Preparation for a crime and its types
Preparation for a crime is the search, manufacture or adaptation by a person of means or instruments for committing a crime, the search for accomplices to a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to circumstances beyond the control of this person ( Part 1 of Article 30 of the Criminal Code of the Russian Federation).
Procurement is any form of acquisition of funds or instruments for committing a crime. As a rule, funds are acquired for the commission of non-violent crimes, and weapons are acquired for violent attacks. The acquisition can be carried out both legally (for example, purchasing, borrowing, etc.) and illegally (for example, stealing weapons, etc.). The production of these means and tools involves their creation. When adapting, existing objects are brought into a state that, in the opinion of the perpetrator, makes them suitable for committing a crime (a sawn-off shotgun is made from a gun, a sharpening is made from a screwdriver, etc.).
Finding accomplices involves finding and recruiting them, carried out through persuasion, threats, blackmail, bribery, etc. Conspiracy to commit a crime is reaching an agreement between two or more persons to commit a specific crime. Other deliberate creation of conditions for the commission of a crime can include various types of actions that create the possibility of committing an attack (for example, developing a plan, removing obstacles, studying the situation, etc.). Failed incitement or aiding, when one person induces another to commit a crime, but the latter does not commit it, should also be attributed to the creation of conditions for the commission of a crime (Part 5 of Article 34 of the Criminal Code of the Russian Federation).
The law contains an approximate list of actions through which conditions for committing a crime can be created. It is almost impossible to give a complete list of them.
From the subjective side, preparation to commit a crime can only be carried out intentionally, as is directly stated in the law, and intent is possible only directly.
Consequently, the stage under consideration is possible in intentional crimes that have a material or formal (for example, preparation for kidnapping) composition, committed both through action and through inaction. Cases of preparation for a crime through inaction are quite rare (for example, discovered surplus goods formed without the participation of a person are not submitted to them for inventory for the purpose of their subsequent theft).
Preparation has independent criminal legal significance only if it does not develop into an attempt or a completed crime due to circumstances that do not depend on the will of the perpetrator. It characterizes unfinished, unfinished criminal behavior. It is always interrupted against the will of the person, due to circumstances beyond his control. These circumstances may be different, the main thing is that they should not be associated with the voluntary cessation of criminal actions.
If, in the process of preparing for a crime, the perpetrator commits acts that fall under the elements of another crime, then the act constitutes a set of crimes (for example, a firearm is stolen, liability for which is provided for in Article 226 of the Criminal Code of the Russian Federation).
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Text of the book "Crimes against life"
Chapter XI. Preparation for murder and attempt to commit it
§ 1. Preparation for murder
1. Article 29 of the Criminal Code divides crimes according to the degree of completion into completed and unfinished.
A crime is considered completed if the committed act contains all the elements of a crime. This applies to all crimes against life that are provided for in the Special Part of the Criminal Code. Preparation for a crime and attempted crime are recognized as unfinished crimes. The classification of unfinished crimes against life has significant features, which led to the allocation of a corresponding independent chapter in this work. There are two types of unfinished crimes: interrupted due to circumstances beyond the control of the person and voluntarily not completed (abandoned). Preparation and attempted crime are types of crimes interrupted due to circumstances beyond the control of the person. What differs from them is a voluntarily unfinished crime, in which socially dangerous consequences, for example, the death of the victim, did not occur due to circumstances depending on the person, namely, due to his voluntary refusal to complete the crime. Moreover, the motives for not completing a crime can be very different, as long as the renunciation of the crime is truly voluntary.[303] 303
In connection with the inclusion in the Criminal Code of the Russian Federation Art.
29 “Completed and unfinished crimes”, some authors propose to abandon the use of the term “stage of commission of a crime” (see New criminal law of Russia. General part. M., 1996. pp. 53–54; Course of criminal law. Vol. I. General part. M., 2002. pp. 364–380). A similar position was expressed in publications by other authors, for example, M. P. Redin (Tambov), A. I. Sitnikova (Orel). Consideration of this problem is beyond the scope of our topic. We believe, however, that the traditional position (see Course of Soviet criminal law. T. II. M., 1970. P. 402–412; Naumov A.V.
