is the presence of an unfinished crime in the act.

Comments on Article 30

Cooking is characterized by objective and subjective signs.

Article 30 in the Criminal Code of the Russian Federation with comments:

1. Objective signs – the crime was not completed.
2. Subjective signs: deliberate nature.
3. Creation of conditions is possible through active actions. The list in Part 1 is not exhaustive. This is the search for funds and tools (legal, illegal acquisition, discovery, theft), making tools (Finnish knife, key), adapting tools (repairing, turning a gun into a sawn-off shotgun).
4. Objective signs – search for accomplices, recruitment. Other creation of conditions lies beyond the specified list, this includes site research, development of a plan, search for a place to store the received property.

Preparation for a crime - performing all the actions. This means that it is not carried out for subjective reasons (fear of arrest, pity), but for objective reasons. The signs lie outside the scope of the act; it has not yet begun to be carried out. In cases of increased danger of actions, the legislator recognizes them as a variant of the manifestation of the objective side of the act.

Cooking is a deliberate fault. Part 2 states that criminals who are preparing to commit serious or especially serious crimes are subject to criminal punishment. For example, counterfeiting securities is classified as preparation for fraud, while counterfeiting a lottery ticket is for sale.

Attempted crime - actions or inactions aimed at committing a crime. The law specifies the possibility of assassination by actions or inactions. Objective signs: focus on committing an act, it is not completed.

Responsibility comes for preparing for serious crimes. Actions are aimed at committing a crime. This means that the object is already beginning to change. Robbery in Article 161 is described as a material element; to be considered an attempt, it is necessary to seize property without recourse to one’s own benefit. If a person has committed a theft and is detained with property until they have the opportunity to dispose of it, then this is an attempted theft.

When transferring drugs against the background of a test purchase, the deed constitutes an attempt, since the substance is withdrawn from circulation. Actions against the victim committed within a period of time, with the same goals and motives, are qualified as an attempt. The possibility of an assassination attempt with a formal composition is limited by conditions: it is possible when the objective side is added, when there is a time gap between the beginning of actions and their end.

The circumstances are varied. For example, an attempt to create a gang is an action to create a stable group, stopped by the police.

When giving a bribe or transferring illegal remuneration during bribery, liability is imposed under Article 204 or 291 if the official refused the money. It is not an attempt to commit a crime if a person expresses his intention to receive a bribe if he has not taken any action. The subjective side is an intentional crime. The perpetrator understands the danger of actions, wants to carry them out further, or sees the danger of actions and the onset of consequences, desires them. For example, attempted murder always has direct intent.

Determining intent is necessary to distinguish an attempt from a crime or other attempts. For example, attempted rape is recognized as such if the person acts for the purpose of sexual intercourse, and violence is a means to achieve the goal. These 2 factors establish the presence of attempted rape and distinguish attempted rape from violent sexual acts.

In the practice of criminal law, several types of attempts are considered: on an unsuitable object or with unsuitable means. A mistake is an attempt on an unusable object, when, due to the special properties of the object, the actions of the culprit do not encroach on the object and cannot cause harm (replacing the poison with another powder, shooting at a mannequin and not at a person).

The peculiarity of the attempt is that it was not completed due to a mistake. The person uses weapons that cannot achieve the goal (shooting from a starting pistol that the person considers to be a combat pistol). An attempt is also divided into completed and unfinished. They are differentiated by the degree of implementation of intentions. When completed, the person does everything in his power, but the result does not occur due to circumstances beyond his control (miss when shooting). A completed attempt is close to a completed crime and entails punishment.

If unfinished, the person did everything he considered necessary to obtain the result, but it was not achieved (swinging a knife, but there was an obstacle on the part of the victim). With such an attempt there is no possibility of causing harm. Such attempts do not affect qualifications.

Issues of reclassification of preparation for sale into possession of drugs.

Issues of retraining preparation for sale for storage of narcotic drugs. Distinguishing preparation for sale from attempted sale.

Part 1 of Article 30 of the Criminal Code of the Russian Federation, from the point of view of the objective side, contains various forms of preparatory actions, which recognize the search, manufacture or adaptation by a person of means or instruments for committing a crime, the search for accomplices to a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if In this case, the crime was not completed due to circumstances beyond the control of this person.

Preparation for a crime is characterized by direct intent, which must be formed before such conditions are created.

Thus, the signs of preparation are determined by two inextricable components - the person’s intentions to commit a crime and his specific actions that create conditions for the subsequent commission of a crime.

When proving signs of preparation for the sale of narcotic drugs, it is necessary, first of all, to establish whether such actions were committed for the purpose of sale, i.e. whether the person was aware that he was creating conditions for the subsequent sale of drugs and whether he wanted the creation of such conditions.

