Article 316. Concealment of crimes
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- Article 316. Concealment of crimes
Concealment of especially serious crimes not promised in advance -
shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to two years, or by arrest for a term of up to six months, or by deprivation of freedom for up to two years.
Note. A person is not subject to criminal liability for concealment of a crime committed by his spouse or close relative who was not promised in advance.
Commentary on Article 316
Object
crimes are the interests of justice.
The social danger of concealment is that it prevents the timely detection of crimes and bringing the perpetrators to criminal responsibility, creates conditions for impunity for these individuals and their continuation of criminal activities.
Concealment is a type of involvement in a crime, i.e. activities related to the commission of a crime, but not constituting assistance to it and not being in a causal and culpable connection with the criminal result of the act being covered up. Thus, concealment is not complicity in a crime.
Objective side
concealment consists in the concealment, not promised in advance, of a criminal who has committed a particularly serious crime, traces, instruments and means of such a crime, as well as items obtained by criminal means. A crime is committed by an action.
By design, this composition is formal
and is considered
completed
from the moment of commission of any action aimed at concealing a crime. These actions can be either immediate (for example, destroying a crime weapon) or ongoing (for example, long-term storage of items obtained by criminal means in one’s home).
The disposition of the article in question speaks of concealment that was not promised in advance. The term “in advance” refers to the moment the perpetrator commits the crime. According to paragraph 2 of the Resolution of the Plenum of the Supreme Court of the USSR of July 31, 1962 N 11 “On judicial practice in cases of concealment of crimes not promised in advance, acquisition and sale of knowingly stolen property” <1>: “Concealment of a crime ... can be recognized as complicity, if these actions were promised to the perpetrator before or during the commission of the crime, or for other reasons (for example, due to their systematic commission) gave the perpetrator of the crime grounds to count on such assistance.” From here it follows that concealment promised to the perpetrator before or during the commission of a crime is recognized as complicity (aiding) and responsibility for this act comes under Part 5 of Art. 33 and the corresponding article of the Special Part of the Criminal Code of the Russian Federation on the crime committed by the perpetrator. The previous behavior of the concealer will also be recognized as complicity, which gave the perpetrator reason to expect assistance in concealing the crime, despite the fact that concealment was not promised in advance, for example, when the concealer had previously hidden the criminal himself or the traces of the crime.
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<1> Judicial practice in criminal cases: In 2 parts. Part 1: Collection of decisions of the Plenums of the Supreme Courts of the USSR, RSFSR and the Russian Federation / Comp. S.A. Podzorov. M., 2001. P. 63.
Under cover
refers to active actions to conceal a criminal or crime.
Concealing a criminal
consists, for example, in providing him with a home or other shelter, vehicles, documents, changing his appearance, reporting false information about him, etc.
Concealing a crime
means placing it in a shelter, destroying it, changing it, selling it, donating it, etc.
instruments of crime
(i.e., items used to directly commit a crime - weapons, thieves' tools, etc.),
means of crime
(i.e., things that facilitated the actions of the criminal - fake or real uniforms, masks, false documents and means for their production, counterfeit money, etc.),
traces of a crime
(i.e., images resulting from the actions of the criminal that could be used as material evidence - blood stains, fingerprints, dents from burglary tools, etc. etc.), as well as
items obtained by criminal means
(i.e. things that were obtained (for example, stolen property, documents) or created illegally (counterfeit money, forged documents).
The so-called intellectual concealment is most often provided for by independent provisions, for example Art. Art. 306 “Knowingly false denunciation”, 307 “Knowingly false testimony, expert opinion or incorrect translation”, etc. of the Criminal Code of the Russian Federation, but in some cases it can also be qualified under Art. 316 of the Criminal Code of the Russian Federation. For example, if the subject gives deliberately false explanations during the pre-investigation check of materials and statements, or if the subject directs law enforcement officials pursuing the criminal in a different direction. The method of concealment does not affect the presence of the crime in question.
In cases where concealment is expressed in the concealment and storage of items seized or restricted in civil circulation, the act must be qualified under the totality of Art. 316 of the Criminal Code of the Russian Federation and articles providing for liability for storage of these items, for example: Art. Art. 191 “Illegal trafficking in precious metals, natural precious stones or pearls”; 220 “Illegal handling of nuclear materials or radioactive substances”; 222 “Illegal acquisition, transfer, sale, storage, transportation or carrying of weapons, their main parts, ammunition, explosives and explosive devices”, 228 “Illegal production, acquisition, storage, transportation, transfer or sale of narcotic drugs or psychotropic substances”, 234 “Illegal trafficking of potent or toxic substances for sales purposes” and others of the Criminal Code of the Russian Federation.
