Responsibility of accomplices in crime. Lawyer's comment

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The responsibility of accomplices in a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime.

Liability of accomplices in crime

The meaning of complicity in the Criminal Code of the Russian Federation

As already mentioned, the responsibility of accomplices in a crime is determined depending on the nature of their actions during the commission of a crime: perpetrator, organizer, instigator, accomplice. According to Article 32 of the Criminal Code of the Russian Federation, complicity in a crime is the intentional joint participation of two or more persons in the commission of an intentional crime. As a rule, the joint criminal activity of accomplices increases the overall danger of the crime. In this regard, in accordance with Article 63, Part 1 of the Criminal Code of the Russian Federation, an aggravating circumstance during the imposition of punishment is the commission of a crime as part of a group of persons by prior conspiracy and participation in the crime.

However, the actions and their role in the commission of a crime of individuals who took part in the crime are different. Such persons are primarily divided into organizers - the most active participants in the crime committed.

Similarly, there are participants in a crime who ended up at the crime scene by chance, but nevertheless caused certain damage or contributed in some way to the crime committed. Because of this, each participant bears his own responsibility for his actions in strict accordance with his role in the crime committed. That is, the criminal liability of accomplices in a crime differs according to their role in the crime.

Features of complicity in fraud

Complicity in committing secret theft has an objective side. As with any other type of criminal offense, there are characteristic features:

Fraudulent actions are carried out with the participation of two or more persons. Depending on what kind of fraud it is, in the case of complicity, third parties (accomplices) are present. Moreover, these are physical persons who are aware of the commission of fraud.
Complicity is included in the joint nature of the commission of a crime. One or more types of secret theft are carried out by the joint efforts of the parties (for example, two perpetrators, an official criminal and their concealer). The result of the criminal act is beneficial to all participants in the theft, and therefore is common. This result follows from the criminal actions of each of the participants, including accomplices.
The presence of different motives, but the commonality of the result Fraudulent interests may be different for the participants. For example, one of the attackers wants to get rich, and the other wants to harm an unwanted person. The secret theft of the victim's property will satisfy the interests of both fraudsters, but the overall goal of the secret theft will not change.
Complicity in fraud The structure of a criminal act consists of the purpose, participants and circumstances of the crime. In order to understand who is involved in the entire procedure, one should consider the participants and accomplices: 1. The perpetrator is a sane individual who took part in the secret theft alone or together with other persons. However, such persons do not include minors, because they do not fall under the category of sane persons under criminal law. 2. Organizer – the immediate leader or founder of a criminal group, including persons who provided selfish “help”. 3. Instigator – an individual who persuaded another subject to commit an unlawful act (through blackmail, bribery, threats, etc.). 4. Accomplice - a sane individual who assisted in committing fraud by providing information, his instructions, advice or removing obstacles to conceal evidence. An important aspect of facilitating a crime is the intentional nature of the actions. In other words, such a person is well aware of his participation in the scam.

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Thus, we see that this offense is necessarily included in the structure of the commission of a crime and is also qualified under Art. 159 of the Criminal Code of the Russian Federation.

Forms of complicity

The Criminal Code divides all participants in a crime into two main forms of complicity, such as co-execution and complicity with the performance of various roles.

Co-execution is a form of participation in a crime, during which more than two persons fully or partially fulfill by their actions the objective side of a given law-violation. When viewed objectively, the perpetrator commits an action that constitutes the same crime. Each performer performs the objective side together with other participants.

When viewed from a subjective perspective, co-execution is each participant's full understanding of what they are doing. The side that is more objective is gathered from external factors and the actions of the participants, in connecting parts of the same crime. Similarly, during rape, in which this excess is carried out by two people, the first of the co-perpetrators, for example, performs sexual intercourse, and the second helps him by restraining the victim’s resistance.

Types of assistance in fraud

Complicity can manifest itself in two varieties: physical and intellectual. Each of them has its own objective aspects, which should be discussed in a little more detail.

