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Assignment of punishment for a crime committed in complicity - free answers from lawyers online
The concept of complicity is explained in Art. 32 of the Criminal Code of the Russian Federation. It means the commission of a criminal act by several persons with intent. The coordination of criminal actions of citizens increases the social danger of the act.
Briefly about the concept of complicity in crime
Complicity, according to Art.
32 of the Criminal Code of the Russian Federation is nothing more than committing a crime in a group, the minimum number of which is 2 people, and the maximum is not limited. Details about complicity in a crime and its qualifications:
Complicity in a crime - concept and qualifications Read more
Please note: complicity takes place only if at least 2 persons who have all the characteristics of a subject of the crime participated in the commission of the crime.
We wrote in detail about who is recognized as the subject of a crime and what its mandatory features are in the article on the elements of the crime in the section “Subject of the Crime”:
The concept and meaning of the crime Read more
Thus, if a crime is committed in a group, but only one person from it has the characteristics of a subject of the crime, there is no complicity.
For example:
17-year-old N. and 15-year-old V., by prior conspiracy, stole the victim’s property by deception. The damage caused is not significant.
At first glance, all the signs of a crime under Part 2 of Art. 159 of the Criminal Code of the Russian Federation - fraud committed by a group of persons by prior conspiracy.
However, in accordance with Part 2 of Art. 20 of the Criminal Code of the Russian Federation, criminal liability for this crime begins at the age of 16. That is, 15-year-old V. is not a subject. Therefore, there is no complicity in this case. And since there are other signs that allow qualifying the act under Part 2 of Art. 159 of the Criminal Code of the Russian Federation, it is not seen that the actions of 17-year-old N. should be qualified under Part 1 of Art. 159 of the Criminal Code of the Russian Federation.
Read about the second mandatory sign of complicity—joint action—in “ConsultantPlus. If you don't have access to the system yet, you can get it for 2 days for free. Or order the current price list to purchase permanent access.
Arbitrage practice
Let's consider the sanction using a specific example - Sentence of the Sverdlovsk District Court of Irkutsk No. 1-1085/2017 dated December 28, 2017 in case No. 1-1085/2017. The suspects in the case of attempted car theft and theft on a significant scale were M.S. Kozyrev. and Shevchenko I.N.
One day, the accomplices, being near a cafe and being drunk, decided to steal a parked car. The initiative came from M.S. Kozyrev. The men conspired and began to implement the plan. Shevchenko I.N. He brought a screwdriver to his accomplice and began to observe what was happening, preparing to warn M.S. Kozyrev. about witnesses.
Kozyrev M.S. was able to open the car and sat in the driver's seat, his friend sat next to him. The men were unable to start the car, so they turned to a passerby with a request to help push the car. Unaware of their criminal intentions, he agreed. However, the crime was not completed: the men were detained by the police.
Both attackers do not work and have been repeatedly convicted of crimes of varying severity. As a result, the court sentenced them to equal punishment for complicity - 3 years in prison.
Grounds for criminal liability in cases of complicity
The general basis for criminal liability is the same - the commission of an action or inaction that contains all the signs of a crime provided for by any article of the Special Part of the Criminal Code of the Russian Federation.
The same applies to group crimes, that is, committed in complicity. But there is some peculiarity: responsibility comes not only to the direct perpetrators of a criminal act, but also to those who took part in its preparation, organization, assisted in covering up traces, etc.
In other words, the institution of complicity makes it possible to impose responsibility on persons who did not personally commit criminal acts, but carried out (Article 33 of the Criminal Code):
- directing the actions of the perpetrators of a crime or other activities to organize a criminal act;
- inducing someone to commit a criminal offense by any means;
- assistance in the commission of the acts in question by providing tools, information or other ways listed in Part 5 of Art. 33 of the Criminal Code.
Details about the types of accomplices, forms and types of complicity:
Forms of complicity in a crime and types of accomplices Read more
Thus, in addition to the direct perpetrator(s), organizers, instigators and accomplices, respectively, may be held liable.
