In countries of the Anglo-Saxon legal family, a system of case law is used, when the source of legal norms are court decisions on previously considered similar disputes. Although there is no such system officially in Russia, generalizations of judicial practice and clarifications of the Supreme Court are a guide to action for law enforcement officials.
In practice, the Supreme Court ruling on theft, robbery and robbery is of great importance (document details - No. 29 of December 27, 2002). The fact is that when qualifying cases of theft, despite their apparent simplicity, controversial issues often arise on which the fairness of the decision made and the punishment imposed depends. Although the Resolution on the generalization of judicial practice in this category of cases was adopted in 2002, its provisions are still relevant today.
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Definition of theft
In the criminal law of the Russian Federation there is a general concept of theft, which unites all crimes related to the seizure and appropriation of someone else's property for personal gain.
Types of theft according to the Criminal Code of the Russian Federation:
- theft;
- appropriation;
- extortion;
- robbery;
- fraud;
- robbery;
- embezzlement;
- hijacking
The Criminal Code of the Russian Federation has other articles in the corresponding chapter, but the types of theft mentioned above are the main ones.
Signs of theft
The need to adopt the Resolution was caused by qualification problems that arise in practice, which are explained by the similarity of elements of various crimes.
A distinctive characteristic of a crime such as theft is the secrecy of the act. And it doesn’t matter whether it’s an imaginary “secret” or a real one.
If the subject believed that his actions had no witnesses, the crime should be classified as theft. This explanation is given by the Plenum of the Armed Forces of the Russian Federation about theft, robbery and robbery. Representatives of law enforcement agencies, as a rule, are able to distinguish theft by this characteristic. But it is necessary to pay great attention to the intent of the subject of the crime and his subjective opinion about the circumstances of the act.
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What is open theft?
The highest judicial body defines robbery as the open theft of someone else's property (clause 3 of PPVS No. 29). It is the sign of openness that distinguishes robbery from other types of theft (slave, theft). That is, when qualifying a person’s actions, one should, first of all, establish the signs of theft listed in the Note to Art. 158 of the Criminal Code of the Russian Federation (clause 1 of PPVS No. 29), and then establish signs of openness of the crime committed.
Therefore, the Supreme Court explains to lower courts that openness of theft is possible only if the following signs are present:
- An objective sign means that there are persons who observe the process of seizure of property and understand the nature of the actions being performed. That is, the attacker commits theft either in front of the owner or in front of strangers.
- Subjective - the attacker must understand that the owner of the property or another person is observing his actions, and they understand that his actions are illegal. That is, the person realizes that his actions are noticeable to others.
Example:
Let's imagine that Ivan is walking through a shopping center and sees a stranger with an expensive mobile phone. Ivan runs up to him and snatches it from the man’s hands.
Of course, this theft is open, since, firstly, it occurs in full view of the owner and other visitors to the shopping center, and, secondly, Ivan understands that he is acting openly.
When is it wrong to talk about openness?
The Supreme Court also examines situations when it is impossible to talk about the openness of theft:
- If an outsider is present during the theft, observes the process, but does not understand the nature of the actions being performed, then we cannot talk about robbery (clause 4 of PPVS No. 29).
That is, if the seizure of property is carried out in the presence of persons who are not aware of the nature of what is happening next to them (persons suffering from mental disorders, minors, etc.), then the qualification must be according to Art. 158 of the Criminal Code of the Russian Federation as secret theft.Not only small children or people suffering from mental disorders may not realize the illegality of actions, but also those who believe that the attacker is acting legally.
Let's imagine that Ivan is in a shopping center and sees a bag forgotten by someone. He comes up and confidently takes her away as if he was the one who left her. Despite the fact that he is the one who takes the bag in front of everyone, the process of seizure and the criminal nature of the seizure are not realized by those around him. Therefore, under such circumstances, we are talking about secret theft, and not about robbery (clause 4 of PPVS No. 29).
- If a third person who is present during the theft and observes the seizure process correctly understands the nature of the actions being performed, but is not a stranger to the attacker, then it is also impossible to talk about robbery (clause 4 of PPVS No. 29).