Physical complicity Acts as both an action and an inaction of accomplices to fraud. An active action is the transfer to the perpetrator of the objects of the commission of a criminal act (for example, bank account details or personal data of the victim). Inaction is considered failure to fulfill official duties to help fraudsters (for example, a bank employee ignored the receipt of questionable money into the account).
Intellectual complicity The second type of complicity in a crime involves providing information, advice, recommendations and other instructions to attackers. However, unlike ordinary ones, such advice helps criminals carry out their plans and steal other people's property. Having an “assistant” informant at his disposal, the criminal brings his act to its logical conclusion or intends to do so in the future. Intellectual complicity can also be considered a promise given to accomplices to hide traces of a violation or to sell stolen items. Disclosure of a fraudulent plan implies punishment for all its participants, regardless of who they were. The only difference will be the severity of such punishment.

Types of complicity. Participation with distribution of roles of accomplices

Complicity, in which there is a distribution of certain roles of participants, is characterized by the fact that the perpetrator commits actions that constitute the objective side of the crime. Other participants in the crime, such as the organizer, accomplice and instigator, through their own actions, create the conditions for the successful execution of the crime. They are also able to simply facilitate implementation through their actions. In this form, accomplices perform certain different roles to carry out the crime.

TYPES OF PARTICIPATION

Organizer
Executor
Accomplice
Instigator

Executor

A perpetrator is a participant who has definitely committed a crime through his actions or is directly involved in the commission of a crime together with accomplices - co-perpetrators. Co-perpetrators can perform either the same actions (general beating) or different functions (as in the case of rape).

Organizer

The organizer is the person who organized the crime or supervised its execution. This accomplice is the most dangerous, because he involves other persons in criminal activities, who, after involvement, become accomplices, directs their actions, and introduces organization and system into their activities. The organization of a crime includes: finding and preparing perpetrators, distributing roles, drawing up a diagram or plan, searching for instruments and means of crime. Directing the commission of a crime is the distribution of responsibilities, giving mandatory instructions to the perpetrator and accomplices, complete active leadership in the crime. It happens that the organizer is also the perpetrator of the crime.

Instigator

An instigator is a person who induces another person to commit a crime. The instigator, through his actions, does not directly participate in the commission of a crime, does not organize or direct the crime, otherwise he would be the perpetrator and organizer of the crime, respectively. The role of the instigator is to arouse in another person the determination to commit a given crime, not a crime in general, but a specific crime, such as taking a person’s life or stealing a car. The instigator uses various methods and means, such as bribing a person, making threats, various persuasion and promises - that is, committing any active actions that incline to commit a criminal offense. The perpetrator and the instigator have different motives and goals. The important thing is that the instigator understands that he is involving a person in committing a crime.

Accomplice

An accomplice is an accomplice who facilitates the commission of a crime with advice, instructions, provision of means or the removal of obstacles on the way to committing a crime, as well as a person who has promised in advance to hide the criminal, and means of committing a crime, tools, traces of a crime, or objects obtained by criminal means. The accomplice performs his functions before the start or at the time of execution of the crime, but necessarily before the actual completion of the crime, otherwise it will no longer be complicity, but involvement in the crime, since complicity is participation in the commission of a crime, the actions of the accomplice must contribute to the criminal result. The accomplice must understand that he is facilitating the commission of a crime. The accomplice does not organize the crime and does not directly participate in the commission of the crime, otherwise it will be the organizer and the perpetrator.

The criminal law itself does not provide for special grounds for liability for complicity, therefore the punishment is determined by the limits of punishment provided for in the article of the Criminal Code of the Russian Federation regulating the liability of the perpetrator. In other words, the law does not provide for either more severe or lenient punishment for accomplices, but nevertheless establishes requirements according to which the criminal liability of accomplices is determined by the nature and degree of actual participation of each of the participants in the commission of the crime, their significance in the commission of the act. That is why the organizer and instigator generally receive more severe punishment. An accomplice, unlike an organizer and instigator, receives a more lenient punishment.

Question 20. Forms of complicity and types of accomplices

The forms of complicity are defined in Art. 35 of the Criminal Code of the Russian Federation and are characterized by differences in the degree of consistency in the behavior of accomplices in the crime and their organization.