Signs of participation and complicity
Crimes committed by a criminal group, as a rule, are investigated especially carefully and the responsibility for such criminal acts is assigned significantly more serious, since crimes in this category are considered especially dangerous to society. This attitude is determined by the fact that a group of several citizens participates in a criminal act and the damage is much greater than when the criminal acts alone.
There are a huge number of theoretical studies devoted to planning and complicity in criminal acts. In order not to get confused during the investigation, it is necessary to take into account both objective signs of a crime and subjective ones. Objective signs are acts in which:
- Illegal acts are committed only by a large number of persons, for example, a rally or rebellion (Article 279, Article 212 of the Criminal Code of Russia).
- The crime is planned jointly; for example, a situation cannot be ruled out when two criminals can rob a warehouse at the same time. In this case, liability can be of two types: under Article 158, when each criminal robbed, regardless of the other; under Article 35, when the robbery is carried out by two or more persons acting in concert.
- A common goal and result for two or more criminals, for example, an organized criminal group planned and set out to rob a store with the goal of selling the loot and dividing the proceeds between the participants in the robbery.
The signs of acts in which:
- The participants in a particular criminal act know each other. For example, the collector let a friend know where and when the collection would take place. His friend, using the information, carried out the robbery with his friends.
- There is no commonality of the final result, that is, when participants have different motives for committing a crime. For example, a businessman ordered a criminal to kill a competitor, and the killer, having agreed to fulfill the order, wants to rob his competitor after completing the order.
A person who does not even have the intent and desire to help commit a crime can become an accomplice. For example, when a security guard got scared and, instead of preventing a robbery, simply hid. In such a situation, his inaction can be considered complicity because, not wanting to receive bodily harm, he deliberately did not intervene.
A similar situation often occurs in terms of the performance of official duties by the director, his deputy or the chief accountant. Deceiving your employees, concealing profits, and evading tax payments can fall into the category of illegal acts such as complicity and aiding and lead to criminal prosecution.
Despite the fact that “ignorance is no excuse”, ignorance that a criminal act is being committed and the absence of deliberate intent can become a factor that exempts from liability. The participation of a lawyer in a criminal case will help to understand each specific situation and resolve the case in favor of the client.
What is taken into account when assigning punishment for a crime committed in complicity?
In accordance with Art. 34 of the Criminal Code, when assigning punishment for a crime committed in complicity, the following circumstances should be taken into account:
- the nature and extent of the actually established participation of each accomplice, regardless of his status;
- the significance of the participation of each subject in achieving the criminal goal;
- the impact of the actions or inaction of a specific person on the harm caused by the crime.
It seems that, when speaking about the nature and degree of participation in a crime, the legislator did not sufficiently specify this concept. Legal scholars agree that for correct law enforcement, this should be understood as the direct role of a specific person in the commission of a crime, in other words, the type of complicity provided for in Art. 33 of the Criminal Code of the Russian Federation.
Determining the meaning of the actions of each accomplice can be extremely important both for the qualification of the act itself and for the imposition of punishment. For example, when imposing punishment under Art. 210 of the Criminal Code (organization of a criminal community), it is necessary to establish who exactly acted as the leader of the criminal community. Clause 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 2010 No. 12 allows us to formulate approximate signs by which such a leader can be identified.
We are talking, in particular, about the functions of the latter, which can be expressed:
- in determining the goals of the creation and functioning of the community;
- developing plans for its activities;
- directly preparing crimes of grave and especially grave categories;
- giving instructions to other community members;
- distribution of income received as a result of criminal activity, etc.
Judicial practice shows that organizers and perpetrators bear increased responsibility under the sanctions of the corresponding article of the Special Part of the Criminal Code for crimes committed in complicity than accomplices and instigators.
This is to some extent due to the fact that the degree of direct influence of the latter on the amount of harm caused is significantly lower than that of the organizer or performer.
Details about judicial practice on complicity in a crime:
Judicial practice on complicity in a crime Read more
Commentary to Art. 67 Criminal Code
1. Punishment for each accomplice is assigned separately and depends: firstly, on the nature of participation in the crime, i.e. the role he played in the crime. The criminal law does not differentiate the responsibility of accomplices depending on the roles they perform, so the actions of the organizer will not necessarily be punished more severely than the activities of the instigator, accomplice or performer.
