Article 278 of the Criminal Code of the Russian Federation with Commentary 2022: latest changes and amendments, judicial practice

Commentary to Art. 278 Criminal Code

1. The objective side of the crime is expressed in the form of actions: a) seizure of power; b) retention of power in violation of the Constitution of the Russian Federation; c) actions aimed at forcibly changing the constitutional system of the Russian Federation. Seizure of power is an unlawful overthrow, removal from power of legitimate representatives in order to obtain power. Retention of power in violation of the Constitution of the Russian Federation is the retention, retention of power in violation of the fundamental law by persons to whom it previously belonged legally or by forcibly seizing power. A change in the constitutional system is a complete or partial change in the basic principles of social standing and state organization that characterize the constitutional system of the Russian Federation.

The violent nature of these actions means the use or demonstration of readiness to use force primarily using weapons and (or) specialized means by persons, groups of citizens, organizations in the process of carrying out these actions. The forcible seizure of power or the forcible retention of power may be accompanied by beatings, intentional harm to health, forced isolation, etc.

2. The crime is considered completed from the beginning of the commission of these violent actions, regardless of the occurrence of consequences and achievement of the set goals.

Second commentary to Art. 278 of the Criminal Code of the Russian Federation

1. The object of the crime is the legitimacy of state power.

2. The objective side of this crime is formed by actions aimed at:

a) violent seizure of power;

b) forcible retention of power in violation of the Constitution of the Russian Federation; c) violent change of the constitutional system of the Russian Federation.

The violent seizure of power is the seizure of power by force (mostly armed) by persons, groups, or organizations to which power did not belong. The forcible retention of power is its forcible preservation in violation of the Constitution of the Russian Federation by persons to whom it previously belonged by law (the Constitution of the Russian Federation).

3. The subjective side of the crime is characterized by direct intent.

4. The subject of a violent seizure of power is a person who has reached the age of 16. The subject of forcible retention of power is the former holder of state power, who, according to the Constitution of the Russian Federation, is obliged to transfer it to other persons (persons).

Notes[edit]

Slava Rabinovich: Putin and the main members of his organized crime group must be tried
Matvienko spoke about Putin, who raised Russia from its knees, and the 2024 elections
Slava Rabinovich: how many years will Putin accumulate in total? And how much for his accomplices?
Putin carried out a coup 6 years ago

Third commentary to Article 278 of the Criminal Code of the Russian Federation

1. This crime encroaches on those foundations of the constitutional system of Russia, where the principles and procedure for the formation and functioning of state power are enshrined. The Constitution states that “the only source of power in the Russian Federation is its multinational people. The people exercise their power directly, as well as through state authorities and local governments” (Parts 1 and 2 of Article 3 of the Constitution of the Russian Federation). The highest expression of power is a referendum or free elections (Part 3 of Article 3). State power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly, the Government of the Russian Federation, and the courts of the Russian Federation. State power in the constituent entities of the Russian Federation is exercised by the state authorities formed by them (Parts 1 and 2 of Article 11 of the Constitution of the Russian Federation). Any way of unconstitutionally coming to power and retaining it is illegal. “No one can appropriate power in the Russian Federation. Seizure of power or appropriation of power is prosecuted under federal law” (Part 4 of Article 3 of the Russian Federation). In the case of a forcible seizure or forcible retention of power, the direct object of the crime is the interests of the people as the main source of power, as well as the legitimate rights and interests of the above-mentioned individuals and legal entities exercising power.

2. The objective side of the crime is expressed in three types of actions: a) violent seizure of power; b) forcible retention of power; c) violent change of the constitutional system. Actions aimed at the violent seizure of power can be expressed either in the physical elimination of persons lawfully exercising power, or in their forced isolation and the self-proclamation in their place of those who carry out illegal actions. Actions can be local in nature, associated with the seizure of one of the branches of government (legislative, executive or judicial), or large-scale, directed against all branches of government. They may relate to the activities of central authorities or to the authorities of the constituent entities of the Federation. Violent actions to seize power can be expressed in causing harm to a person’s health of varying severity, which is covered by the elements of this crime. If the forcible seizure involves the deprivation of life, then the actions of the perpetrator should, depending on the motives and goals, be qualified in aggregate or under Art. 277 of the Criminal Code, or with premeditated murder (Article 105 of the Criminal Code of the Russian Federation). The seizure of power may be accompanied by direct blocking of the work of representative and other government bodies (isolation of deputies, preventing them from entering work premises, threats of physical violence, presentation of ultimatums, etc.). The crime is considered completed from the moment the actions aimed at the violent and actual seizure of power are committed. If the seizure of power is carried out by a criminal community, then the actions of the perpetrators are qualified in conjunction with Art. 210 CC.