Criminal law. General part. Course of lectures. M., 1999. P 277–303; Course of Russian criminal law. General part. M., 2001, pp. 321–334) serves to more clearly delineate the stages of preparation for committing crimes and the correct qualification of crimes, which does not deny N. F. Kuznetsova in the mentioned criminal course rights.
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The circumstances of the incompleteness of crimes against life are very different and can influence their qualification, the degree of guilt and the amount of punishment imposed by the court on the perpetrator.
2. Criminal liability arises for preparation only for a serious or especially serious crime (Part 2 of Article 30, categories of crimes are described in Article 15 of the Criminal Code). Consequently, only persons carrying out the preparation of murder under Art. 105 of the Criminal Code. Preparatory actions for other crimes against life (for example, committed when preparing a pregnant woman for infanticide, Article 106 of the Criminal Code) are not punishable under the new Criminal Code.
In Art. 30 of the Criminal Code lists in more detail the signs characterizing preparation for a crime than was done in Art. 15 of the Criminal Code of the RSFSR, namely: the search, manufacture or adaptation by a person of means or instruments for committing a crime, the search for accomplices to a crime, conspiracy to commit a crime or other deliberate creation of conditions for the commission of a crime, if the crime was not completed due to circumstances beyond this faces to circumstances.
Preparation for a crime is characterized by the fact that a real danger of committing a crime is created. In preparation, the subject, preparing to commit a crime, takes certain specific actions to carry it out in the future. At the same time, these actions are not yet directly aimed at committing a crime and do not currently threaten the object of the criminal attack.
In cases where the object of the crime is human life, preparation for murder may consist of a variety of actions related to the search for means and weapons of murder, their adaptation for this purpose, and other deliberate creation of conditions for committing murder.
Prospecting
means or instruments of murder can be expressed in the acquisition of a knife, pistol, gun, rope and any other item that, by its properties, is suitable for use in committing murder. At the same time, the law does not put forward any conditions regarding the methods of finding tools and means of carrying out the intended crime: it can be expressed not only in the acquisition (purchase, barter, theft, etc.), but also in the manufacture of such means or weapons of murder. For liability for preparation for murder, it is necessary that we are talking about finding such instruments or means of murder that, according to the intention of the perpetrator, will be used directly to achieve a criminal result. Therefore, actions consisting, for example, of purchasing a stone for sharpening a knife, which, in turn, is supposed to be used in murder, purchasing a vessel for storing poison, etc., cannot be recognized as preparation for murder.
Manufacturing
or
the adaptation of
means or instruments of murder can be expressed primarily in a change in the shape or quality of an object, after which it becomes suitable or more suitable for committing murder (for example, making a dagger or Finnish knife from a file, making a sawn-off shotgun from a gun). The adaptation should also include repairing a pistol or other weapon in order to use it for murder. The device will be the production of poison from compound chemicals.
In our opinion, the manufacture or adaptation of means or instruments of murder in a number of cases may indicate a higher degree of preparation for this crime than their discovery. For example, purchasing a gun and cartridges for committing a murder is finding a murder weapon, and loading a gun to fire a shot at a victim is already adapting the weapon for murder. In these cases, the person will be held liable for preparation for murder. But a different situation arises when we are talking about a means that, although it will not be used directly to cause death, but without which murder under specific conditions cannot be committed. For example, the purchase of a ladder, which the perpetrator intends to use in order to enter the premises where the victim is located, can hardly be considered preparation for murder. If it is adapted at the crime scene for the specified purposes, preparation for murder must be recognized as established.
The basis for criminal liability for preparation for murder is also the search for accomplices and conspiracy to commit a crime. In all cases when several persons agree to commit a murder, or an organizer prepares a murder, an instigator induces it, an accomplice gives advice or promises in advance to cover up traces of the crime weapon or the criminal himself, the conditions for committing a murder take place. The creation of conditions during a preliminary conspiracy is characterized by the fact that persons who agreed to commit a crime - accomplices - have more opportunities to complete the crime.