In accordance with paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 14 of June 15, 2006 “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances” when qualifying a person’s actions as committed for the purpose of selling the intent of the perpetrator should be aimed at the distribution of narcotic drugs. Intent to sell narcotic drugs can be evidenced, if there are grounds for this, by their acquisition, production, processing, storage, transportation by a person who does not use them, their quantity (volume), placement in packaging convenient for sale, or the presence of an appropriate agreement with the consumer.

However, judicial practice has not yet developed uniform enforcement in cases of this category. In this connection, actions for the acquisition and storage of narcotic drugs, which provide for liability under Article 228 of the Criminal Code, are qualified as preparation for their sale under Part 1 of Article 30 of Article 228-1 of the Criminal Code of the Russian Federation, which provides for a more severe punishment and term for the sale of drugs .

Errors in qualification are associated with evaluative criteria, which were precisely laid down by the Supreme Court of the Russian Federation in the above-mentioned resolution of the Plenum.

Having stated that the intent to sell drugs can be evidenced by their quantity (volume), the Plenum did not explain how the investigative authorities and the court should determine the quantity that would indicate preparatory actions for sale.

By what criteria should these clarifications of the Plenum be assessed when applying the provisions of Part 1 of Article 30, Article 228-1 of the Criminal Code? Let's turn to court decisions.

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, in a court hearing on October 6, 2010, reviewed the verdict of the Basmanny District Court of Moscow dated May 19, 2008 in relation to A.A. Bushko. convicted under Art. Art. 30 part 1, 228.1 part 3 paragraph “g” of the Criminal Code of the Russian Federation to 8 years 3 months imprisonment, under Art. 228 part 1 of the Criminal Code of the Russian Federation to 1 year of imprisonment.

The panel of judges found: According to the verdict, Bushko A.A. convicted of illegal acquisition, storage, transportation without the purpose of selling narcotic drugs on a large scale, as well as preparation for the illegal sale of narcotic drugs on an especially large scale under the following circumstances set out in the verdict.

On October 14, 2007, at 13:48, under unknown circumstances, Bushko A.A. illegally acquired from an unidentified person, without the purpose of sale, a narcotic drug - marijuana, the weight of which in dried form is 12.3 grams, for the purpose of subsequent illegal sale of a narcotic drug - cocaine, packaged in 25 bags made of polymer material, with a total weight of 19.91 grams. October 14, 2007 from 13:48 to 22:05 Bushko A.A. in a carriage... of a train... illegally stored and transported marijuana without the purpose of sale, and also illegally stored and transported cocaine for the purpose of subsequent sale. After the arrival of the above train _ at 22:03, during the operational search activity, “observation” of Bushko A.A. was detained on the platform ... of the station, and the above-mentioned drugs were confiscated from him.

Thus Bushko A.A. found funds and created conditions for committing a particularly serious crime - illegal sale of narcotic drugs on a particularly large scale, but was unable to complete the crime due to circumstances beyond his control.

Having checked the materials of the case, the judicial panel believes that there are grounds for reviewing the court decisions taken in the case in relation to the convicted Bushko A.A.

As can be seen from the case materials, operational search activities “observation” and “collection of samples for comparative research” in relation to Bushko A.A. were carried out on October 14, 2007 in order to verify information that he was “engaged in the transportation of ... narcotic drugs - cocaine and marijuana” and on October 14, 2007 at 22:03. arrives by train.

During the conduct of operational-search activities by employees of the OS of the Federal Drug Control Service of the Russian Federation ... October 14, 2007 at 22:05 Bushko A.A. was detained at ... the station on suspicion of transporting drugs. Convict Bushko A.A. During the preliminary investigation and at the trial, he claimed that he had no intent to distribute the drug. For about a year before the trip, he smoked marijuana because he noticed that the pain he suffered from due to a spinal condition went away while the drug was taking effect. While in military service, he “broke” his back and was therefore dismissed for health reasons. After this, he went to medical institutions and was recognized as a group 3 disabled person, and to relieve back pain, doctors prescribed him antibiotics and anesthetic medications. The last time he was tested for disability was in the fall of 2003. Then he did not extend his disability, because he did not want to internally recognize that he was disabled. He came to the city to visit his brother. At one of the discos, he met a girl named V. who treated him to cocaine. Under the influence of this drug, he forgot about the pain in his spine. Later, at V.’s suggestion, he bought cocaine from her for ... US dollars in reserve as an anesthesia to relieve back pain. V. brought him cocaine to the station on October 14, 2007, already packaged, wrapped in a sock. She gave the marijuana, also packaged in a sock, as a gift. Before the train departed... they smoked marijuana. The purchased cocaine as a pain reliever could last for about six months.

