ST 208 of the Criminal Code of the Russian Federation.
1. The creation of an armed formation (association, detachment, squad or other group) not provided for by federal law, as well as the leadership of such a formation or its financing -
shall be punishable by imprisonment for a term of ten to twenty years with restriction of freedom for a term of one to two years.
2. Participation in an armed formation not provided for by federal law, as well as participation on the territory of a foreign state in an armed formation not provided for by the legislation of that state, for purposes contrary to the interests of the Russian Federation, -
shall be punishable by imprisonment for a term of eight to fifteen years with restriction of freedom for a term of one to two years.
Note. A person who has committed a crime under this article for the first time, who voluntarily ceased participation in an illegal armed group and surrendered weapons, is exempt from criminal liability unless his actions contain another crime.
Commentary to Art. 208 of the Criminal Code
1. From the point of view of the objective side, the article provides for two elements of crime. The corpus delicti contained in Part 1 is characterized by alternatively provided actions: a) the creation of an armed formation not provided for by federal law; b) leadership of such a formation; c) its financing. The corpus delicti contained in Part 2 is characterized by participation in an armed formation not provided for by federal law, or participation on the territory of a foreign state in an armed formation not provided for by the legislation of that state, for purposes contrary to the interests of the Russian Federation (Russian criminal law is applicable on the basis Part 1 or 3 of Article 12 of the Criminal Code). The content of the listed actions is generally similar to the characteristics of the corresponding actions provided for in Art. 205.1, 209 CC.
2. An armed formation not provided for by federal law can be created in the form of an association, detachment, squad or other group (for example, a training center, camp, base, etc.), and its constitutive features are, firstly, illegality (i.e. not provided for by federal law) and, secondly, armament (presuming the presence of at least one participant in the formation of weapons of any type and origin suitable for the intended use, as well as various explosive devices).
3. The note to the article (applying only to criminal actions provided for in Part 2 of the article) provides the basis for exemption from criminal liability for this crime in connection with active repentance.
4. The commission of criminal acts by an illegal armed group that constitute independent crimes should be qualified in conjunction with Art. 208 of the Criminal Code.
5. From organizing a terrorist community (Article 205.4 of the Criminal Code), banditry (Article 209 of the Criminal Code), organizing a criminal community (criminal organization) (Article 210 of the Criminal Code of the Russian Federation), armed rebellion (Article 279 of the Criminal Code), organizing an extremist community (Article 282.1 of the Criminal Code) the crime under consideration is distinguished by the absence of constitutive goals characterizing these crimes.
Comment on the article
In order for the court to qualify a crime under Art. 208 of the Criminal Code of the Russian Federation, there must be indisputable evidence that the created illegal armed formation had weapons that individuals could use or used at one time or another during the commission of a crime. When considering cases, courts are very often faced with the need to characterize and classify weapons that fall under the definition of “armed formation.”
This includes:
- edged weapons (throwing and non-throwing types);
- firearms (small arms, smoothbore, sporting weapons, etc.);
- homemade weapon.
Self-production of firearms is a separate type of crime, and when sentencing, the charge will be presented based on the totality of crimes, taking into account Article 223 “Illegal production of weapons.”
In addition, each type of weapon is divided into several subtypes. Within the framework of this article, it does not make sense to delve into the history of the creation of weapons for killing people. In general terms, it can be: household, military and sporting weapons. The full characteristics of military and other weapons can be found, for example, on the Wikipedia website.
The presence of weapons in the case is a necessary factor by which one can talk about such a criminal offense as organizing an illegal armed group and/or participating in its activities.
Second commentary to Art. 208 of the Criminal Code of the Russian Federation
1. The objective side of the composition is characterized by several alternative actions:
a) the creation of an illegal armed formation (IAF); b) leadership of such a formation;
c) its financing;
d) participation in an armed formation not provided for by federal law, as well as participation on the territory of a foreign state in an armed formation not provided for by the legislation of that state, for purposes contrary to the interests of the Russian Federation (Part 2 of Article 208).
2. An armed formation, the creation of which was carried out contrary to the requirements established by federal legislation, is recognized as illegal (Article 13 of the Constitution of the Russian Federation, paragraph 9 of Article 1 of the Federal Law of May 31, 1996 No. 61-FZ “On Defense”, etc.).
Armed formations that are created on the basis of decisions of authorities and administration of constituent entities of the Russian Federation, local self-government bodies, as well as federal executive authorities may also be recognized as illegal, due to the fact that defense and security fall under the exclusive jurisdiction of the Russian Federation (Article 71 of the Constitution RF).
