There is no concept of “continuing crime of the Criminal Code of the Russian Federation”.
At the same time, a number of articles of the Criminal Code provide for liability for those acts that occur systematically or involve no action at all. It is possible to distinguish between ongoing and continuing criminal offenses, and practice shows that this is successfully implemented within the framework of unified complex offenses. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00
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What is a continuing and ongoing crime
In order to characterize ongoing and continuing criminal acts, it is necessary to turn to the original source. The Criminal Code of the Russian Federation does not define a continuing violation, nor does it contain a definition of a continuing violation. These types are described in the Resolution of the Plenum of the USSR Armed Forces in 1961 and are used for the norms of the current criminal legislation.
Based on the name of a continuing offense, it is clear that the main feature of limiting it from a continuing unlawful action is a continuous time interval within which various actions were systematically carried out aimed at oppressing legal orders. But the Criminal Code also knows cases where negligent or intentional inaction was also an indicator of a denial of the law.
A continuing offense of the Criminal Code of the Russian Federation, in contrast to the previous type, represents the commission of different, but similar in composition, actions, which consequently lead to their definition as a crime. These illegal acts must also be carried out over a long period of time.
If a person steals a large number of items at a time, for example, a ton of cement, then he is charged with the appropriate composition. However, if he steals one bag at a time for the purpose of further using the total volume of the stolen goods, for example, for the construction of a barn, then the act is recognized as continuing regardless of the moment of discovery of the theft.
When citing examples of criminal attacks, one cannot ignore Article 205 of the Criminal Code of the Russian Federation (murder). Such an action cannot be ongoing or ongoing, as it poses a social danger to society.
In general, we can name the main characteristics of these types of socially dangerous acts:
- Lasting can be represented by both action and inaction.
- What is continued is manifested only in the action of the criminal.
- The nature of the actions of a continued action can only be intentional, while that of a continuing action cannot.
Despite the different characteristics of these types, they pursue a single goal - the commission of a socially dangerous act.
Key events in the novel “Crime and Punishment”
Detailed outline of the novel by F.M. Dostoevsky’s “Crime and Punishment” (1866) - key events point by point:
"Test" by Raskolnikov
Part 1, Chapter 1 Raskolnikov, under the guise of a client, goes to the old money-lender Alena Ivanovna to discreetly find out where she keeps her money and valuables.
Meeting Marmeladov
Part 1, chapter 2 In the tavern, Raskolnikov meets the drunken official Marmeladov. The latter tell the young man the story of their life. After the conversation, Raskolnikov accompanies the drunken Marmeladov home, where he witnesses the terrible living conditions of the family.
Letter to Mother
Part 1, Chapter 3 Raskolnikov receives a letter from his mother from the R-province, in which the woman talks about Svidrigailov’s harassment of Dunya, and about Dunya’s subsequent engagement to Luzhin.
Committing a crime
Part 1, chapter 7 Raskolnikov comes to the old money-lender, and while she is accepting the mortgage, he hits her on the top of the head with his butt. The old woman's weak-minded sister Lizaveta becomes an accidental witness to the crime. Without foreseeing this, Raskolnikov kills her too.
Summons from the office
Part 2, chapter 1 In the morning, the maid Nastasya brings Raskolnikov a summons to come to the office at 11 am today. Raskolnikov is worried, but the reason for the call turns out to be trivial: they demand a receipt from him for the debt to the landlady. In the office, he hears officials discussing the murder of an old woman, and faints from excitement.
Meeting Luzhin
Part 2, chapter 5 Mr. Luzhin, the fiancé of his sister Dunya, comes to Raskolnikov. Raskolnikov reproaches him that he is going to marry Duna only so that the girl will be grateful for the rest of her life for ridding her family of poverty. Luzhin tries to deny this. An angry Raskolnikov kicks him out.
Visit to the murder scene
Part 2, chapter 6 Half-delirious, he comes to the house of a murdered old money-lender. There he asks strange questions to the residents. His questions alarm one of the neighbors, a tradesman. Later, the tradesman calls Raskolnikov a “murderer.” The young man does not understand what this means.
Death of Marmeladov
Part 2, Chapter 7 Wandering around the city, Raskolnikov comes across a crowd gathered around a man who has been hit by a carriage. This man turns out to be Marmeladov. He persuades the police to take the wounded man home, and he himself shows them the way. Soon Marmeladov dies. In this episode, Raskolnikov meets Sonya.