As a real totality with Art. 212 of the Criminal Code qualifies the actions of subjects if, in the process of seizing power, they were organizers of mass riots, or under Art. 279 of the Criminal Code, if they organized an armed rebellion. Actions aimed at forcibly retaining power are expressed in preventing the functioning of the constitutional system of power, i.e. power is retained either by those whose term of office has expired, or by those who previously seized it illegally. The fact of forcible retention of power means that subjects of legitimate power are deprived of the opportunity to exercise their functions, and those who have illegally seized it control the adoption and execution of their decisions by violent methods and means. The nature of violent actions and options for qualifying them in combination with other crimes here is similar to the previous type of crime. Actions aimed at forcibly changing the constitutional system form the next stage of illegal encroachment, when, after the seizure or illegal retention of power, a new system of state power is formed and the constitutional system changes. A change in the constitutional system is expressed in a change in the structure of state power, the abolition of some institutions of power (for example, the abolition of the post of president) and the introduction of new ones, the narrowing of the democratic principles of government, the forcible adoption of a new “constitution” with significant deformations of individual rights and freedoms, etc.

3. From the subjective side, the crime is committed with direct intent, i.e. the perpetrator is aware of the social danger of actions aimed at forcibly seizing or retaining power, as well as forcibly changing the constitutional system of Russia, and wants to commit these actions. The motives may be incentives based on ideological rejection or direct hatred of the existing constitutional system. If these actions, for example, for mercenary reasons, are committed by a citizen of Russia on the instructions of a foreign state, a foreign organization or their representatives, then they are qualified in conjunction with high treason (Article 275 of the Criminal Code) as providing assistance to the specified recipients in carrying out hostile activities against the Russian Federation. The goal, as a constructive feature of this crime, is logically related to the direction of the actions performed by the person - to forcibly seize or retain power or change the constitutional system of the Russian Federation.

4. The subject of the crime can be a citizen of Russia, a foreign citizen or a stateless person of sane, who has reached 16 years of age.
This crime is subject to the incentive norm formulated in the note to Art. 275 of the Criminal Code. ‹ Article 277. Encroachment on the life of a state or public figureUp Article 279 of the Criminal Code of the Russian Federation. Armed rebellion ›

Violent seizure of power or violent retention of power. Armed rebellion

Article 278. Forcible seizure of power or forcible retention of power

The object is the political system of the Russian Federation

The objective side of the crime is expressed in actions aimed at: 1) violent seizure of power in violation of the Constitution of the Russian Federation; 2) forcible retention of power in violation of the Constitution of the Russian Federation; 3) violent change of the constitutional system of the Russian Federation. Actions aimed at the violent seizure of power can be expressed in the physical elimination of persons exercising legitimate powers of power, or in their forced isolation and the self-proclamation in their place of those who carry out illegal actions. Such actions can be either local in nature, associated with the seizure of positions in one of the branches of government (legislative, executive or judicial), or large-scale, aimed at all branches of government.

The crime encroaches on those foundations of the constitutional system of Russia, which enshrine the principles and procedure for the formation and functioning of state power.

Seizure of power is the overthrow, unlawful removal of authorized persons from power and the unauthorized seizure of it by persons, groups, or organizations to which this power did not belong.

Retention of power is the continuation of its exercise after the legal termination of powers, committed in violation of the Constitution of the Russian Federation by persons to whom power previously belonged under the Constitution.

Changing the constitutional system consists in undermining its foundations, enshrined in Chapter. 1 of the Constitution of the Russian Federation. In the literature, the essence of the constitutional system is defined as a holistic embodiment in the actually developing Constitution and in the practice of public relations of a set of unshakable fundamental values and principles that predetermine humane, legal relations between people, civil society and the state and their subordination to the norms and institutions of the constitutional system.

These include the democratic nature of the state and the republican form of government (Article 1), the inviolability of the rights and freedoms of man and citizen and its legal status (Articles 2, 6), democracy (Article 3), the supremacy of the Constitution of the Russian Federation and federal laws (Article 4, 15), federal structure (Article 5), separation of powers (Article 10), ideological and political pluralism (Article 13), etc.

Subjects of a crime under Art. 278 of the Criminal Code can be any physically sane person who has reached the age of 16

age.

The subjective side of this crime is characterized by intentional guilt in the form of direct intent

. The person is aware that he is participating in actions aimed at a violent seizure of power or a violent illegal (in violation of the Constitution of the Russian Federation) retention of power or a violent change in the constitutional system of the Russian Federation, and desires this.