If a stable armed group is created to commit terrorist acts, forcibly change the foundations of the constitutional order, or violate the territorial integrity of the Russian Federation, then criminal liability should arise under Art. 205.4, not Art. 208.
By formation, the legislator understands an association, detachment, squad or other group. An illegal armed group is a special type of organized group, so it must have those essential features that are inherent to it: stability, internal discipline, distribution of roles, etc.
A formation will be considered armed if its members have any weapons, ammunition, explosives and explosive devices, including handicrafts, as well as military equipment.
3. Creation, management and participation in illegal armed groups, see commentary in Art. 205.4 CC.
4. Financing means the provision or collection of funds or the provision of financial services with the understanding that they are provided to finance an illegal armed formation.
In cases where a person promotes terrorist activities by financing an illegal armed group, his actions are covered by Part 1 of Art. 208, and additional qualifications under Part 1 of Art. 205.1 of the Criminal Code is not required as financing of terrorism.
5. The crime is recognized as completed from the moment of creation of an illegal armed group, or the commission of actions to lead such a formation, or its financing (Part 1 of Article 208), or from the moment of participation in it (Part 2 of Article 208).
When a participant in an illegal armed group commits a specific crime, his actions must be qualified according to the totality of crimes provided for in Part 2 of Art. 208 and the corresponding article of the Criminal Code.
6. The subjective side is characterized by direct intent. Motives and goals may be different. An illegal armed formation may pursue non-criminal goals, which, due to its illegality and armament, i.e. obvious potential danger of formation, become destructive for society.
7. The subject of the crime is a person who has reached the age of 16 years. According to Part 1 of Art. 208, the organizers, leaders and persons who financed illegal armed groups are subject to liability, and under Part 2 of Art. 208 - persons who participated in it.
8. In accordance with the note to Art. 208 person is exempt from criminal liability if several conditions are met:
1) a crime provided for in Part 2 of Art. 208, committed for the first time;
2) it must voluntarily stop participating in illegal armed groups and surrender its weapons;
3) his actions do not contain signs of another crime.
Article 208. Claims to which the limitation period does not apply
Ruling of the Supreme Court of the Russian Federation dated January 24, 2017 N 310-ES16-19111 in case N A62-4540/2015 In accordance with paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N “On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period” the limitation period does not apply to the requirements expressly provided for in Article 208 of the Civil Code of the Russian Federation. These include the demands of the owner or another possessor to eliminate any violations of his right, if these violations were not associated with deprivation of possession, including demands to recognize the right (encumbrance) as absent, thus, the defendant’s statement about the need to apply the statute of limitations to satisfaction is not subject to.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated January 26, 2017 in case No. 306-ES14-7266, A65-28397/2013
The court of first instance, when re-examining the case by decision dated 09/02/2015, guided by Articles 1, 35, 36 of the Land Code, 552 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), recognized the filing of a claim as lawful in connection with the location of non-residential premises belonging to the plaintiff on the land plot on establishing the right of common shared ownership of the disputed land plot, citing the fact that, by virtue of Articles 208, 304 of the Civil Code, the statute of limitations does not apply to this claim.
Ruling of the Supreme Court of the Russian Federation dated January 30, 2017 N 310-ES16-228 in case N A35-5209/2014
In addition, the applicants do not agree with the court’s conclusions on the application of the limitation period for the stated claims, referring to the provisions of Article 208 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code). In accordance with Part 1 of Article 291.1, Part 7 of Article 291.6 and Article 291.11 of the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation), a cassation appeal is subject to transfer for consideration in a court session of the Judicial Collegium of the Supreme Court of the Russian Federation, if the arguments set out in it confirm the existence of significant violations of substantive law and (or) procedural law that influenced the outcome of the case, without eliminating which it is impossible to restore and protect the violated rights and legitimate interests of the applicant in the field of business and other economic activities.
Ruling of the Supreme Court of the Russian Federation dated 02/06/2017 N 306-ES16-19765 in case N A12-3539/2013
In support of the arguments of the complaint, the applicant points out that the courts, when issuing the appealed acts, did not apply the article of the Civil Code of the Russian Federation, the provisions of Articles 208, 218, 244, 290, 302 of the Civil Code of the Russian Federation, and Articles 135, 138 of the Housing Code of the Russian Federation were incorrectly applied.
Ruling of the Supreme Court of the Russian Federation dated March 1, 2017 N 304-ES17-431 in case N A45-7571/2015
The applicant’s arguments, including the lack of proof of the contribution of land shares to the plaintiff’s authorized capital, the expiration of the statute of limitations, were assessed by the courts with reference to the provisions of Articles 208, 304 of the Civil Code of the Russian Federation, Articles 65, 71 of the Arbitration Procedural Code of the Russian Federation in relation to established factual circumstances of the case and were rejected with reason.