For example, in Yekaterinburg, a group of people involved in extortion and other crimes decided to commit the murder of V., the leader of a rival gang. To do this, they stole a Moskvich car, which they equipped to monitor V. They parked the car near the entrance of the house where he lived, and conducted surveillance for six days, studying the routine and lifestyle of the victim, and then, choosing a convenient moment, they shot V. .and his guards with machine guns. Masks, gloves, supplies of water and food were found in a car abandoned outside the city. In this case, the participants in the preparation and commission of the murder were members of an already created gang, and the distribution of roles at the stage of preparing the murder did not matter.
However, when considering and investigating murder cases, there are cases when the organizer or instigator of the murder is identified, but the actual perpetrator is not. This happens when the preparatory activities of the organizer or instigator were stopped even before the appearance of the perpetrator.
Thus, the Supreme Court of Russia, in cassation proceedings, considered the case against B., who was convicted of illegally carrying a TT pistol and for complicity in murder. B., in particular, was found guilty of the fact that, while in custody during a preliminary investigation on charges of another crime, he sent his friend M. a letter in which he demanded that his wife be “written off under any conditions” so that she could not testify in court in his case. Further, B. in the letter taught M. how he “better” to commit the murder. However, this letter from B. was delayed and did not reach M. M., who was interrogated in the case, testified that B. did not approach him with any request. Thus, in this case there was failed incitement. Although the verdict during the cassation hearing was left unchanged, such a decision cannot be considered correct. In fact, if there is only an instigator, then Art. 32 of the Criminal Code (Article 17 of the Criminal Code of the RSFSR), which states that “complicity... is the intentional joint participation of two or more
persons in the commission of an intentional crime" (our italics -
S. B.
) cannot be applied.
In this case, there is only an instigator who did everything to commit the crime, but it was not committed for reasons beyond his control.[304] 304
N.D. Durmanov rightly criticized A.N. Trainin, who believed that in such cases the actions of the instigator must be qualified under Art.
17 of the Criminal Code of the RSFSR (Article 33 of the Criminal Code) and the article providing for the crime that the accomplices intended to commit. He wrote that since in these cases there is no crime itself, there is no direct perpetrator, then there are and cannot be accomplices ( Durmanov N.D.
Stages of committing a crime according to Soviet criminal law. M., 1955. P. 75).
The considerations of M.A. Andreev, who wrote: “It would not be a stretch to say that persuading one person to commit a crime is a search for means to commit a crime, for if buying a revolver for the purpose of murder is a search for means for murder, then Moreover, preparation for murder will be finding a person capable of committing murder, and persuading this person to kill” ( Andreev M.A.
Incitement as preparation for a crime // Workers' Court. 1928. No. 21–22. P. 1575).
[Close] In this situation, the instigator must bear responsibility for preparing for murder using Art. 30 CC.
3. The commission of other crimes for the purpose of removing obstacles or creating conditions for murder should also be recognized as preparation for murder. As a preparation for murder, crimes such as theft of a weapon for use in a murder, murder in order to remove obstacles to the commission of another murder may be committed. In such cases, theft and murder, in addition to qualifying them as independent crimes, must also be qualified as preparation for the murder for the purpose of which they were committed.
Criminal legislation provides for a number of crimes that, if the intent to cause the death of the victim is proven, must be recognized as preparation for murder.[305] 305
Shargorodsky M.D.
Decree. op. P. 257.
[Close] These include crimes under Art. 222 and 223 of the Criminal Code (illegal carrying, storage and manufacture of weapons or explosives), Art. 234 of the Criminal Code (illegal trafficking of potent or toxic substances for the purpose of sale). The commission of any of these criminal acts with the purpose of murder is subject to qualification as a set of crimes - under Art. 222 or 223 and under Art. 30, part 1 art. 105 or art. 30, part 2 art. 105 of the Criminal Code, depending on the specific circumstances of the case.
To bring to justice for preparation for murder, it is very important to distinguish preparation from the discovery of intent. Meanwhile, in the activities of investigative and judicial authorities such a distinction is not clearly made. In particular, there are cases when the actions of a subject who took measures to find means or weapons of murder and ended in vain are regarded as preparation for murder.