The crime is considered completed from the moment of committing actions aimed at violently seizing or retaining power or changing the constitutional system of the Russian Federation ( formal composition ).

This crime is subject to the incentive norm specified in the note to Art. 275 ( Note : A person who has committed crimes provided for in this article, as well as Articles 276 and 278 of this Code, is exempt from criminal liability if he, by voluntary and timely notification to the authorities or otherwise, contributed to the prevention of further damage to the interests of the Russian Federation and if in his actions does not contain any other corpus delicti).

Article 279. Armed rebellion.

The object of the crime is the foundations of the constitutional order

, as well as
the territorial integrity of Russia
. Violent actions during an armed rebellion also endanger the lives and health of citizens.

The objective side of the crime is expressed in two types of acts: organizing an armed rebellion; active participation in it

Organizing an armed rebellion means the activity of an organizer to unite the efforts of a significant number of armed individuals to act against the constitutional authorities. The scale of an armed rebellion can be different and depend on many factors (regional, focused on a certain category of people by profession, social status, national or ethnic composition).

The actions of the organizer are expressed in the development of a plan for armed action against the authorities, the preparation of program documents designed to unite people, the creation of organizational structures for armed actions and the involvement (recruitment) of citizens in them, the leadership of an armed contingent during the implementation of a plan to overthrow or forcibly change the constitutional system of Russia or the seizure of part of the territory of the Russian Federation, etc. Armament

means that a significant number of persons committing illegal acts have weapons and a real possibility of using them.

Active participation in an armed rebellion means actions to overthrow or forcibly change the constitutional order or violate the territorial integrity of the Russian Federation. This can be expressed in the self-declaration of a separate territory of Russia as an independent state, an armed seizure of power, the use of repression against officials of legally constituted government bodies, disobedience to the demands of the federal authorities, armed resistance to federal military contingents called upon to restore constitutional order, agitation and propaganda, etc.

Subjects of an armed rebellion can only be its organizers and active participants aged at least 16 years

. Passive members of an armed group who did not directly participate in actions to overthrow or forcibly change the constitutional order are not subjects of this crime and can only be held responsible for those actions that contain signs of other crimes (for example, participation in an illegal armed group - Art. 208, illegal storage of weapons, explosives and explosive devices - Article 222, etc.).

Subjective side . The crime is committed with direct intent

, i.e.
the organizer and active participant in an armed rebellion are aware of the socially dangerous nature of their actions and wish to carry them out. A mandatory feature of the subjective side of this crime is the presence of goals of overthrowing or violently changing the constitutional order
or violating the territorial integrity of the Russian Federation.

Composition – formal

Question 56. Sabotage (Article 281 of the Criminal Code). Difference from the deliberate destruction or damage of property, from terrorism.

The object is social relations in the sphere of normal functioning of state power, economic security and defense capability of the state.

The subject of the crime are enterprises

(plants, factories),
structures
(bridges, dams, tunnels, power plants),
routes and means of communication
, railway, water and air
transport
,
communications
,
life support facilities for the population
(water supply systems, product pipelines, warehouses with food and fuel and lubricants) etc.

The objective side is characterized by the commission of active actions

— committing an explosion, arson or other actions (collapses, floods, rockfalls, accidents, disasters, etc.). These generally dangerous actions are aimed at destroying or damaging the specified enterprises, structures, etc., related to the subject of the crime.

The destruction of these items means rendering them completely unusable, when they cannot be restored or their restoration is not economically profitable.

Damage is the rendering of objects partially unusable when their restoration is possible and economically feasible.

Subject – a sane individual who was 16 years old

Subjective side . Sabotage is committed with direct intent

, i.e. the person is aware of the socially dangerous nature of the actions associated with committing an explosion, arson or other action aimed at destroying or damaging the above-mentioned material objects, and wishes to commit these actions and the consequences to which they will lead.

Motives

sabotage can be different (revenge, self-interest, political hatred of the existing constitutional system, etc.).
A mandatory feature of the subjective side of a crime is the goal of undermining the economic security and defense capability of the Russian Federation.
The sabotage is considered completed

a crime from the moment of committing an explosion, arson and other similar actions, regardless of whether the consequences specified in the law occurred or not, i.e.
formal composition .
The resulting material damage is taken into account, but does not affect the qualification of the act, but rather the determination of the degree of guilt and the imposition of punishment. Qualified staff . Part 2 art. 281UK:

a) committed by an organized group;

b) causing significant property damage or other grave consequences.

Particularly qualified staff . Part 3 art. 281 CC:

A) entailed the intentional infliction of death on a person.