When a specialist from the Department of Forensic Services of the Federal Drug Control Service examined 3 fragments of foil and a polymer bag containing 25 polymer bags with an unknown substance, a handprint suitable for identification was found on one of these bags.

According to the conclusion of the fingerprint examination, the fingerprint of the hand submitted for examination was left by the index finger of the left hand of A.A. Bushko. According to the conclusion of the medical examination of A.A. Bushko, conducted on October 15, 2007 in a narcological clinical hospital ... it was established that he was in a state of intoxication ( intoxication) caused by cannabis derivatives.

In accordance with the investigator’s instructions dated November 22 and 26, 2007, employees of the Federal Drug Control Service of the Russian Federation ... carried out a set of operational search and investigative measures, however, as noted in the reports, it was not possible to identify the person who sold A.A. Bushko. narcotic drugs, date, time, place and circumstances, witnesses and eyewitnesses of the acquisition of Bushko A.A. narcotic drugs, persons to whom Bushko A.A. intended to sell the drugs seized from him, the involvement of A.A. Bushko. to commit similar crimes.

Thus, from the case materials it appears that Bushko A.A. acquired a narcotic drug for personal consumption, had no intent to sell it and no evidence indicating this was established in the case.

The quantity of a narcotic substance and its packaging, not confirmed by other evidence, cannot indisputably indicate the intention to sell. Under such circumstances, the judicial panel believes that there are all grounds for reclassifying the actions of A.A. Bushko. from Art. Art. 30 part 1, 228.1 part 3 paragraph “g” of the Criminal Code of the Russian Federation at Art. 228 part 2 of the Criminal Code of the Russian Federation, according to which it is necessary to impose punishment in accordance with the requirements of Art. 60 of the Criminal Code of the Russian Federation.

Based on the foregoing, the judicial panel determined:

Verdict of the Basmanny District Court of Moscow dated May 19, 2008 against Bushko A.A. change, reclassify his actions from Art. 30 part 1, 228.1 part 3 paragraph \"g\" of the Criminal Code of the Russian Federation at Art. 228 part 2 of the Criminal Code of the Russian Federation, imposing a punishment under this article in the form of imprisonment for a period of 3 (three) years. Based on Art. 69 part 3 of the Criminal Code of the Russian Federation for the totality of crimes provided for in Art. 228 part 1 and 228 part 2 of the Criminal Code of the Russian Federation, by partial addition of punishments, finally appoint Bushko A.A. to serve 3 (three) years 3 (three) months of imprisonment in a general regime correctional colony (Supervisory ruling of the Investigative Committee on criminal cases of the Supreme Court of the Russian Federation of October 6, 2010 No. 5-D10-70).

These court decisions indicate that the courts, when determining qualifications under Part 1 of Article 30, Article 228-1 of the Criminal Code, selectively approach the assessment of the quantity of the drug and its packaging.

In some cases, the courts attempted to justify their conclusions in the verdict on the commission of preparation for sale with such concepts as “a significant amount of the drug,” “an insignificant amount of the drug,” or “a large amount of the drug.

It turns out that the courts, when assessing the amount (volume) of drugs in cases of this category, began to engage in law-making and independently introduce concepts such as “a significant amount of drugs”, “an insignificant amount of drugs”, “a large amount of drugs”, while defining according to qualifications its large or especially large size.

Of course, substitution of concepts should not be used when proving signs of a criminal offense. It is necessary to establish clear and precise criteria by which it would be possible to determine signs of preparation for sale and assess the presence or absence of this crime in a person’s actions.

According to Art. Art. 30 part 1, 228.1 part 2 p “b” of the Criminal Code of the Russian Federation, the existence of a purpose for the subsequent sale of a narcotic drug is subject to mandatory proof (Article 228.1 of the Criminal Code of the Russian Federation).

By the verdict of the Oktyabrsky District Court of Ivanovo Gienko A.N. was found guilty of preparing for the illegal sale of drugs on a large scale, committed under the following circumstances.

The convict, at his place of residence, illegally, deliberately, for the purpose of subsequent sale, stored narcotic drugs - marijuana, weighing at least 9.0 grams, which is a large size, as well as poppy straw extract, weighing at least 0.9345 grams. He, for the purpose of subsequent sale, illegally stored narcotic drugs at his place of residence - poppy straw extract as an impurity weighing at least 0.84 grams and poppy straw weighing 33.72 grams, which is a large size. However, the crimes were not completed due to circumstances beyond Gienko’s control.