Arrival of mother and sister
Part 3, chapters 1-2 Raskolnikov’s mother and sister arrive in St. Petersburg. Seeing them, he suddenly faints, which seriously frightens the women.
Meeting with the investigator
Part 3, Chapter 5 Together with Razumikhin, Raskolnikov goes to investigator Porfiry Petrovich: a friend promised to introduce them. Raskolnikov allegedly wants to declare his belongings, which he pawned with the old woman pawnbroker. In fact, this is an excuse to get to know the investigator. During this meeting, Porfiry speaks with Raskolnikov about his article in the newspaper.
Svidrigailov's visit
Part 4, chapter 1 Raskolnikov meets with Svidrigailov. He asks to arrange a meeting with Dunya, but Rodion refuses.
Scandal with Luzhin
Part 4, chapters 2 - 3 At the request of Dunya, Raskolnikov and Razumikhin come to Rodion’s family, where they meet Luzhin. The latter loses his temper and a quarrel breaks out. Dunya with dignity asks him to leave. This is where the relationship between Dunya and Luzhin ends.
Visit to Sonya
Part 4, Chapter 4 Raskolnikov comes to Sonya’s apartment for the first time: he wonders what Sonya will do now, because after Marmeladov’s death the whole family is with her. Noticing the New Testament lying on the “harlot’s” table, he asks to read to him about the resurrection of Lazarus. In parting, Raskolnikov promises Sonya next time to tell her who killed Lizaveta.
Second meeting with the investigator
Part 4, chapter 5 Raskolnikov again finds himself with Porfiry Petrovich. The investigator again starts a game with him. Tired and irritated, unable to resist the pitfalls of the interrogation, Raskolnikov demands either that he be officially charged with murder.
Mikolka's Confession
Part 4, Chapter 6 The painter Mikolka is brought to the investigator’s office, who takes the blame for the murder of the old pawnbroker.
Luzhin's slander
Part 5, chapters 1 - 3 Intending to quarrel Raskolnikov with his mother and sister, Luzhin slips a hundred-ruble ticket into Sonya's pocket, after which publicly, at her father's wake, he accuses the girl of theft. Lebezyatnikov stands up for Sonya, who saw Luzhin put a bill in the girl’s pocket.
Confession to Sonya
Part 5, Chapter 4 Raskolnikov goes to Sonya and tells her the truth about his crime. Sonya advises him to confess to the police. Svidrigailov overhears them behind the wall.
The madness of Katerina Ivanovna
Part 5, Chapter 5 Lebezyatnikov tells Sonya that her stepmother Katerina Ivanovna has completely lost her mind. She pointedly sent the children to beg, while she walked nearby and knocked on the frying pan, forcing them to dance to this “music.” During this “scene,” the woman stumbles and falls to the ground, dying from consumption that has long tormented her.
Porfiry's promise
Part 6, chapter 2 Investigator Porfiry Petrovich informs Raskolnikov that he is convinced of his guilt. He promises Raskolnikov to commute his sentence if he confesses within two days.
Meeting of Svidrigailov and Dunya
Part 6, chapter 5 Svidrigailov lures Dunya into his apartment, where he talks about the overheard conversation between Sonya and her brother. He offers her a deal: he will save her brother if Dunya agrees to be with him. Dunya is angry and tries to leave, but finds that the door is locked from the inside. Then she takes out a revolver and shoots at Svidrigailov, but misses. Arkady Ivanovich, finally realizing that the girl will never love him, lets her go.
Suicide of Svidrigailov
Part 6, Chapter 6 After the “cleansing” rain, Svidrigailov comes to say goodbye to Sonya: he tells her that he plans to leave for America. As a farewell, he gives her 3 thousand rubles. At night he sees nightmares, and at dawn he goes out into the street and, taking out Dunin’s revolver, shoots himself in the head.
Confession of Raskolnikov
Part 6, Chapter 8 Having met Sonya for the last time, Raskolnikov goes to the office, where, on the second attempt, he confesses to the crime he committed.
Ongoing crime
A continuing offense is characterized by the intent of the offender (the objective side), which is aimed at achieving a criminal goal through the methodical execution of smaller, but also socially dangerous actions. If an employee steals individual parts of any equipment for a long time for the purpose of creating one working unit, then this crime will definitely be classified as ongoing.
Features of this type of act:
- the presence of more than two identical actions;
- each action can be qualified as an independent crime, but cannot be imputed as such;
- the presence of direct or indirect intent is mandatory;
Violation of the law will continue until the final goal is achieved, completing a series of similar actions.