Secondly, on the degree of participation, i.e. activity in committing a crime. An active role is a circumstance that aggravates punishment (clause “d”, part 1, article 63 of the Criminal Code).
Thirdly, on the significance of his participation in achieving the goal of the crime and the impact on the nature and extent of the damage caused or possible.
2. Taking into account all these circumstances allows us to individualize the type, duration and amount of punishment imposed on the accomplices.
Taking into account additional circumstances when determining criminal liability for complicity
In Art. 67 of the Criminal Code stipulates that mitigating and aggravating circumstances must be taken into account by the courts when determining the penalty in the cases under consideration. Likewise, the role of each accused and the circumstances that may characterize him are determined.
Consideration of mitigating circumstances
According to Part 2 of Art. 67 of the Criminal Code, mitigating circumstances (as well as aggravating ones) related only to one of the accomplices are taken into account exclusively when assigning punishment to him. These circumstances do not apply to other members of the group.
For example, one of the accomplices committed a murder motivated by sympathy and compassion for a relative suffering from an incurable disease, and the other incited him to do this in order to prevent the victim from discovering the loss of previously stolen funds.
The actions of the first will be qualified under paragraph “g” of Part 2 of Art. 105 of the Criminal Code (in the absence of other qualifying criteria), but mitigating circumstances, which here serve as the motive for the crime, must be recognized and taken into account.
The actions of the instigator must be assessed under Part 4 of Art. 33 (actually incitement), and to the already mentioned paragraph “g”, part 2 of Art. 105 of the Criminal Code (group murder), paragraph “k” of the same norm should be added (murder in order to conceal another crime).
Note! The organizer and instigator have the additional opportunity to mitigate the punishment by contacting the authorities or otherwise trying to prevent the perpetrators from committing the crime.
Moreover, if it is possible to avoid the intended crime, then such subjects, by virtue of Part 4 of Art. 31 of the Criminal Code will be exempt from liability. The law is even more loyal to the accomplice: to be released from liability, it is enough for him to do everything possible to prevent the crime, regardless of whether he succeeds in achieving this goal or not.
Mitigating and aggravating circumstances
Circumstances mitigating punishment formulate a reduced degree of social danger of the act. Aggravating circumstances are opposite in meaning and express a strong degree of social danger of the guilty act. Together they provide the process of individualization of punishment.
Mitigating circumstances are signs of a subjective and objective nature that go beyond the elements of a criminal act, information about the identity of a citizen, which reduces the level of public danger.
The above circumstances are provided for in Art. 61 of the Criminal Code of the Russian Federation:
- A person has committed a crime for the first time, it has a low degree of severity, and it happened due to an unfortunate coincidence of circumstances. A crime committed for the first time is a guilty act that the person has not had in the past; the citizen has no criminal record. A slight degree of severity is explained in Art. 15 of the Criminal Code of the Russian Federation.
- The crime was committed by a person under 18 years of age.
- The crime was committed by a pregnant woman.
- The offense was committed by a person who has dependent children under 3 years of age.
- The guilty act was committed out of compassion, due to the difficult circumstances of life.
- Committing a crime due to coercion of a physical or psychological nature.
- Going beyond the limits of necessary defense.
- Confession.
- Immorality, illegality of the actions of the injured party.
- Providing medical assistance to the victim immediately after the commission of a criminal act.
The list of circumstances that mitigate guilt is not closed. This means that when imposing a sentence, the court may take into account other facts not included in the list of Art. 61 of the Criminal Code of the Russian Federation.
Aggravating circumstances are facts that go beyond the scope of the crime, its objective and subjective characteristics, and information about the individual. Aggravating facts increase the danger of the act.
Aggravating circumstances are contained in the list of Art. 63 of the Criminal Code of the Russian Federation:
- Repetition of a guilty act.
- Formation of serious consequences of the crime committed.
- The implementation of criminal plans by a group of citizens, in concert, by a criminal community.
- Active actions in committing a guilty act.
- Involvement by a citizen in a crime of a person who suffers from a mental illness, is intoxicated, as well as teenagers under 18 years of age.
These circumstances increase the danger of the crime, thus aggravating the guilt.
