What is considered an attempt and preparation for theft? When is it considered completed and what is voluntary refusal?

At what point is it considered completed?

Theft is a material crime. That is, criminal liability for a completed crime occurs if all the signs of the objective side are contained: the action, socially dangerous consequences and the cause-and-effect relationship between them. Therefore, the moment the theft ends is associated with the onset of socially dangerous consequences, which are expressed in causing damage to the owner of the stolen property. From this moment the theft is considered complete.

Important!

The Supreme Court in paragraph 6 of PPVS No. 29 indicates that the theft is considered completed from the moment the person has a real opportunity to dispose of or use the property.

If a person has completed all the steps to steal property, but does not have the opportunity to use it, then one cannot speak of a completed theft.

Here are two examples:

1. Ivan steals property from Peter's apartment while he is not at home.
   After confiscating the stolen property, Ivan calmly leaves the apartment building and freely gets to his own, where he gives part of the stolen property to his wife and keeps part for himself.

   After this, he is detained by law enforcement agencies.

   In this situation, Ivan has a real opportunity to use Peter’s property at his own discretion, so the crime will be considered completed.

2. Ivan performs the same actions.
   However, when leaving Peter's apartment, he is detained by the police. In this situation, Ivan, although he stole the property, was unable to sell it as he had originally planned, that is, there was no real opportunity to use it. In other words, when the culprit is at the scene of the theft, he cannot dispose of the stolen property. This opportunity arises when a person leaves the scene of a crime.

In practice, it is very important to be able to distinguish between completed and unfinished theft, which we will talk about later.

Recommended reading:

What is theft? Understanding the concept and key features

Where to go if there is a theft?

Criminal legal characteristics of theft. Corpus delicti

Completed crime

Although the history of criminal law is known for the responsibility for the formation of intent (the Council Code of 1649: “If someone decides to do something evil for the sovereign’s health with some kind of intent, someone will notify about his evil intent, and by that information his evil intent will be clearly revealed, that he, the Tsar’s Majesty, was thinking of an evil deed and wanted to do it, and such a person would be executed by death upon investigation”), and for its discovery (the Code on Criminal and Correctional Punishments of 1845 established responsibility for “expressing it in words, or in writing, or in any other way action of intent to commit a crime"), modern criminal law, as a rule, recognizes the formation and detection of intent as unpunishable.

The formation of intent is an internal mental process, it does not manifest itself in any way externally, and therefore in itself, without subsequent actions to implement such intent, does not pose a threat to social relations, interests and benefits protected by criminal law. In addition, the individual’s right to freedom of thought is now recognized as inalienable. Therefore, the content of thoughts should not become the subject of legal assessment.

Detection of intent in itself, not supported by specific actions of a person aimed at realizing the intent or at least creating conditions for such implementation, is also not punishable. In this case, also, no harm is caused to the objects of criminal legal protection and no real threat of causing such harm is created, therefore, there can be no talk of a public danger [3]. It is noted that the detection of intent often, on the contrary, prevents the commission of a crime, due to the timely adoption of measures to prevent the crime[12].

Punishability of detection of intent is typical mainly for state crimes in the legal systems of states with an autocratic or totalitarian regime, where the state seeks to control all spheres of a person’s life, including his private life. On the contrary, liberal democratic ideology excludes the recognition of the detection of intent as criminal[13]. Montesquieu wrote that “laws should punish only criminal acts”[14]. The Order of Catherine II stated that “laws are not obliged to punish any actions other than external or external actions.” In general, it is indicated that the punishability of detection of intent is associated with judicial arbitrariness, since such punishability is based on the intrusion of justice into the mental sphere of a person, inaccessible to objective external observation[15].

Detection of intent and similar acts

Detection of intent should be distinguished from the threat to commit a crime, which in some cases (for example, a threat of murder or infliction of grievous bodily harm) may have an independent criminal legal significance, since the very fact of the threat causes harm (mainly of a moral or organizational nature). The threat of committing a crime is not considered as a stage of the implementation of a criminal intention; it is an independent criminal act, an informational action that carries an independent social danger[7].

In addition, the detection of intent differs from “information” crimes, the essence of which is the transfer of certain information from one subject to another: insult, slander, public calls for unleashing an aggressive war, etc. In such acts, the very fact of transmitting information causes criminal harm and is socially dangerous[12].

When is it unfinished?

Actions are considered by the legislator as an unfinished theft, for which criminal liability is also provided, in the following cases:

• the perpetrators are discovered at the scene of the theft before the crime they committed was completed;
• a person is caught red-handed at the scene of a crime, and he has not even begun to seize property.

It should be noted that a person will not be subject to criminal liability for detecting intent to commit theft.

For example, if A. told his friend that he wanted to steal equipment from a store, but did not do this, then such intentions are not punishable.

