Verdict under Article 161 Part 1 of the Criminal Code of the Russian Federation: comments. Art. 161 of the Criminal Code of the Russian Federation: robbery

An example from judicial practice.

Relatives of a man who was detained for stealing items from a store in the Galereya shopping center contacted me. At first glance, the situation is standard, and it would seem that what was committed would be qualified under Art. 7.27 of the Code of Administrative Offenses of the Russian Federation (petty theft), or under Article 158 of the Criminal Code of the Russian Federation (theft), depending on the amount of theft. However, upon arriving at the police department, it turned out that my client, instead of stopping and handing over the stolen items, got scared, ran and was caught by the shopping center security officers. Thus, he aggravated his situation and a criminal case was opened under Part 1 of Article 161 of the Criminal Code of the Russian Federation. Under this article, the punishment provides for up to 4 years of imprisonment, and given the lack of registration in St. Petersburg, my client was threatened with arrest. An arrest was avoided, but the defense in the criminal case did not end there.

Together with my client, it was decided to seek dismissal of the criminal case. Since the defendant was caught at the time of committing the crime, the stolen items were with him, and a large number of video cameras in the Galereya shopping center and video recordings from them did not testify in our favor, it was decided to seek the termination of the criminal case through the trial of the parties or a court fine.

Problems arose with the reconciliation of the parties - the store from which the items were borrowed belonged to a large retail chain, and the director of a particular store did not have the authority to try on a criminal case. There was only one option left - to seek the termination of the criminal case using a criminal law measure in the form of a court fine.

To impose a court fine, the following conditions must be met:

A person is brought to criminal responsibility for the first time
Minor or moderate crime
The person compensated for the damage or otherwise made amends for the harm caused by the crime

My client was brought to criminal responsibility for the first time, a crime under Part 3 of Art. 30 Part 1 Art. 161 of the Criminal Code of the Russian Federation refers to crimes of medium gravity, i.e. two of the three conditions were met. It remains to fulfill the third condition, and here some difficulties arose. Firstly, since the accused was charged with attempted robbery, and the things were returned immediately after the arrest, no actual damage was caused. It was decided to make a written apology and transfer a sum of money equal to the cost of the items to the organization’s account. After fulfilling the last condition during familiarization with the materials of the criminal case, we filed a petition for a preliminary hearing in the case. After the criminal case was submitted to the court, a petition was filed to terminate the criminal case using a criminal law measure in the form of a court fine. At the preliminary hearing, this petition was supported in full and the judge of the Smolnensky District Court of St. Petersburg issued a decision to terminate the criminal case using a criminal law measure in the form of a court fine in the amount of 10,000 rubles. Thus, the criminal case under Part 3 of Art. 30 Part 1 Art. 161 of the Criminal Code of the Russian Federation was terminated. My client avoided real imprisonment and a suspended sentence, and did not receive a criminal record.

A correct assessment of all the circumstances and the correct decision on defense tactics, thanks to the experience and knowledge of a criminal lawyer, allowed us to achieve the best possible result in this criminal case. The client was satisfied with the lawyer's work.

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What is robbery?

The development of market relations and a significant decline in the material level of many citizens negatively affect the crime situation in the country and, above all, lead to an increase in crimes related to encroachment on other people's property. This trend was noted in the mid-nineties. But even today, when the percentage of detection of such crimes, compared to the situation at the end of the last century, has increased significantly, the problem remains relevant.

Robbery is one of the acts against property, which is quite dangerous. This crime is a type of theft.

general characteristics

Before proceeding to the description of the crime prescribed in Art. 161 part 1 of the Criminal Code of the Russian Federation, it is necessary to pay attention to the question of what constitutes theft. In criminal practice, this act is understood as the illegal seizure of items of someone else’s property, which is committed solely for selfish purposes. Theft has the following characteristics:

illegal and gratuitous seizure of property;
turning it in favor of the accused;
causing material damage to the owner;
the presence of a causal connection between theft and damage.

Subjective signs of a crime:

direct intent;
selfish goal;
intention to use the stolen property in the future.