The Prosecutor's Office of the Republic of Bashkortostan brought criminal charges against M. for preparing for murder and robbery. Having met G. at the market, M. twice asked him for a pistol to kill and rob an acquaintance, and then to attack a store clerk. He, having met the chairman of the collective farm V., asked him for a horse to rob the seller. M. actually committed none of these crimes. The Supreme Court of the Republic of Bashkortostan found M. guilty of preparing for murder and robbery and convicted him for these criminal actions. M. was also convicted of other crimes. The Presidium of the Supreme Court of the Russian Federation returned the case for additional investigation, without pointing out the groundlessness of recognizing M.’s above actions as preparation for murder and robbery. We cannot agree with this solution to the issue. The fact is that the law obliges to recognize as preparation such actions that indicate searching, and not about seeking
means or instruments of crime.
In this case, there was a search for means or weapons of murder, that is, the subject tried to find them, but his actions were ineffective, were not successful, despite his efforts. In this situation, if we proceed from the exact meaning of Art. 30 of the Criminal Code, M.’s actions cannot be considered as preparation for a crime. They were only aimed
at finding means and weapons of murder.
M.’s actions could be qualified as “attempted preparation” if such a legal construction existed.[306] 306
N. S. Tagantsev wrote about this: “To accuse someone of preparation, it is not enough to prove that the criminal used all his efforts to buy a knife, poison, etc.: this will be an attempt to prepare, but it is necessary prove that he bought poison or a knife for a criminal purpose;
in a word, it is necessary to prove not that he was looking for funds, but that he really found them” ( Tagantsev N.S.
On crimes against life under Russian law. St. Petersburg, 1870. T. 1. P. 301.
[Close] But such a construction is unthinkable within the framework of Art. 30 CC. Therefore, it should be recognized that in this case there was a discovery of intent to murder and robbery, which would correctly be recognized as a threat to murder. Moreover, the law does not require that the threat be expressed precisely to the person to whom it was addressed.
4. The distinction between preparation for murder and the threat of murder is of independent importance. Before moving on to the consideration of the question posed, it is necessary to emphasize that for criminal liability to arise for a threat to kill, there must be reason to fear that this threat will be carried out.
(Article 119 of the Criminal Code).
This in each case is a question of fact. When deciding, one must take into account how the victim perceived the threat. But this subjective sign alone is not enough; it is necessary to be guided by objective data. To conclude that a threat is real, the situation in which the threat was uttered must be assessed. The presence of grounds to fear the threat may be carried out may be indicated by: a) the way it is expressed (for example, the demonstration of a weapon that was not specifically prepared to carry out the threat); b) the nature of the relationship between the accused and the victim (extremely hostile relationships, frequent quarrels, etc.); c) previous behavior of the perpetrator (often hooliganism, beating other persons or the victim); d) the identity of the perpetrator (for example, he was previously convicted), etc. Only taking into account all the circumstances can a correct decision be made about whether there are grounds to fear the threat will be realized.[307] 307
See: Criminal Code of the RSFSR: Scientific commentary. A special part. Sverdlovsk, 1962. T. II. P. 400.
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In practice, the question increasingly arises of distinguishing this crime from preparation for murder in connection with the establishment of criminal liability for threats to kill. A threat to kill, like any threat, is one of the forms of detecting intent or, as it is commonly called, “bare intent” - this is the initial stage of the development of a crime, characterized by the external expression of intention in one way or another to commit a crime.[308] 308
See: Course of Soviet criminal law. T. II. pp. 417–421; Commentary on the Criminal Code of the Russian Federation. M., 1996. P. 102. It should be noted that a threat can serve as a sign of the objective side of the crime (coercion to testify) and is also a qualifying sign of crimes such as robbery, robbery, rape, etc. It is quite clear that in all In these cases, the threat cannot be considered as a stage in the development of the crime.
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As a stage in the development of a crime, the discovery of intent is not prosecuted under Russian criminal law. It is still so far from the crime itself that it is impossible to talk about its social danger as well as the danger of the person who discovered the intent. This stage is characterized by the absence of a socially dangerous action (inaction) - this is a necessary condition for criminal liability, since the punishability of an act “only in connection with a specific act of external manifestation is one of the expressions of the principle of socialist legality, since only in this case can the range of crimes be limited.” [309] 309
Nikiforov B.S.