The Presidium of the Ivanovo Regional Court changed the verdict on the following grounds.

From the case materials it is clear that when the criminal case was sent to the court for consideration on the merits, Gienko was accused of 18 counts of criminal activity related to drug trafficking, of which the state prosecutor refused to charge five counts of sale, and the court dismissed the case for nine counts 1st instance, the cassation instance terminated the criminal prosecution on two counts of sale.

Regarding the episodes of preparation for the illegal sale of narcotic drugs on a large scale, for which Gienko was convicted, there is no evidence indicating the possession of narcotic drugs for the purpose of subsequent sale.

Thus, the basis for the charges for the 2 remaining facts of criminal activity is the following evidence: a report on the inspection of the scene of the incident at Gienko’s house to detect narcotic drugs; search protocol; testimony of witnesses participating in the search; testimony of the convict's sister, who does not incriminate him in selling drugs; expert opinion that the seized substances are narcotic drugs; reports from detectives of the Department of Internal Affairs of the Internal Affairs Directorate that information has been received about the illegal manufacture and sale of narcotic drugs; testimony of drug control officers who confirmed the results of a search in Gienko’s home when drugs were discovered.

Gienko’s assertions that he used a narcotic drug - poppy straw extract in connection with a disease, in order to alleviate his condition and did not have the purpose of selling it, have not been refuted.

With such data, the presidium of the regional court reclassified Gienko’s actions in relation to the narcotic drug marijuana weighing at least 9.0 grams, as well as poppy straw weighing 33.72 grams, under Art. 228 part 1 of the Criminal Code of the Russian Federation, and an extract of poppy straw weighing at least 0.9345 grams, as well as 0.84 grams, was excluded from the charge by Gienko, since criminal liability under Art. 228 part 1 of the Criminal Code of the Russian Federation occurs in case of illegal possession without the purpose of selling a narcotic drug - poppy straw extract in a large amount of more than 1 gram.

Actions of a person committed with a gap in time, but covered by a single intent, are subject to qualification as a single ongoing crime. The classification of several actions of a person committed with a single intent is erroneous, since by virtue of Art. 14 of the Criminal Code of the Russian Federation, such actions of a person relate to a single ongoing crime and cannot be qualified individually as independent crimes.

By the verdict of the Krasnogvardeisky District Court, Saprunov was convicted under Art. 30 p. 3 – 228.1 p. 2 p. “a”, 30 p. 3 – 228.1 p. 2 p. “a”, “b” of the Criminal Code of the Russian Federation.

The court verdict established that the sale of drugs to the convicted person was controlled by employees of the Federal Drug Control Service. Bondarenko (acting as a buyer) agreed in advance with the convict to sell 1 glass of marijuana, but due to his lack of such quantity of the drug on the day of purchase, only 4.1 grams were purchased. marijuana, while Saprunov promised to sell the rest in 2 days.

Under such circumstances, the presidium of the regional court came to the conclusion that the actions of the convicted person for both facts of sale of marijuana do not form a set of crimes, since they were covered by a single intent, occurred on the basis of a previously reached agreement on the amount of the narcotic drug to be sold, and, therefore, should be classified as a single crime.

A person’s actions can be qualified as preparation for sale if it is proven that his actions were aimed at preparing for the illegal sale of narcotic drugs.

Evidence indicating the completion of actions aimed at preparing for sale may include, for example, the following information.

Article 30

2. We can talk about preparation as a stage of committing a crime only when a person is preparing to commit a specific crime, with the intention of subsequently bringing his criminal intent to completion. Because of this, it is impossible to consider as preparation cases when a person intends to commit any crime at all and performs preparatory actions (for example, makes a knife “just in case,” based on the fact that it “might come in handy”). However, some of the mentioned actions can be socially dangerous and form an independent crime (Articles 223, 324 of the Criminal Code, etc.).

Verdict h

After which Ryzhkov V.S., continuing to implement his criminal intent, aimed at stealing funds FULL NAME20 by deception, causing significant damage, acting deliberately, for selfish reasons, realizing the social danger of his actions, foreseeing the inevitability of socially dangerous consequences in the form of causing significant material damage and wanting this, again distorting the voice, deliberately changing the tone of the conversation so that FULL NAME20 gets the impression that another person is entering the conversation, introduced himself to the latter as a law enforcement officer with pre-fictitious data, confirming the deliberately false information he had previously reported about what her son had committed crime, as a result of which a person suffered, under the pretext of providing assistance to her son in order to avoid criminal liability and help the victim, he began to ask FULL NAME20 to pay money in the amount of 50,000 rubles, transferring it through a terminal for paying for cellular communications to a subscriber number that was not identified during the investigation.