Theft differs from other acts in that the mechanism of its commission involves a violation of the rights of ownership of property.

A crime is committed if the property of the victim is confiscated, and the perpetrator has the opportunity to further use it at his own discretion. But let's return to Art. 161 of the Criminal Code of the Russian Federation.

Article 161 (“Robbery”) is devoted to the definition of a crime that fully meets all the characteristics of theft. It differs from other types of this act primarily in the method of seizure of property. Robbery is characterized by specific features that indicate the level of danger. About a crime for which the offender faces up to four years in prison, Art. 161 part 1 of the Criminal Code of the Russian Federation.

Acquittal under Art. 161 of the Criminal Code of the Russian Federation left unchanged

Judge: Fedorov A.Yu.

Judge-speaker: Popova I.P. case No. 22-3664/10

CASSATION DETERMINATION

Irkutsk September 13, 2010

Judicial panel for criminal cases of the Irkutsk Regional Court, composed of the presiding judge - Judge O.V. Zhdanova,

judges: Popova I.P., Tsarieva N.A.,

with the participation of the Deputy Prosecutor ... of the district of Irkutsk O.Yu. Serebrennikov,

under secretary Bakhaev D.S.,

considered in open court on September 13, 2010, based on the report of judge I.P. Popova. criminal case according to the cassation submission of the state prosecutor Serebrennikov O.Yu. on the verdict ... of the district court of Irkutsk from the date anonymized by which

Starozhilov O.V., born Date anonymized in ..., citizen of the Russian Federation, with secondary education, unmarried, not working, disabled group 2, registered at the address: ... living at the address: ..., previously convicted:

The date was anonymized ... by the district court of Irkutsk under Part 4 of Art. 228 of the Criminal Code of the Russian Federation to 7 years of imprisonment in a maximum security correctional colony, with confiscation of property.

By the resolution ... of the district court of Irkutsk dated Date anonymized the sentence ... of the district court of Irkutsk dated Date anonymized was brought into compliance with the Federal Law of December 8, 2003 No. 162-FZ, the actions of O.V. Starozhilov. re-qualified from Part 2 of Art. 228 of the Criminal Code of the Russian Federation, the punishment was commuted to 4 years in prison to be served in a general regime correctional colony. From punishment in the form of confiscation of property Starozhilov O.V. released.

Released on November 19, 2004 after serving his sentence,

acquitted of the charge of committing a crime under Part 2 of Art. 302 of the Code of Criminal Procedure of the Russian Federation for lack of corpus delicti.

For Starozhilov O.V. the right to rehabilitation and filing a claim for compensation for property and moral damage has been recognized.

Having heard the report of judge Popova I.P., having heard the opinion of the deputy prosecutor ... of the district of Irkutsk Serebrennikov O.Yu. on the reversal of the verdict based on the arguments of the cassation submission, judicial panel

INSTALLED:

The bodies of inquiry Starozhilov O.V. was accused of committing robbery, that is, open theft of someone else's property belonging to the victim, individual entrepreneur Sh.

By the verdict of the court Starozhilov O.V. acquitted of the charge on the basis of clause 3, part 2 of art. 302 of the Code of Criminal Procedure of the Russian Federation for lack of corpus delicti.

In the cassation submission

state prosecutor Serebrennikov O.Yu. considers the sentence subject to cancellation due to the discrepancy between the court's conclusions and the actual circumstances of the criminal case and the incorrect application of the criminal law.

In support of the submission, he points out that at the court hearing it was reliably established that Starozhilov O.V. openly stole someone else's property in the amount of 282 rubles. Believes that the court unreasonably regarded this act as insignificant, falling under Part 2 of Art. 14 of the Criminal Code of the Russian Federation, since liability for open theft of property is provided only by the Criminal Law. Indicates that the circumstances of the commission by Starozhilov O.The. open theft indicate his gross disregard for property relations, which cannot but cause significant harm to social relations protected by criminal law.

According to the state prosecutor, the court’s conclusions about the insignificance of the act committed by O.V. Starozhilov. do not correspond to the actual circumstances of the criminal case established at the court hearing.