Distinction from intentional destruction or damage to property . According to the objective properties of the act, sabotage is similar to some ordinary crimes (Articles 167, 261, 267). Their difference from sabotage lies in the fact that they cause damage to other areas of social relations (objects) and when they are committed, the perpetrator does not have the provisions specified in Art. 281 goal is to undermine the economic security and defense capability of Russia.

from terrorism in the direction of committing generally dangerous actions. The goals of terrorism, in contrast to the stated goal of sabotage, are to violate public safety, intimidate the population, or influence the decision-making of government authorities. In principle, an ideal combination of sabotage and terrorism is possible if the perpetrator, while committing a generally dangerous act (explosion, arson, etc.), simultaneously pursues the goals provided for in Art. 205 and 281 of the Criminal Code.

If sabotage is committed by a citizen of the Russian Federation on instructions from representatives of a foreign state or foreign organization, his actions are qualified in conjunction with high treason in the form of assistance in carrying out hostile activities against Russia.

Laundering) of funds or other property acquired by criminal means. Restriction from the acquisition or sale of property known to have been obtained by criminal means. (Articles 174, 174.1).

Legislative regulation of liability for laundering “dirty” money is necessary primarily in the interests of combating organized crime in order to undermine the financial basis of this crime.

This task is relevant for many countries, as evidenced by the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, adopted in Strasbourg on November 8, 1990, and the UN Convention against Transnational Organized Crime, adopted at a conference in Palermo 12 - December 15, 2000, and other documents of the world community.

Criminals seek to legalize the colossal funds received from the drug and weapons trade, illegal gambling and drug business, smuggling, theft, and other illegal activities, to make them appear legal, and to put them into circulation.

The adoption of the Federal Law of August 7, 2001 “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism” determined the need to amend Art. 174, 174.1UK.

The direct object of the crime is public relations in the sphere of legal business and other economic activities

The subject of this crime can be cash, securities in Russian or foreign currency and other movable as well as immovable property

, purchased both in Russia and abroad. The law emphasizes that the method of acquiring this property must necessarily be criminal, however, the range of crimes that are the source of the subject of the crime is limited, excluding the crimes provided for in Art. 193, 194, 198, 199, 199.1,199.2 of the Criminal Code.

Objective side . According to the law, the legalization of funds or other property acquired by obviously illegal means can be carried out in two

different
ways
:

- through financial transactions

;

- by making other transactions

The execution of financial transactions consists of such actions as placing the above funds in bank accounts under a bank deposit agreement; purchasing with such funds shares, bonds and other securities issued by commercial organizations, etc.

Conducting other transactions means using the specified funds or property when concluding various civil transactions: purchase and sale, barter, loan, contract, etc.

The subject of a crime under Article 174

, is not any person who has reached the age of 16, but only one who did not participate in the commission of the primary crime, as a result of which the legalized property was acquired.
The subject - the perpetrator of the act provided for in Article 174.1
can only be that person (from 16 years of age) who, as a perpetrator or other accomplice, took part in the commission of the primary crime, which brought him (them) income subject to legalization, i.e.
to some extent we can say that subjects are special
.

The subjective side of the crime is characterized by direct intent

. The person is aware that he is carrying out financial transactions and other transactions with proceeds of crime and wishes to carry out these actions. The goal is to give legality to the ownership, use and disposal of the specified funds or property. The motive is most often selfish, but there may also be other personal interests. In this case, if the perpetrator knows for certain that money or property was received by another person as a result of committing a particularly serious crime, then criminal liability is possible for a set of crimes provided for in Articles 174 and 316 of the Criminal Code (concealment of a crime).

Composition – formal

Qualified types are the following acts committed:

— on a large scale (Part 2 of Article 174 of the Criminal Code);

— by a group of persons by prior conspiracy (part 3 of article 174, part 2 of article 174.1);

- by a person using his official position (part 3 of article 174, part 2 of article 174.1);

- an organized group (part 4 of article 174, part 3 of article 174.1). Moreover, the last three signs have a qualifying value only if legalization is carried out on a large scale. Regarding Art. 174.1 of the Criminal Code, then the commission of these actions on a large scale is included in Part 1 and is not a qualified offense.

Group members

in relation to this crime will be all persons who, in one way or another, directly participated in the commission of financial transactions and other transactions with funds and other property acquired by obviously illegal means. If there is a preliminary conspiracy, all participants in these operations bear criminal liability for a single group crime.

The crime is considered to be committed on a large scale

if the value of the property being legalized (laundered) exceeded six million rubles.