Continued violations of criminal law include:
- Torture (Article 117). The disposition of the article provides for the presence of systematic bullying actions towards the victim.
- Bribe (Article 290). It may be considered continued if the receipt of a bribe was systematic, and the bribe-giver was the same person or the protection was carried out in relation to one object.
A peculiarity of such a violation of the law is the determination of the moment when it ends.
As a general rule, this moment is determined by the last action actually performed. If such a moment is determined, and the person has not been brought to justice, then the rules on amnesty or dismissal of charges after the expiration of the statute of limitations may be applied to him.
Such a violation of the law must be systematic in nature: for example, the seller weighed goods daily in violation of the norms.
Factors that characterize a crime as ongoing are related to time intervals:
- identical actions must be carried out periodically and systematically;
- these actions are identical in relation to the context of the commissions and their sources.
Only the court, based on the evidence presented, can determine whether the actions are identical or whether they are independent elements.
Direct intent and due diligence: some case law
Often, convictions are motivated by the failure of counterparties to fulfill their tax obligations, the refusal of their leaders from financial and economic activities, and on the part of the leaders of the guilty taxpayer - a lack of due diligence, they say they did not check the real activities, tax obligations, etc. There are many such solutions. There are quite a few of them with real sentences.
But…
The Constitutional Court of the Russian Federation, back on May 27, 2003, in Resolution No. 9-P, determined that “ in relation to the crime provided for in Article 199 of the Criminal Code of the Russian Federation, only an act that is committed with intent and aimed at avoiding payment of tax in violation of the established tax legislation can be recognized as a constituent act.” rules This obliges the authorities carrying out criminal prosecution not only to establish during the investigation and judicial consideration of a specific criminal case the very fact of non-payment of tax, but also to prove the illegality of the relevant actions (inaction) of the taxpayer and the presence of intent to evade tax payment (clause 1 of part one of Article 73 Code of Criminal Procedure of the Russian Federation). The absence in Article 199 of the Criminal Code of the Russian Federation of a list of specific methods of evading the payment of legally established taxes does not provide the law enforcement officer with grounds for arbitrary prosecution for non-payment of taxes, including in cases where the taxpayer uses mechanisms for reducing tax payments that do not contradict the law or allows non-payment of taxes by negligence ."
According to paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 26, 2021 No. 48 “On the practice of application by courts of legislation on liability for tax crimes,” tax evasion is possible only with direct intent.
To prove direct intent, the Investigative Committee of the Russian Federation and the Federal Tax Service of the Russian Federation issued a joint letter dated July 13, 2021 No. ED-4-2 / [email protected] “Methodological recommendations “On research and proof of facts of deliberate non-payment or incomplete payment of the amount of tax (collection )".
This document sets out some criteria that indicate possible direct intent.
It is indicated that the main factor when using dummy persons (shell companies) is their control by the taxpayer-beneficiary. For example, there are several intermediaries between the supplier and the buyer, and one of them has clear and unambiguous signs of a shell company, including not paying taxes.
An organization (wishing to receive an unjustified tax benefit) enters into business agreements with a person who does not fulfill its tax obligations, and the activity, as a rule, is directly or indirectly controlled by the recipient of the unjustified tax benefit , transfers to him the amount specified in the agreement (including the amount of indirect taxes).
The main tax burden falls on , while the manufacturer and final seller have a minimal tax burden. In the described case, according to the conclusions of the Federal Tax Service of the Russian Federation, the recipient of an unjustified tax benefit can be both the manufacturer and the final seller.
The joint letter indicates the need to establish the affiliation of the shell company (supplier or buyer) and prove it.
Examples are given that may indicate direct intent. This:
— lack of state registration of the counterparty at the time of the transaction;
- submission by the company to the inspection of documents on behalf of counterparties, which were actually drawn up by representatives of the company itself (the founder and head of the taxpayer organization was at the same time the founder and head of fly-by-night companies, the taxpayer’s employee was at the same time the head of the fly-by-night company);
— establishing circumstances indicating the coordination of actions of the entrepreneur and his counterparties, aimed at creating the appearance of compliance with the requirements of the law, in order to claim VAT for deduction and include costs as part of professional tax deductions: lack of a real possibility of delivering goods, lack of confirmation of delivery of goods, lack of participation of counterparties in the movement of goods, the transit nature of payments, cashing out funds, while the participant of the counterparties is the entrepreneur himself who is held accountable.