It also indicates that most crimes of minor and moderate gravity, provided for by the Criminal Code of the Russian Federation, also cause minor harm to victims, do not entail socially dangerous and grave consequences, but criminal punishment is provided for their commission. Method of committing a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation is not violent, since this is its feature that distinguishes this crime from others. Despite the fact that the damage of 282 rubles for the victim Sh. is not significant, if the person who stole the property was not identified, the amount of damage was recovered from the seller K., for whom the damage of 282 rubles, taking into account her earnings, would be significant. He believes that the court, by indicating in the verdict that the damage was insignificant for the person (victim Sh.), who has an income of 130,000 rubles, violated the principle of equality of persons who committed a crime before the law.

Believes that the fact that the victim has no complaints against the defendant and her request to forgive him, as well as a full admission of guilt and repentance for the crime, disability of group 2 and positive characteristics should be taken into account as mitigating circumstances for the punishment, but not as circumstances indicating insignificance perfect act. Draws attention to the fact that according to the description, Starozhilov O.V. at the place of residence is characterized as satisfactory, not positive.

He asks that the verdict be overturned and that the criminal case be sent for a new trial to the same court in a different composition of the court.

In objections

to the cassation presentation of the state prosecutor, the defense attorney of the acquitted Starozhilova O.V. – lawyer P.D. Zhuravlev, presenting his arguments, considers the submission to be unfounded and asks to leave the verdict unchanged.

After checking

materials of the criminal case, having discussed the arguments of the cassation submission and objections to it, the judicial panel finds the verdict legal and justified.

In accordance with Part 2 of Art. 14 of the Criminal Code of the Russian Federation, an action (inaction), although formally containing signs of any act provided for by the Criminal Code of the Russian Federation, but due to its insignificance, does not pose a public danger, is not a crime.

According to the meaning of the law, the criterion for classifying an offense as a crime is the social danger of such an act, sufficient for this act to cause harm to social relations protected by criminal law.

In deciding to acquit O.V. Starozhilov, the court of first instance pointed out that the act he committed formally falls under the elements of a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation, however, due to its insignificance, it does not pose a public danger.

The court motivated its conclusion by the fact that the act committed by O.V. Starozhilov. caused minor harm to the victim, the method of committing the act is not violent, the item of theft has an insignificant value taking into account the monthly income of the victim, the fact of theft did not entail socially dangerous and serious consequences, the harm caused to the individual entrepreneur is insignificant and was compensated by the defendant, the court also took into account the opinion of the victim , information about the identity of O.V. Starozhilova. and other circumstances.

The panel of judges agrees with these conclusions and is convinced that the court of first instance correctly established and carefully analyzed the factual circumstances of the case, the verdict contains motivated judgments, according to which the court came to the conclusion that the act committed by O.V. Starozhilov. is insignificant.

In this criminal case, the inquiry authorities have not established or provided evidence that by the actions of O.V. Starozhilov. significant harm was caused to public relations protected by criminal law, and his actions resulted in grave consequences. That is, no measures were taken to establish the social danger of what O.V. Starozhilov did.

Contrary to the arguments of the cassation presentation, the formal coincidence of the signs committed by O.V. Starozhilov. acts with signs of a crime under Part 1 of Art. 161 of the Criminal Code of the Russian Federation in this case, taking into account the fact that the act did not cause significant harm to social relations protected by criminal law, does not indicate that this act is a crime for the commission of which Starozhilov O.V. must bear criminal liability.

In this regard, the court of first instance came to a reasonable conclusion about the absence of O.V. Starozhilov’s act. corpus delicti, and made the right decision to acquit him of the charges brought in accordance with paragraph 2 of part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation.

The court's conclusions about the insignificance of the act committed by O.V. Starozhilov are based on a study and proper assessment of the entire body of evidence obtained by the bodies of inquiry, are fully consistent with the factual circumstances of the case established at the court hearing and do not contradict them.

In itself, the method of open theft of property, without taking into account other circumstances of the case, cannot be recognized as a basis indicating the impossibility of recognizing the act as insignificant.