Under a person using his official position

when legalizing (laundering) funds or other property acquired by criminal means, an official, as well as a person performing managerial functions in a commercial or other organization, is understood. These could be bank employees, tax and law enforcement officials, management employees of various commercial organizations, etc.

organized crime primarily strives to legalize criminally acquired property

, then the process of legalization often involves extensive, stable, organized groups of criminals who have united in advance for this activity. A criminal community (criminal organization) can also launder funds obtained through illegal means. Having recognized the existence of a criminal community (criminal organization) engaged in the legalization (laundering) of funds or property acquired illegally, the organizers and leaders of this community must be additionally brought to justice under Part 1 of Article 210, and the participants of the criminal community (organization) - under Part 2 Article 210.

Restriction from the acquisition or sale of property known to be obtained by criminal means.

It should be noted that the crime in question is similar to the crime provided for in Article 175 of the Criminal Code. In both cases, the perpetrator knowingly knows that he is making a transaction with property obtained as a result of the commission of a crime by another person. The difference is that in the first case (Article 174 of the Criminal Code) the perpetrator makes a transaction in order to give this property a legal character. In the second (Article 175 of the Criminal Code) there is no such goal. If a person who has acquired such property then takes measures to legalize it, then his actions contain elements of both Articles 174 and 175.

Article 278. Forcible seizure of power or forcible retention of power

The object is the political system of the Russian Federation

The crime encroaches on those foundations of the constitutional system of Russia, which enshrine the principles and procedure for the formation and functioning of state power.

Seizure of power is the overthrow, unlawful removal of authorized persons from power and the unauthorized seizure of it by persons, groups, or organizations to which this power did not belong.

Subjects of a crime under Art. 278 of the Criminal Code can be any physically sane person who has reached the age of 16

age.

The subjective side of this crime is characterized by intentional guilt in the form of direct intent

Article 279. Armed rebellion.

The object of the crime is the foundations of the constitutional order

, as well as
the territorial integrity of Russia
. Violent actions during an armed rebellion also endanger the lives and health of citizens.

The objective side of the crime is expressed in two types of acts: organizing an armed rebellion; active participation in it

means that a significant number of persons committing illegal acts have weapons and a real possibility of using them.

Subjects of an armed rebellion can only be its organizers and active participants aged at least 16 years

Subjective side . The crime is committed with direct intent

Composition – formal

Question 56. Sabotage (Article 281 of the Criminal Code). Difference from the deliberate destruction or damage of property, from terrorism.

The object is social relations in the sphere of normal functioning of state power, economic security and defense capability of the state.

The subject of the crime are enterprises

The objective side is characterized by the commission of active actions

The destruction of these items means rendering them completely unusable, when they cannot be restored or their restoration is not economically profitable.

Damage is the rendering of objects partially unusable when their restoration is possible and economically feasible.

Subject – a sane individual who was 16 years old

Subjective side . Sabotage is committed with direct intent

Motives

a) committed by an organized group;

b) causing significant property damage or other grave consequences.

Particularly qualified staff . Part 3 art. 281 CC:

A) entailed the intentional infliction of death on a person.

Laundering) of funds or other property acquired by criminal means. Restriction from the acquisition or sale of property known to have been obtained by criminal means. (Articles 174, 174.1).

Legislative regulation of liability for laundering “dirty” money is necessary primarily in the interests of combating organized crime in order to undermine the financial basis of this crime.

The adoption of the Federal Law of August 7, 2001 “On combating the legalization (laundering) of proceeds from crime and the financing of terrorism” determined the need to amend Art. 174, 174.1UK.

The direct object of the crime is public relations in the sphere of legal business and other economic activities

The subject of this crime can be cash, securities in Russian or foreign currency and other movable as well as immovable property

Objective side . According to the law, the legalization of funds or other property acquired by obviously illegal means can be carried out in two

different
ways
:

- through financial transactions

;

- by making other transactions

Conducting other transactions means using the specified funds or property when concluding various civil transactions: purchase and sale, barter, loan, contract, etc.

The subject of a crime under Article 174

The subjective side of the crime is characterized by direct intent

Composition – formal

Qualified types are the following acts committed:

— on a large scale (Part 2 of Article 174 of the Criminal Code);

— by a group of persons by prior conspiracy (part 3 of article 174, part 2 of article 174.1);

- by a person using his official position (part 3 of article 174, part 2 of article 174.1);

Group members

The crime is considered to be committed on a large scale

if the value of the property being legalized (laundered) exceeded six million rubles.

Under a person using his official position

organized crime primarily strives to legalize criminally acquired property

Restriction from the acquisition or sale of property known to be obtained by criminal means.