Article 29 of the Criminal Code of the Russian Federation identifies the following types of unfinished crime: preparation and attempt. We will talk about them in this section.

Preparation

Preparation to commit theft , being a type of unfinished theft, lies in the fact that the person has not yet begun to carry out the objective side, but creates favorable conditions for its commission. At the same time, the perpetrator is not allowed to complete his criminal intent.

A person’s actions may be regarded as preparation for theft if the following signs are present:

1. Performing such actions that may create conditions for committing theft.

Let's look at examples of these actions:

• Before committing a theft, Ivan studies the apartment in which he wants to steal property in advance, takes a photo of the keys, that is, he tries to simplify the theft.
• Ivan agrees in advance to commit the theft together with his friend Igor, that is, he looks for accomplices to commit the theft and conspires with them.
• Before committing a pickpocket, Ivan trains his skills several times on an acquaintance, that is, he conducts so-called rehearsals.

The list of actions that can be considered as preparation is not precisely defined by the legislator, since in each specific case the perpetrator may prepare to commit theft in different ways.

1. The theft has not yet begun to take place and, moreover, it cannot be completed, that is, preparatory actions must precede the theft.

• Such preparatory actions are interrupted by other persons, so the guilty person does not have the opportunity to commit theft. For example, Ivan was detained by police officers at the moment when he was trying to take a fingerprint from the lock in order to make a key and then freely enter the apartment.
• The person must have direct intent to commit secret theft.

Note!

Not any preparation for theft is criminally punishable, since Part 2 of Art. 30 of the Criminal Code of the Russian Federation establishes that a person is liable only for preparation for a grave or especially grave crime.

At the same time, Part 2 of Art. 66 of the Criminal Code of the Russian Federation establishes that the punishment for preparation cannot be more than half of the prescribed sanction (under Part 3 - up to 3 years in prison, under Part 4 - up to 5 years).

Let's imagine that Ivan and his friend Igor developed a plan to steal from a grocery store and bought masks to hide their faces. However, suddenly their plan becomes known to the police, and the officers detain them.

In this case, Igor and Ivan will not be subject to criminal liability, since Part 2 of Art. 158 of the Criminal Code of the Russian Federation - a crime of medium gravity.

Example from judicial practice:

Shigin tried to find the most favorable conditions for committing the theft, which he had already planned for a certain day.

He arrived at an apartment building, opened the vestibule door on the floor with a previously prepared key, and then placed “identification beacons” on the doors of several apartments in order to establish whether there was someone in the apartment or not.

He performed such actions on the 7th floor, but on the 6th floor he was detained by police officers.

The Prioksky District Court found Shigin guilty of preparing for theft, committed with illegal entry into a home (part 1 of article 30 + paragraph “a”, part 3 of article 158 of the Criminal Code of the Russian Federation), and sentenced him to 1.5 years in prison .

Assassination

In practice, there are situations when a person has already taken possession of property, but did not have the opportunity to dispose of it because he was caught by surprise (attempted theft).

This often happens with shoplifting: a person secretly steals food, is already heading for the exit, but is stopped by a security guard who has noticed his criminal actions. That is, the theft in this case will not be considered completed, since it was not completed. Therefore, the actions of a person must be qualified as an attempt (Part 3 of Article 30 of the Criminal Code of the Russian Federation).

According to Part 3 of Art. 66 of the Criminal Code of the Russian Federation, the punishment for attempted murder cannot be more than three quarters of the punishment provided for by the sanction. For attempted simple theft, the maximum term of imprisonment is 1.5 years, for attempted Part 2 - 3 years 9 months, Part 3 - 4.5 years, Part 4 - 7.5 years.

Let's look at the signs of attempted theft and illustrate with examples:

• The person began to carry out the objective side of the theft.

For example, Igor illegally enters the house to steal Peter's property and begins to put his jewelry in his backpack. That is, Igor’s actions in this case are aimed at committing theft.

• The person acts intentionally.

In the same situation with Igor, it is necessary that he realizes that he is committing a theft and wants to steal Peter's property. It is important that the person intended to commit theft in the first place.

• A person cannot complete the theft due to circumstances beyond his control.

That is, it is important to understand: did the person have the opportunity to dispose of the stolen property?

Igor, having put the stolen goods in his backpack, is about to leave, but on the way out of the room he is met by Peter, the owner of the apartment. In this case, Igor does not have the opportunity to dispose of the stolen property at his own discretion, since his actions were interrupted by Peter.

In the above example with Igor, his actions must be qualified under Part 3 of Art. 30 and paragraph “a”, part 3, art. 158 of the Criminal Code of the Russian Federation (attempted theft with illegal entry into a home).

Note!