The state prosecutor's statement that most crimes of minor and medium gravity, provided for by the Criminal Code of the Russian Federation, also cause minor harm to victims, do not entail socially dangerous and grave consequences, but criminal punishment is provided for their commission, is untenable. Since the appealed court verdict took place in a specific criminal case and in relation to the factual circumstances that were established during its consideration.

The state prosecutor's reference to the fact that if the person who stole the property had not been identified, the amount of damage would have been recovered from the store seller, for whom the damage of 282 rubles, taking into account her earnings, would have been significant, cannot be recognized by the judicial panel as a basis for overturning the verdict , since it contradicts the provisions of Art. 252 of the Code of Criminal Procedure of the Russian Federation on the limits of judicial proceedings.

The judicial panel does not see any violation of the principle of equality of persons who have committed a crime before the law in connection with the court's indication of the insignificance of damage to the victim, who has an income of 130,000 rubles, as indicated in the cassation presentation.

The fact that the victim has no claims against the defendant and her request to forgive him, as well as the full confession of O.V. Starozhilov guilt and repentance for the deed, disability of the 2nd group and positive characteristics, were taken into account by the court along with the nature and circumstances of the committed act, the absence of serious consequences, compensation for harm to the victim, which together allowed the court to come to the conclusion that the crime committed by O.V. Starozhilov was insignificant. deeds. Therefore, the arguments of the cassation submission in this part are also recognized by the judicial panel as untenable.

The court's indication in the verdict is that Starozhilov O.V. at the place of residence is characterized positively, whereas according to the characteristics available in the case materials, it is characterized satisfactorily, is not a significant violation, and is not a basis for canceling or changing the sentence.

Under such circumstances, the cassation submission of the state prosecutor cannot be satisfied. The judicial panel does not find any procedural violations that influenced or could influence the rendering of a legal, reasonable and fair sentence, entailing the unconditional reversal of the sentence.

Based on the above and guided by Art. Art. 377, 378, 388 Code of Criminal Procedure of the Russian Federation, judicial board

DEFINED:

The verdict ... of the district court of Irkutsk from the date is anonymized. in relation to Starozhilov O.V. left unchanged, and the cassation submission of the state prosecutor - without satisfaction.

Chairman: O.V. Zhdanova

Judges: I.P. Popova

ON THE. Tsarieva

Comments

The Criminal Code states that this act is open theft. It is done without violence. If violent methods are still used, they are not dangerous to the life of the victim.

The peculiarity of the act under Part 1 of Art. 161 of the Criminal Code of the Russian Federation (“Robbery”), as already mentioned, is an open form. It is committed in the presence of the victim or other witnesses. At the same time, you should know that only those actions in which the perpetrator is aware of this fact can be considered open theft, that is, he understands that the actions he performs are carried out in the presence of other persons.

What conclusion should be drawn from all of the above? Robbery is the actions of a criminal aimed at suddenly taking possession of another person’s property, which is usually committed in a public place. A typical example is when a criminal suddenly snatches a passerby's bag, mobile phone or any other valuable item. In this case, bodily harm is not intentionally caused to the victim, and if this happens, it is completely accidental, due to the specificity of this unlawful act.

Complicity in a crime under Article 161 of the Criminal Code of the Russian Federation

Article 32 of the Criminal Code of the Russian Federation defines that complicity means the joint participation of two or more persons in the commission of a crime.

In order for the actions of several persons to be considered complicity, the simultaneous presence of objective and subjective signs is necessary.

Objective signs:

Number of partners. Two or more persons subject to criminal liability. It is necessary that at the time of committing the robbery, the attackers were recognized as sane, and also reached 14 years of age.

Joint actions of partners. Persons must commit robbery together. The actions of the attackers must be interdependent, that is, each of them contributes to the implementation of the objective side of the robbery. The joint actions of the accomplices is also evidenced by their desire to achieve a single criminal result - to openly steal someone else's property.

Any stage of the commission of a crime. Complicity is possible at any stage of the robbery (preparation/attempt) until its completion, that is, until the moment when the perpetrators have the opportunity to dispose of the stolen property.