There are four forms of complicity :

1) a group of persons, without prior agreement;

2) a group of persons with a preliminary conspiracy;

3) organized group;

4) criminal community.

A group of persons without prior agreement is the least dangerous and at the same time the least common form of complicity (Part 1 of Article 35 of the Criminal Code of the Russian Federation). It is characterized by a minimal degree of coordination, which is due to the impossibility of conspiracy before the start of the crime. Conspiracy arises between accomplices only during the commission of a crime, after the objective side of the crime has begun. This form refers to a simple type of participation, since with it, in addition to co-executors, there are no other types of partners.

A group of persons with a preliminary conspiracy is characterized by the presence of a preliminary agreement between the accomplices, which took place in advance, before the start of its commission. This form of complicity is provided for in Part 2 of Art. 35 of the Criminal Code of the Russian Federation. This form of complicity is the most common and dangerous. As a result of the conspiracy, the accomplices become aware not only of general information about the impending crime, but also some of the circumstances of their future criminal activity. Collusion can be verbal or written. Very rarely, partners reach an agreement as a result of specific actions (tacit consent). For this type of complicity, conspiracy is most often characterized by an understanding of the object and subject of the crime, sometimes by the method of encroachment, which cannot indicate strong ties between the accomplices.

A group of persons with a preliminary conspiracy can be classified as a simple type of complicity (when all accomplices are co-performers) or a complex type (when other types of accomplices appear in the complicity).

An organized group is a more dangerous type of complicity with a prior agreement. This form of complicity differs from a group of persons with a preliminary conspiracy in its organization and stability.

Organization is expressed, first of all, by the presence of a distribution of roles for accomplices throughout the entire criminal activity, and not just for the commission of one or several crimes.

Sustainability is:

a) in a relatively long period of existence;

b) in the constancy of the composition of accomplices.

The legislator does not determine the period of existence of an organized group, but, as law enforcement practice shows, such a group must exist for a fairly long period in an unchanged composition and commit several crimes during this time. The composition may be changed, but not by more than one third. However, it is not necessary that all members of an organized group take part in every crime committed. Qualitative criteria for sustainability, unfortunately, are not reflected in criminal law, which often serves as a stumbling block when defining an organized group, since uncertainty allows various law enforcement officials to interpret this term at their own discretion.

An organized group refers to a complex type of participation. She is characterized by a higher professional level in committing crimes. Most often, crimes are committed by an organized group in the economic sphere.

A criminal community (criminal organization) is the most dangerous form of complicity. In this case, a crime is recognized as committed by a criminal community if it was committed by persons united in a stable and cohesive organization created to commit serious or especially serious crimes, or by an association of organized groups created for the same purposes (Part 4 of Article 35 of the Criminal Code of the Russian Federation). The danger of this form of complicity is characterized by the severity of the crimes committed by criminal communities.

The criminal community is characterized by the highest form of cohesion, consistency between partners and internal organizational hierarchy, which distinguishes the community from other forms of complicity.

Cohesion is a socio-psychological characteristic of a criminal community; it reflects the commonality of participants in the implementation of criminal goals. The hierarchy of the intra-organizational structure of a criminal community presupposes a rigid and stable distribution of roles and a strict, multi-level structure in which each member takes his assigned place and reports to a superior leader. This structure allows the criminal community to exist for a long time without much risk, since ordinary perpetrators, and in rare cases middle-level managers, are mainly brought to criminal responsibility.

Thus, the criminal community is characterized by the most persistent organizational forms of communication between criminals, that is, cohesion and stability. The Criminal Code of the Russian Federation provides for criminal liability for the following types of criminal association: a) armed rebellion (Article 279 of the Criminal Code of the Russian Federation); b) gang (Article 209 of the Criminal Code of the Russian Federation); c) organized groups in institutions that ensure isolation from society (Article 321 of the Criminal Code of the Russian Federation); e) an organized group specially created for smuggling (Article 188 of the Criminal Code of the Russian Federation).