About the object of the crime // Sov. state and law. 1948. No. 9. P. 45.
[Close] Criminal liability has been established for threats to kill because in these cases it is of a particularly serious nature and, under certain circumstances, poses a significant public danger.[310]310
See:
Shargorodsky M.D.
Decree. op. P. 252.
[Close] At the same time, this does not at all exclude the fact that when distinguishing preparation for murder from a threat to kill, it is necessary to take into account that the threat may precede the preparation. This circumstance was also recognized by N.D. Durmanov, who objected to attributing the detection of intent to the stage of development of criminal activity. He wrote that a punishable threat to kill against a private person, punishable by criminal law, may at the same time constitute a discovery of intent to actually commit murder, which is threatened by the perpetrator.[311] 311
Durmanov N.D.
Decree. op. P. 25. – However, for the reasons stated above, we cannot agree with this.
[Close] Further events may develop in such a way that the threat will be followed by preparation, attempt and completed crime. In all those cases where the threat of murder is accompanied by specific actions consisting of finding or adapting means or instruments of murder, this is no longer a threat of murder in the sense of Art. 119 of the Criminal Code, but preparation for murder.
In this regard, it is hardly possible to agree with the qualification under Part 2 of Art. 206 and Art. 207 of the Criminal Code of the RSFSR (Part 2 of Article 213 and Article 119 of the Criminal Code) of N.’s actions, which consisted of the following. Late in the evening, N., armed with a pistol, came to U.’s house and began knocking on the door, threatening to kill him. In response to the knocking and threats, U.’s wife replied that he was not at home. N. demanded to open the doors, declaring: “I have to kill him.” At that moment, police officers arrived (the neighbors called them), N. tried to escape, but was detained, and a pistol was confiscated from him, which he kept illegally. The circumstances of the crime indicate that N. not only threatened to kill, but also carried out preparatory actions - he purchased a pistol and came with it to U.’s house to carry out his intention. Based on what has been said above about distinguishing the threat of murder from preparation for murder, the qualification of N.’s action under Art. 15, 103 or under Art. 15, 102 of the Criminal Code of the RSFSR (Article 30, Part 1 or Part 2 of Article 105 of the Criminal Code), depending on the presence of aggravating signs of murder, which, when applying Art. 207 of the Criminal Code of the RSFSR (Article 119 of the Criminal Code) were not examined, and under Part 1 of Art. 218 of the Criminal Code of the RSFSR (Article 222 of the Criminal Code).
In such cases, Art. 119 of the Criminal Code is not applicable, since the threat to kill was absorbed into a more dangerous crime - preparation for murder. In any case, when studying the judicial practice of the Supreme Court of Russia in murder cases in recent years, we did not encounter any facts of simultaneous application of Art. 207 of the Criminal Code of the RSFSR (Article 119 of the Criminal Code) and articles providing for liability for attempted murder or preparation for murder. When the death threat was addressed not to the victim as a result of the murder, but to another person, the actions of the perpetrator were reasonably qualified under the totality of Part 1 or Part 2 of Art. 105 and art. 119 Criminal Code[312] 312
Archive of the Supreme Court of the RSFSR. Case K. No. 41–02-35; Case P. No. 59–02-6.
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5. A study of murder cases shows that the perpetrators are comparatively rarely brought to criminal responsibility for preparation for murder. This is due to a number of reasons. First of all, for some types of crimes in this category, due to their nature, preparatory actions are unthinkable (murder in a state of passion, with the necessary defense, causing death by negligence). But other types of murder are most often not committed premeditatedly, and therefore they are not preceded by such actions of the perpetrator that one could judge the preparation for murder. In addition, in cases where the intent to kill arose in advance, the perpetrator of the murder does not always take any preparatory actions. Finally, even in cases where preparatory actions for murder take place, it is still impossible to say with certainty that the person is preparing to commit this crime. For example, the acquisition of a knife, axe, gun, rope, etc., does not in itself indicate preparation for murder, since they can be acquired for other purposes.