Subjective signs:

Awareness of joint actions. Each of the accomplices must realize that he is committing a robbery with someone, and not alone.
Common intent of the accomplices. Attackers must not only understand that they are not acting alone, but also be open to the participation of others.

Important! When qualifying the actions of several persons, it is very important to establish the listed signs, because in the absence of at least one of them, it is impossible to talk about complicity.

The next step after establishing complicity is to determine its form. In accordance with Art. 35 and 161 of the Criminal Code of the Russian Federation, robbery can be committed in the following forms:

A group of persons without prior agreement.
By a group of persons by prior conspiracy.
An organized group.

Each form of complicity has characteristics that allow them to be distinguished from each other. Let's look at them.

Qualification

Often those present do not notice the theft. Sometimes, observing these actions, they consider them legitimate. This is what the culprit is counting on. In such a case, theft is not recognized as open, and therefore is not robbery. If the culprit took possession of someone else’s property, but when committing these actions believed that there were no witnesses to the crime, then, regardless of whether there were any, such a crime is already regarded as theft.

As we can see, a person who has committed theft, subject to a number of conditions, can be charged under Art. 161 part 1 of the Criminal Code of the Russian Federation.

By prior agreement

Most often, criminals agree in advance to commit a robbery in order to plan everything more carefully and try to avoid punishment. Therefore, the legislator, realizing the greater danger to society, considers the sign “a group of persons by prior conspiracy” as a qualifying sign of robbery (clause “a”, part 2 of article 161 of the Criminal Code of the Russian Federation).

Let us consider the signs of this form of complicity:

Robbery can be committed by two or more co-perpetrators, that is, persons who either fully or partially jointly perform the objective side of the robbery.
Preliminary agreement. The persons must agree to commit the robbery together before the objective party begins execution. Such a conspiracy does not involve careful and thoughtful planning, since the accomplices simply discuss some aspects of the planned robbery (place and time of meeting, etc.).
The degree of coordination of the actions of the accomplices is low, and the criminal connection is characterized by short duration. The criminals have nothing in common; they do not plan further joint actions.

Let's look at an example from judicial practice:

Neznamov suggested that Kopylov steal metal pipes from the roof of the garage. They agreed in advance on the place and time of the meeting. Initially, Neznamov and Kopylov planned to secretly steal someone else's property, but at the crime scene their actions were discovered by a neighbor who demanded the return of the stolen property. Neznamov and Kopylov ignored his words and continued to steal property, but now openly.

The Novosibirsk District Court of the Novosibirsk Region qualified the actions of Neznamov and Kopylov as robbery committed by a group of persons by prior conspiracy (clause “a” of Part 2 of Article 161 of the Criminal Code of the Russian Federation), and sentenced each to imprisonment for a period of 2 years 5 months. Despite the fact that the conspiracy between the guilty parties initially arose to commit theft, their actions were noticed by a neighbor, so the secret theft developed into an open theft.

Heaviness

Article 161 includes three parts. An ordinary robbery that does not entail negative consequences for the health of the victim is classified as a crime of moderate gravity. It is stated in the first part of the above article. For committing this crime, the perpetrator faces a fine. In the worst case scenario, the court will appoint, on the basis of Art. 161 part 1 of the Criminal Code of the Russian Federation, punishment in the form of imprisonment for four years.

The second part of Article 161 is devoted to an act that is not just open theft, but can also be accompanied by the following actions:

illegal entry into a home;
use of violence;
theft of property on a large scale.

Such acts are classified as serious. If proven guilty of committing a crime referred to in Art. 161 part 1 of the Criminal Code of the Russian Federation, the term of imprisonment will not exceed four years. For criminals who commit robbery by breaking into someone else's apartment or using violent methods, the punishment will be somewhat more severe. The defendant can spend seven years in prison and pay a small fine.

The third part of Article 161 describes a crime that is committed by a group of persons and is open theft on a large scale. It belongs to the category of acts that are usually called particularly grave. The punishment for it is also more severe than for the crime provided for in Art. 161 part 1 of the Criminal Code of the Russian Federation. The court's verdict may be as follows: punishment in the form of imprisonment for up to five years or a fine of up to one million rubles.