The activities of accomplices in a crime can be of a very diverse nature and, at first glance, are not always characterized by obvious illegality. But despite this, such activity does not become less socially dangerous. The Criminal Code of the Russian Federation classifies participants in a crime according to the nature of the actions they perform, according to the objective role played by accomplices in the commission of a crime.

Depending on the nature of the actions performed, accomplices in the crime in accordance with Art. 33 of the Criminal Code of the Russian Federation are divided into the following types: 1) performer;

2) organizer;

3) instigator;

4) accomplice.

A perpetrator is a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who, by force of law, are not subject to criminal liability due to age, insanity or other circumstances provided for by the Criminal Code. RF.

One or more perpetrators (co-perpetrators) may participate in the commission of a crime. The actions of co-perpetrators can be either homogeneous in nature (for example, all accomplices strike the victim) or diverse, but covered by a single intent to achieve a single goal and included in the objective side of the crime being committed (for example, one of the accomplices enters an apartment and directly commits theft of things , and the second one at this time on the landing controls the situation).

Co-execution is an action in which all participants are direct perpetrators of a criminal offense, that is, by their actions or inaction they carry out a criminal act. Co-execution can be with or without prior agreement. Complicity in co-execution is always a simple form. Complex participation, unlike simple participation, is always characterized by a division of roles between participants. With it, other types of accomplices appear (organizers, instigators, accomplices).

An organizer is a person who organized the commission of a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them. The organization of a crime consists of uniting accomplices, developing a plan for committing a crime, and directing the activities of accomplices. The organizer creates a criminal group or organization (community), distributes responsibilities among other accomplices and manages their activities, draws up a plan for preparing and committing a crime, selects accomplices, maintains a certain discipline among them, etc. The organizer plans to commit specific crimes. The initiative may belong to both the instigator and one of the co-perpetrators, but these participants only direct intent to commit a crime, and this limits their role.

Directing the commission of a crime also consists of choosing the most suitable means and instruments for committing a crime, directing the activities of individual accomplices and their efforts to achieve the intended result. An instigator is a person who induces another person to commit a crime by persuasion, bribery, threat or other means. Criminal legislation does not contain all the means and forms of incitement, since it is not possible to give an exhaustive list of them. The method of incitement is chosen depending on the personal qualities of the incited (his inclinations, needs, capabilities), depending on the nature of the alleged crime, the circumstances under which incitement is carried out and under which the crime is to be carried out. Depending on and taking into account various factors, the instigator influences other accomplices (accomplices), arouses in them the determination to commit a specific crime.

Incitement can be carried out in the form of an order or verbal instruction addressed to subordinates in the service. It can be expressed in the form of blackmail, flattery, persuasion, requests, advice, proposals, threats, bribery, persuasion, etc. Incitement is characterized by active actions aimed at inciting the perpetrator’s determination to commit a specific crime.

An accomplice is a person who assisted in the commission of a crime by advice, instructions, provision of information, means or instruments for committing a crime or removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, as well as a person , who promised in advance to purchase or sell such items.

The activities of an accomplice are, as a rule, less dangerous compared to the activities of other accomplices. He is less active, does not direct criminal activity, does not perform actions directly aimed at committing a crime, and does not persuade others to commit it.

When defining complicity, criminal law specifies the ways and means of providing assistance in the commission of a crime. These methods and means can be physical (material) and intellectual (mental). Taking this into account, complicity is divided into two types: physical and intellectual .

Physical complicity is expressed in actions that assist the perpetrator in carrying out an act directly aimed at committing a crime. These actions are expressed in providing the perpetrator with the necessary means to commit a crime (for example, transferring a weapon to commit murder) or in removing obstacles (for example, disabling an alarm system for subsequent unhindered entry into a protected facility).