Determination of the Constitutional Court of the Russian Federation dated February 28, 2017 N 291-O
In accordance with Article 126 of the Constitution of the Russian Federation, judicial supervision over the activities of courts in the procedural forms provided for by federal law is exercised by the Supreme Court of the Russian Federation, whose powers also include ensuring the unity of judicial practice, including through the adoption of appropriate clarifications binding on the courts. A special case of such clarifications are the provisions of paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation”, indicated by the applicants in the complaint, providing that in relation to controversial housing relations, one of the grounds for which is an agreement, a general three-year limitation period applies (Article 196 of the Civil Code of the Russian Federation). This clarification, as follows from its content, does not address the issue of the beginning of the limitation period (Article 200 of the Civil Code of the Russian Federation) and, accordingly, cannot serve as a justification for the existence of an established legal position of the Supreme Court of the Russian Federation on this issue. At the same time, the applicants’ arguments that the courts do not apply a statute of limitations to this type of claim do not correspond to the content of the judicial acts issued as a result of resolving the dispute with their participation. These judicial acts do not contain, as a legal basis, references to the provisions of Article 208 of the Civil Code of the Russian Federation, which establish the range of claims to which the limitation period does not apply.
Determination of the Constitutional Court of the Russian Federation dated February 28, 2017 N 386-O
As follows from the materials presented by the applicants, the decision made on the merits of the substantive legal dispute with their participation entered into legal force on May 26, 2015; The applicants first sent a complaint to the Constitutional Court of the Russian Federation containing a request to verify the constitutionality of Articles 208, 234 and 304 of the Civil Code of the Russian Federation only in November 2016. Thus, more than one year passed from the completion of the consideration of the applicants’ case in court until they filed a complaint with the Constitutional Court of the Russian Federation, and therefore their complaint in this part cannot be considered admissible.
Ruling of the Supreme Court of the Russian Federation dated 02/06/2017 N 304-ES16-19741 in case N A67-8365/2015
In addition, within the meaning of the explanations contained in paragraph 7 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N “On some issues related to the application of the Civil Code of the Russian Federation on the limitation period”, the requirement to recognize the right as absent is a type of negatory claim, on which, by virtue of paragraph five of Article 208 of the Civil Code of the Russian Federation, the limitation period does not apply.
Determination of the Constitutional Court of the Russian Federation dated March 28, 2017 N 632-O
1. By the decision of the arbitration court, left unchanged by the decisions of the courts of appeal and cassation, due to the expiration of the statute of limitations, it was refused to satisfy the claims of citizen G.V. Pracheva to joint-stock companies about the obligation to correct an error in maintaining the register of shareholders of a joint-stock company by entering information about G.V. into the register. Pracheva as a shareholder and issuing a corresponding certificate certifying ownership of four shares. At the same time, the courts, in particular, noted that, based on the specifics of a book-entry share, it is impossible to own it as a thing existing in tangible form in the form of physical possession; owners of uncertificated securities in accordance with Articles 2 and 28 of the Federal Law of April 22, 1996 N 39-FZ “On the Securities Market” are persons in respect of whom the corresponding entries are contained in the personal accounts of the register holder; the absence of these persons in the data on the registration of rights to shares indicates the absence of their actual control over the securities and deprives them of the opportunity to dispose of the shares and exercise the rights certified by them; therefore, the circumstances indicated by the plaintiff cannot be considered as violations similar to a violation not related to deprivation of possession, which, in turn, excludes the possibility of applying Articles 208 and 304 of the Civil Code of the Russian Federation to such relations.
Ruling of the Supreme Court of the Russian Federation dated April 14, 2017 N 303-ES17-2846 in case N A73-8267/2016
The Company's references to the provisions of Articles 208, 301 of the Civil Code of the Russian Federation were rejected by the courts, based on the fact that the legal relations of the parties arose from a government contract and were regulated by the norms of Chapter 37 of the said Code. The applicant's arguments were the subject of consideration by the courts, received an appropriate legal assessment and, in essence, were aimed at a different assessment of the evidence and the factual circumstances of the case.
Ruling of the Supreme Court of the Russian Federation dated April 27, 2017 N 305-ES16-20154 in case N A41-56603/2014
The department’s arguments about the plaintiff missing the statute of limitations were the subject of consideration by the courts and were rejected by them with reference to Article 208 of the Civil Code of the Russian Federation and the explanations set out in paragraph 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 9, 2010 N 143 “Review of judicial practice on Some courts have applied Article 222 of the Civil Code of the Russian Federation.”