We are talking about the presence of a close relative of the criminal during the theft.For example, Ivan and his wife are walking down the street and see a poorly locked car. Ivan opens the car and takes the property from there. At the same time, his wife stands nearby, but Ivan does not perceive her as a person who is going to interfere with his actions due to family relations. Ivan's actions should be classified as theft, not robbery.
If a close relative takes some actions aimed at preventing theft, and the attacker understands that the relative does not disapprove of his behavior and will oppose him in one way or another, then in the event of seizure of property, the person’s actions will be qualified as open theft.
The moment of ending
Robbery is a crime with a material element. In order for a person’s actions to be considered as a complete robbery, it is necessary to establish not only the seizure, but also the occurrence of socially dangerous consequences in the form of causing property damage, as well as a cause-and-effect relationship between them.
Consequently, the robbery is considered completed from the moment when the attacker has the opportunity to dispose of the stolen property as his own (clause 6 of the Resolution): sell it, use it, donate it, etc.
Recommended reading:
When is the robbery over?
Complicity in committing robbery
Possible problems in qualifying robbery
The difference between robbery and robbery
In practice, many questions arise about the other two crimes, which, having gone wrong, are committed clearly and openly, often “in broad daylight.” In fact, the line between them is very thin, it is not for nothing that the forensic characteristics of robberies and assaults, as a way of identifying typical features of the circumstances of the commission of these socially dangerous acts, are almost identical.
These are two different articles in the Criminal Code, and for good reason. The plenum gave an answer to the question - robbery and robbery: the difference, what is the difference between these two compounds. The line is drawn according to the method of committing the crime:
- In the first case (robbery), violence is not used.
- In the second (in case of robbery), violence is a mandatory condition for qualifying the act under Art. 162 of the Criminal Code.
According to paragraph 6 of the discussed Resolution of the Plenum of the Armed Forces of the Russian Federation, violence here means actions that create a danger to the life or health of the victim, or the threat of such actions.
The Constitutional Court considered that the provisions of the Criminal Code on robbery and robbery do not contain uncertainty
The Constitutional Court of the Russian Federation published Determination No. 1936-O/2020 on a complaint about the uncertainty of the norms of the Criminal Code of the Russian Federation on robbery and robbery, as well as a number of norms of criminal procedure legislation.
Previously, Sergei Zelenin was sentenced to imprisonment for committing robbery as part of a group of persons by prior conspiracy. In his cassation appeal, he pointed out the need to classify his act as robbery, as evidenced by the expert’s conclusion, which excluded the pistol used by the perpetrator to threaten the victims as a weapon; for violation of his right to defense in connection with the non-admission of another person as a defense attorney along with a lawyer; to the court’s arbitrary rejection of part of the victims’ testimony. The transfer of this complaint for consideration at a court hearing by the cassation court was refused.
In a complaint to the Constitutional Court, Sergei Zelenin challenged Part 1 of Art. 161 “Robbery” and part 2 of Art. 162 “Robbery” of the Criminal Code of the Russian Federation, as well as Part 1 of Art. 11 “Protection of human and civil rights and freedoms in criminal proceedings”, Part 2 of Art. 16 “Providing the suspect and accused with the right to defense”, paragraph 11, parts 4, 5 of Art. 47 “Accused” and part 2 of Art. 49 “Defender”, art. 195 “Procedure for appointing a forensic examination”, Art. 198 “Rights of the suspect, accused, victim, witness in the appointment and conduct of a forensic examination” and Part 1 of Art. 401.15 “Grounds for canceling or changing a court decision when considering a criminal case in cassation” of the Code of Criminal Procedure of the Russian Federation.
According to the applicant, the contested norms do not comply with the Constitution, since they allow law enforcement officers to ignore the statements of victims about their awareness of the faulty condition of the pistol, force them to give incriminating statements, untimely familiarize the accused with the decision to order a forensic examination, and deny him access along with another person’s lawyer to as a defense attorney due to the lack of legal education, do not explain to the defendant the right to appeal such a refusal, pass an unfounded verdict of guilty, qualifying the threat with a defective weapon as a sign of robbery. Sergei Zelenin added that the controversial norms - without specifying the concept of significant violations of criminal and criminal procedural laws - do not prevent the cassation judge from arbitrarily rejecting the arguments of the cassation appeal, citing arguments that are not based on the law.