If the concealment of a crime is committed by criminal means (for example, property is destroyed, harm is caused to health, documents are falsified, etc.), then what was done must also be classified as a set of crimes.
In cases where the method of concealment was murder, the act is fully covered by paragraph “k” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation and additional qualifications under Art. 316 of the Criminal Code of the Russian Federation is not required.
Special types of concealment are Art. 174 “Legalization (laundering) of funds or other property acquired by other persons through criminal means” and Art. 175 “Acquisition or sale of property known to be obtained by criminal means” of the Criminal Code of the Russian Federation. In these cases, additional qualifications under Art. 316 of the Criminal Code of the Russian Federation is also not required.
In all cases, when delimiting the composition, it should be remembered that the onset of criminal liability under Art. 316 of the Criminal Code of the Russian Federation is based on two criteria: objective - the person has committed active actions to conceal, and subjective - the awareness of the perpetrator that he is actually concealing a particularly serious criminal act.
If the person concealing the crime did not know what specific crime he was concealing, liability under Art. 316 of the Criminal Code of the Russian Federation does not apply.
The problem of qualifying the concealment of a particularly serious crime that was not promised in advance, committed out of fear of revenge on the part of the criminal, for example, under the threat of depriving the life of both the concealer himself and his close relatives, deserves special consideration. If at the time of concealment there were all the conditions of extreme necessity provided for in Art. 39 of the Criminal Code of the Russian Federation, then in this case the person should not be held criminally liable for concealment. If the threat of death could be implemented against the concealer only in the future
, then qualification is required under Art. 316 of the Criminal Code of the Russian Federation.
According to paragraph 3 of the Resolution of the Plenum of the Supreme Court of the USSR of July 31, 1962 N 11 “On judicial practice in cases of concealment of crimes not promised in advance, acquisition and sale of knowingly stolen property” <1>, “concealment of a crime not promised in advance... committed by an official by a person through the use of his official position, must be qualified under the articles of the Criminal Code... providing for liability for these crimes, and in the aggregate as abuse of official position” (i.e., under Article 285 of the Criminal Code of the Russian Federation).
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<1> Judicial practice in criminal cases: In 2 parts. Part 1: Collection of decisions of the Plenums of the Supreme Courts of the USSR, RSFSR and the Russian Federation / Comp. S.A. Podzorov. M., 2001. P. 63.
Concealment committed in relation to one's own criminal actions and the actions of another person does not constitute the crime under consideration. So, if the perpetrators committed a robbery of the victim, and then one of the accomplices kills him, which was not covered by the common intent, then the actions of hiding the corpse cannot be recognized as concealment in the aspect of Art. 316 of the Criminal Code of the Russian Federation, since in this case the perpetrator conceals not only the actions of the person who committed the murder, but also his actions in relation to the victim (see Determinations of the Supreme Court of the Russian Federation of February 22, 2007 N 69-o07-2, of December 22, 2006 . N 69-o06-37).
From the subjective side
concealment of crimes is characterized
by direct intent
. The perpetrator is aware that he is covering up a specific crime and desires it. The person’s consciousness must cover the nature of the actions performed by the perpetrator, as well as the fact that by his actions he contributes to the concealment of the crime.
The motives for the crime are varied: self-interest, fear of the criminal, friendly relations with the perpetrator, etc. They lie outside the scope of the crime and are taken into account by the court when assigning punishment.
Subject
Any person who has reached sixteen years of age (general subject) may commit a crime.
Concealing traces by the perpetrator or participant in the crime does not contain elements of a crime under Art. 316 of the Criminal Code of the Russian Federation (concealment of crimes).
According to the note to Art. 316 of the Criminal Code of the Russian Federation exempts spouses or close relatives of the person who committed the crime from criminal liability for concealment of particularly serious crimes not promised in advance. But in case of special types of concealment, spouses and close relatives answer on a general basis (for example, clause “k”, part 2 of article 105, art. art. 174, 175, 306, 307 of the Criminal Code of the Russian Federation).