For criminal liability to arise for preparation of a crime, it is necessary to deliberately create conditions for the commission of a crime. Consequently, in order to bring a person to criminal responsibility for preparing to murder, it is necessary to establish the presence of intent to commit this crime, and this is not always possible. A study of murder cases shows that if the perpetrator committed any preparatory actions before the murder, he did it secretly, so that the crime would not be solved and the possibility of evading criminal responsibility would remain after the implementation of his intention. Such actions of the perpetrator undoubtedly reduce the likelihood of indisputably establishing the fact of preparatory actions for murder.
It is known from practice that the disclosure of preparations for murder is greatly facilitated in cases where the perpetrator either talks about his preparatory actions or involves an accomplice in committing the alleged murder. Let's give an example. T. decided to kill G. in order to take possession of the motorcycle. He persuaded K. to take part in the murder. T., knowing that G. would drive across the bridge, planned to fill the bridge with brushwood, and when G. stopped the motorcycle near the rubble, hit G. in the head with a stake. However, the murder was not committed, since K. reported this to the village council, and T. was detained and then convicted under Art. 15 and paragraph “a” of Art. 102 of the Criminal Code of the RSFSR (Article 30 and paragraph “z”, Part 2, Article 105 of the Criminal Code).
Investigative and judicial practice shows that for preparations for murder, which is known to prosecutors and police officers, the perpetrators are not always brought to justice. The prosecutor's office and the police department of the Voskresensky district of the Moscow region received several statements from K., who wrote that her husband was going to kill her mother G. and had prepared a knife for this. K. was detained and spent several hours in the police station, but then he was released on bail. Having left the police, K. killed G. that same evening. For this he was convicted under paragraph “g” of Art. 102 of the Criminal Code of the RSFSR (clause “e”, part 2, article 105 of the Criminal Code). Considering the case in cassation, the Judicial Collegium for Criminal Cases of the Supreme Court of Russia issued a partial ruling in which it stated: “From the testimony of witnesses it is clear that K. walked constantly with a knife, looking for G. in houses on the territory of the state farm, where she was hiding from him , and threatened the citizens that he would kill them too if they hid his mother-in-law. The police and prosecutor's office of the Voskresensky district of the Moscow region were aware of K.'s actions. The district prosecutor personally knew about this, but no action was taken against K., although there was every reason to bring him to criminal responsibility. Instead, the prosecutor’s office and police limited themselves to calling K. and talking to him.”[313] 313
Archive of the Supreme Court of the Russian Federation. Case K. No. 1-р1–17.
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Taking criminal legal measures against the person who committed the above-described actions is very often the only effective means of stopping them. It seems that in all cases of discovery of preparation for murder, a person is subject to criminal liability.
The literature has expressed the opinion that preparatory actions, even if the subject has a certain intent, as a rule, do not indicate an unyielding determination to commit a crime.[314]314
Course of Soviet criminal law. T. II. P. 423.
[Close] In principle, this is the correct position, and in cases where preparatory actions are aimed at committing a crime that does not pose a great danger to society, criminal prosecution should not be the only means of influencing the subject. But at the same time, the object at which the criminal attack is directed cannot be ignored - the risk of leaving preparations for murder unpunished is too great. In this regard, we cannot agree with N.D. Durmanov, who wrote: “If a person was preparing to commit even such a grave crime against a person as intentional murder, but the preparatory actions were expressed, for example, in the acquisition of an ax, then these actions should to be considered insignificant; the acquisition of an ax does not at all indicate that further actions will result in an encroachment on human life. There are no grounds for finding such a person guilty under an article punishable by premeditated murder.” This position is not consistent with the position expressed there that “when analyzing preparatory actions, one cannot be distracted from the nature of the actions of the perpetrator, their seriousness, their social danger.”[315] 315
Durmanov N.D.
Decree. op. pp. 90–91.
[Close] In the example given by N.D. Durmanov, both the nature of the actions and their seriousness do not provide any grounds for recognizing them as insignificant and leaving them unpunished.