In the ruling dated May 28, 2020 No. 05-ES19-16064, the Supreme Court of the Russian Federation in a specific case established that the additional charge of VAT to the company is due to the groundless transfer of tax obligations of the supplier company and persons controlled by it to the taxpayer, while the non-receipt of VAT to the budget due to unlawful actions of suppliers the first, second and more distant links is the basis for tax claims against these companies and the persons controlling them, and not against the company, whose involvement in the actions of counterparties has not been confirmed.
The Supreme Court of the Russian Federation in this ruling stated that during the tax audit, no circumstances were established of conspiracy between the taxpayer and his counterparties aimed at obtaining unjustified tax benefits, including circumstances indicating that the taxpayer controlled the activities of the counterparty company and related persons, who committed non-payment of VAT when carrying out transactions..., determined the behavior or otherwise influenced their activities, and was the beneficiary of the transactions.
These facts were established by the Supreme Court of the Russian Federation within the framework of tax law, when there is no need to establish direct intent.
According to paragraph 3 of Art. 54.1 of the Tax Code of the Russian Federation, the signing of primary accounting documents by an unidentified or unauthorized person cannot be considered as an independent basis for recognizing a taxpayer’s reduction of the tax base and (or) the amount of tax payable as unlawful.
The Tax Code of the Russian Federation also divides the actions of the taxpayer into careless, when carelessness was committed when choosing a counterparty (clause 1 of Article 122 of the Tax Code of the Russian Federation), and intentional (clause 3 of Article 122 of the Tax Code of the Russian Federation).
Often, based on the results of a tax audit, the taxpayer’s actions are qualified under paragraph 1 of Art. 122 of the Tax Code of the Russian Federation as careless, and in accordance with paragraph 4 of Art. 110 of the Tax Code of the Russian Federation, the guilt of an organization in committing a tax offense is determined depending on the guilt of its officials.
For example, the Rostov Regional Court, in its appeal ruling dated January 13, 2020 No. 22-3/20, found that the lack of due diligence and caution in choosing contractors indicates the absence of direct intent aimed at tax evasion. The inaction of the head of a legal entity related to improper verification of the company's counterparties may indicate the presence of tax liability in his actions, but cannot be regarded as a method of tax evasion.
According to the conclusions of the appeal ruling of the court of the Yamalo-Nenets Autonomous District dated August 22, 2019 No. 22-828/19, the fact that the suppliers had fictitious directors cannot clearly confirm the lack of real execution of the concluded contracts, but only indicate that the accused director did not exercised due diligence when searching for counterparties.
The lack of evidence and failure to indicate specific actions led the investigation to the objective imputation of direct intent, which, according to the Resolution of the Constitutional Court of the Russian Federation of May 27, 2003 No. 9-P, is unacceptable. This is the Tver Regional Court in the appeal ruling dated March 12, 2019 No. 22-357/19.
The Sverdlovsk Regional Court, in its appeal verdict No. 22-4001-18 dated May 25, 2018, acquitted the accused, also pointing out that the lack of due diligence and caution does not indicate the deliberate nature of the actions of the guilty person. The acquitted had the opportunity to obtain information about counterparties only to the extent contained in the Unified State Register of Legal Entities, in which there are no circumstances of the counterparties not carrying out business activities, and the “Risks” and “Kontur-Focus” databases were of a closed, official nature.
The Khabarovsk Regional Court ruled in the same way in its appeal ruling dated April 11, 2017 No. 22-605/17 - the law does not provide for the obligation of the head of an organization to request information about subcontractors from government bodies, banks and other institutions, and therefore, possible indiscretion cannot be considered a basis for incrimination of intent to evade taxes. A violation by a taxpayer's counterparty of its tax obligations does not in itself constitute evidence that the taxpayer has received an unjustified tax benefit.
Violations of their tax obligations by counterparties identified by tax audits do not in themselves indicate the presence of intent to evade taxes. The same conclusion is drawn from the appeal ruling of the Khabarovsk Regional Court dated March 4, 2019 No. 22-341/19.
The cassation ruling of the Omsk Regional Court dated May 31, 2012 No. 22-2092/12 concludes: according to the verdict, the fact is that the accused did not show due diligence and care when choosing contractors who issued VAT invoices, being on a simplified taxation system, and provided documents signed by persons not authorized to sign is only a basis for bringing to tax liability.