Supreme Court - on the difference between crimes and their correct classification
The resolution of the Plenum of the Armed Forces of the Russian Federation on theft, robbery and robbery consists of 26 points. The main clarifications of the document regarding the qualification of acts (except for the provisions already given above) can be presented in the form of a list:
- openness and secrecy are determined by the presence of witnesses to the act, who can be either property owners or relatives of the subject of the crime, or individual third parties;
- if the persons present were not aware of the illegality of the actions being performed or they are close relatives of the subject, as a result of which he was counting on their leniency, the act should be recognized as theft. If these persons resisted, the crime should be recognized as robbery or robbery based on the use of violence;
- if illegal actions in relation to someone else's property were discovered during their commission, the crime loses its secrecy and becomes robbery or robbery. If such an action is committed by one member of the group, his actions also go beyond the signs of theft. The actions of the remaining members of the group are classified according to whether they continued the crime or not;
- The selfish motive is also of great importance. If the seizure was carried out in the absence of such a sign (for a while, for example), it does not fall under theft. Most often, such actions are qualified as arbitrariness.
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Crime escalation
An attacker’s actions do not always go according to a pre-developed plan. Situations often occur when a person intended to commit one crime, but due to circumstances beyond his control, committed another.
Escalation of crimes is a situation when, in the process of committing a crime, an initially planned act acquires the characteristics of another crime. Escalation is possible at the stage of an unfinished crime (preparation, attempt) and only from a less serious crime to a more serious one.
In paragraph 5 of the Resolution, the Supreme Court raises the problem of the development of one form of theft into another. Let's consider two possible situations:
- Theft escalates into robbery.
If the attacker initially planned to secretly steal someone else’s property, but during the process of seizure his actions were discovered by the owner or third parties, then he is liable for robbery, and not for theft.
Example from judicial practice:
Onegov came to visit his relative. While she was in the kitchen, he decided to secretly steal her TV.
Taking advantage of the fact that no one was watching him, he began to take out the TV, but a relative noticed his actions. She asked to return the TV, but Onegov ignored her request and stole the property.
In this situation, the Industrial District Court of Izhevsk qualified Onegov’s actions as robbery (clause “g” of Part 2 of Article 161 of the Criminal Code of the Russian Federation): Onegov’s actions, which began as theft, but were then discovered by the victim, represent the escalation of theft into robbery.
- The escalation of robbery into robbery.
If a person initially plans to commit open theft, but in order to take possession of property, the attacker uses violence against the victim that is dangerous to life or health, then his actions should be classified as robbery, and not as robbery.
Let's imagine that Ivan approached Peter in order to steal his phone. Initially, Ivan simply planned to snatch it from Peter's hands, but he did not want to give it up. So Ivan took out a gun and pointed it at Peter’s head, threatening to shoot if he didn’t give up the phone.
Since Ivan threatened the victim to use violence that would endanger his life, the actions of the attacker should be classified as robbery.
Excess of the perpetrator when committing a crime by a group of persons
Overgrowth is also possible if persons act in complicity (clause 14.1 of PPVS No. 29). That is, if the accomplices initially agreed to commit theft, but one of them went beyond the limits of the conspiracy and committed robbery, then only his actions should be qualified as open theft (the actions of others should be considered theft).
If other accomplices took advantage of his actions and continued the already open theft, then their actions also fall under robbery. A similar rule applies if the accomplices planned to commit a robbery, but in the process one of them began to use violence that was dangerous to life or health.
Let's imagine that Ivan, Peter and Denis approached Tatyana on the street at night and began to demand her bag. Initially, they planned to commit robbery. However, Ivan, seeing that Tatyana did not want to give up the bag, took out a knife and hit Tatyana with it. Peter and Denis got scared and ran away from the crime scene, and Ivan took the bag and went home.
In this case, only Ivan’s actions can be qualified as robbery, since Peter and Denis did not take advantage of the situation and did not use violence against the victim (their actions will be qualified as attempted robbery).