The actions of a person can also be qualified as attempted theft if the perpetrator makes a factual error, that is, has an incorrect understanding of the circumstances of the theft.

For example, if Igor found out that Peter keeps 300,000 rubles in a safe in his apartment. He sneaks into the apartment, opens the safe and takes the package, hoping that he is stealing 300,000. After that, he leaves the house and discovers that the stolen amount of money is 3,000 rubles.

In this case, Igor’s actions should be qualified under Part 3 of Art. 30 and paragraph “c”, part 3, art. 158 of the Criminal Code of the Russian Federation according to the rules of qualification when committing a factual error.

Recommended reading:

Commentary of the Supreme Court PP to Art. 158 of the Criminal Code of the Russian Federation (Theft)

Dimensions of theft

Complicity in committing theft

Punishments for unfinished crimes

The Russian Code contains precise definitions that provide for specific punishments for certain crimes that lead to serious or other consequences. The sentencing for an unfinished crime is determined by Article 66 of the Criminal Code ; all circumstances that did not give the offender the opportunity to complete the crime are taken into account.

1. When determining the term of punishment, the period of time allotted for the preparation of the crime and the reasons opposing the commission are taken into account. He cannot exceed the terms provided for in the article for a similar crime brought to an end.
2. The term of punishment for an unfinished crime in criminal law cannot be more than three-quarters of the term for a similar completed crime.
3. Capital punishment, life imprisonment, cannot be imposed for an unfinished crime.

From my own practice, I can say that most sentences imposed for an unfinished crime are usually limited to seven years in prison.

An unfinished crime committed by a minor cannot be assigned more than ¾ of the term provided for by law for a similar crime brought to completion.

In addition, crimes can be classified according to severity.

According to this classification, the degree of punishment for an unfinished crime is determined.

The crime is considered completed when the moment of completion of the crime coincides with the elements of the crime. Based on legislation, they are divided according to their composition:

• material;
• formal;
• truncated.

Material means obvious dangerous consequences. This definition includes:

• murder;
• causing grievous bodily harm.

If this does not happen, then the crime is considered unfinished.

Peculiarity! The formal corpus delicti arises regardless of the occurrence of signs of completion. For example, libel is considered a completed crime from the moment knowingly false information was disseminated in all possible ways to third parties or in mass media.

A truncated crime is a variation of previous, formal crimes. At the legislative level, such acts are automatically classified as formal crimes. As practice shows, a criminal who has committed a truncated crime does not stop and continues his actions until a certain completion or impossible completion.

All this is difficult to understand in practical terms. Therefore, it is easier for ordinary people to understand it using specific examples.

A certain citizen planned to cause some harm to his friend. He thought through the plan, prepared the tool, studied the plans for the movement of his object. But on the planned day, it turned out that the object returned home at the right time, but not alone. The truncated view is of a crime that the criminal planned to carry out on another day.

Robberies and banditry can also be classified as truncated types. The crime will only be unfinished or completed when the gang is apprehended. Until then, all their actions are regarded as truncated, unfinished crimes. But after arrest, punishment will have to be borne for all previously committed crimes in aggregate.

Voluntary refusal to commit

There are situations when a person has already begun to prepare to commit theft or has already begun to commit theft, but has decided to refuse further execution of the objective party.

For example, A. planned to steal equipment from apartment B. He made his way into the living space, but subsequently decided not to steal anything, because he was afraid that he would be prosecuted.

In this case, A. will be held accountable only for the actual actions (Part 3 of Article 31 of the Criminal Code of the Russian Federation) that he committed, that is, for illegal entry into residential premises - Part 1 of Art. 139 of the Criminal Code of the Russian Federation.

However, the person will not be held criminally liable for theft, since there was a voluntary refusal.

To recognize a refusal to commit theft as voluntary, the following conditions are necessary:

1. Timeliness of refusal.

That is, he can only be at the stage of preparation or attempted theft.

If A. has already stolen the equipment, left the house with it, but then could not sell it, then this is already a completed theft, therefore, there cannot be a voluntary refusal.

1. Finality of refusal.

That is, the person must finally refuse to commit theft.

If A. decided not to steal from the apartment that day, but returned the next day, then in this situation we cannot talk about the voluntariness of the refusal.

1. A real opportunity to commit theft.

That is, the guilty person understands that he can perform all the actions to steal the property and escape with it. However, he does not do this because he does not want to be punished.

We cannot talk about voluntary refusal if A. was caught by the owner of the apartment at the scene of the theft.

1. Voluntary refusal.

That is, the guilty person must independently decide not to commit theft.

A. was caught at the scene of the theft by law enforcement agencies, then we are talking about a forced refusal.

Thus, if all of the above conditions are present, then the person cannot be brought to criminal liability in accordance with Art. 31 of the Criminal Code of the Russian Federation.