Intellectual complicity is expressed in the fact that the accomplice mentally influences the will of the perpetrator, thereby strengthening his determination to commit a crime, and also assists the perpetrator with various kinds of advice and instructions regarding the commission of a specific crime. Intellectual complicity can be expressed in a pre-given promise to hide the criminal, the instruments and means of committing the crime, traces of the crime and objects obtained by criminal means, as well as a promise to purchase or sell such objects. Complicity will take place even if the perpetrator, during the actual commission of the crime, did not use the instructions or the means and instruments provided by the accomplice and chose others, and also if the accomplice, after the commission of the crime by the perpetrator, refused his promise to conceal the perpetrator or traces of the crime or found instead yourself another person. The responsibility of accomplices in a crime is determined by the nature and degree of actual complicity of each of them in the commission of a crime. This approach is due to the fact that complicity itself does not create any additional grounds for criminal liability. However, it should be noted that the acts of accomplices must be considered in close connection with the acts of the perpetrator(s). Therefore, co-perpetrators are held liable under a specific article of the Special Part of the Criminal Code for a crime committed by them jointly, without reference to Article 33 of the Criminal Code of the Russian Federation. Meanwhile, the criminal liability of the organizer, instigator and accomplice comes under the article providing for punishment for the crime committed, with obligatory reference to Art. 33 of the Criminal Code, except for cases where they were simultaneously co-perpetrators of the crime. When assigning punishment, the court is obliged to determine the role in the crime committed and the degree of public danger of each accomplice.

If the perpetrator does not complete the crime due to circumstances beyond his control, the remaining accomplices bear criminal liability for preparation for a crime or attempted crime. A person who, due to circumstances beyond his control, failed to persuade other persons to commit a crime, is also criminally liable for preparation for a crime. It is necessary to take into account that criminal liability arises only for preparation of a serious and especially serious crime. The commission of a crime by a group of persons, a group of persons by prior conspiracy , an organized group or a criminal community (criminal organization) entails the application of a more severe punishment within the limits provided for by the Special Part of the Criminal Code and is provided for as an aggravating circumstance (clause “c” of Part 1 of Art. 63 of the Criminal Code of the Russian Federation).

A special place in the theory of complicity is occupied by the concept of excess of the perpetrator of the crime . Excessus (lat.) – retreat, evasion, extreme manifestation of something. The excess of the perpetrator is the commission of a criminal act that was not covered by the intent of the other accomplices. Only the perpetrator himself is responsible for the excess, and the accomplices are responsible only for those acts that were covered by their consciousness .

Consequently, with excess, there are deviations in the activities of the performer when he commits any actions that go beyond the scope of collusion with other accomplices. For example, if the accomplices agreed to commit a robbery attack on an apartment, and one of them, on his own initiative, raped the landlady, then he will be held accountable for committing both a robbery and rape, and the remaining accomplices only for committing a robbery, since They did not agree on the rape of the apartment owner, but it was committed by the perpetrator without the knowledge of the accomplices. The perpetrator’s deviation from the overall plan is possible only in the objective side of the crime and in the object of the attack.

Depending on the nature of the deviations from the general plan, which may relate to the method of committing the crime, the circumstances qualifying the criminal act, the commission of a heterogeneous crime in relation to a preliminary conspiracy with other accomplices, excesses are divided into quantitative and qualitative.

Quantitative excess should be understood as cases where the perpetrator commits actions of a homogeneous nature, covered by the intent of other accomplices, but in doing so causes more serious harm than was provided for by the conspiracy. For example, if the instigator persuaded the perpetrator to commit theft, and he committed robbery, then there is a quantitative excess of the perpetrator, since theft and robbery are homogeneous crimes. In this case, the perpetrator is responsible for the crime actually committed, and the instigator must be responsible for preparing for the theft. With quantitative excess, the perpetrator commits a crime that goes beyond the intent of the accomplices and commits a homogeneous less dangerous or more dangerous crime. The crime committed by the perpetrator is in a causal connection with the actions of the accomplices.

In case of qualitative excess, the perpetrator commits a different crime from the one to which he was persuaded or in which accomplices assisted and in which there was no agreement with them, and therefore the criminal act committed cannot be imputed to the remaining accomplices. In this case, the performer encroaches on a completely different object, which was not covered by the consciousness of the accomplices. For example, K., by agreement with V., was supposed to illegally purchase firearms from S., but during a criminal transaction, K. killed S. in a quarrel and took the weapon. In this case, V. will be held criminally liable only for complicity in the illegal acquisition of firearms.