Verdict part 2 of article 161 of the Criminal Code of the Russian Federation

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VERDICT In the name of the Russian Federation St. Petersburg XX.XX.XXXX Judge of the Vasileostrovsky District Court of St. Petersburg Gershevsky Yu.R., with the participation of the state prosecutor - senior assistant prosecutor of the Vasileostrovsky district of St. Petersburg Borisova O.V., defendant Polyakov A. V., his defender - lawyer Melnikov V.A., who presented certificate No. XXX, warrant No. XXX of the defendant Damm K.A. and his defender - lawyer Semchenkov A.S., who presented certificate No. XXX and warrant No. XXX to the secretary of the court session Ivanova I.V., having examined in open court the materials of the criminal case against: POLYAKOV A.V., XX.XX. XXXX year of birth, native of ..., registered and residing at the address: ..., previously convicted: - XX.XX.XXXX - ... by the district court of St. Petersburg under Art. 228 part 1, 73 of the Criminal Code of the Russian Federation, suspended imprisonment for a period of 1 year with a probationary period of 1 year. By resolution dated XX.XX.XXXX ... RFU of St. Petersburg, the suspended sentence was canceled on the basis of Art. 74 Part 5 of the Criminal Code of the Russian Federation; - XX.XX.XXXX - ... by the district court of St. Petersburg under Art. 228 part 1, 74 part 5, 70 of the Criminal Code of the Russian Federation final punishment 1 year 1 month of imprisonment in a colony-settlement, released after serving the sentence, DAMMA K.A., XX.XX.XXXX year of birth, native of ..., registered under address: ..., living in St. Petersburg at the address ... previously convicted: XX.XX.XXXX - ... district court of St. Petersburg Art. 228 part 1 of the Criminal Code of the Russian Federation suspended imprisonment for a period of 1 year with a probationary period of 1 year 6 months; XX.XX.XXXX - ... by the district court of St. Petersburg Art. 139 part 2, 73 of the Criminal Code of the Russian Federation suspended imprisonment for a period of 1 year 4 months. with a probationary period of 2 years; XX.XX.XXXX - ... District Court of St. Petersburg Art. 158 part 3 paragraph “a” of the Criminal Code of the Russian Federation imprisonment for a term of 2 years with the addition of sentences dated XX.XX.XXXX, XX.XX.XXXX for a total term of 2 years 2 months. XX.XX.XXXX released on parole on the basis. Art. 79 of the Criminal Code of the Russian Federation; XX.XX.XXXX year - ... by the district court of St. Petersburg, art. 30 part 3 158 part 1 of the Criminal Code of the Russian Federation, imprisonment for a period of 1 year 6 months with the addition of a sentence dated XX.XX.XXXX - total term 1 year 8 months imprisonment. Released after serving the sentence of XX.XX.XXXX accused of committing a crime under paragraph “a, d”, part 2 of Art. 161 of the Criminal Code of the Russian Federation, ESTABLISHED: Polyakov A.V., Damm K.A. committed a robbery, i.e. open theft of someone else's property by a group of persons by prior conspiracy, with the use of violence not dangerous to life and health. XX.XX.XXXX about ... hours ... minutes, Polyakov A.V. by prior conspiracy and together with Damm K.A., having the intent to steal someone else's property, for selfish reasons, while at the house of XXX, they wrapped their hands around O. A.B.'s neck, threw him onto the asphalt, inflicted at least 3 blows on the latter punches and kicks to the head and torso, causing, according to the expert's conclusion, bruises of the soft tissues of the frontal region, the right forearm in the form of painful swelling, an abrasion of the left cheek, these injuries do not lead to short-term health problems and are regarded as violence not dangerous to life and health, after whereupon, in continuation of their criminal actions, they openly stole from the victim’s jeans pocket a mobile phone “…” with a SIM card with a total value of ... rubles, belonging to O. A.B., causing damage to the victim for a total amount of ... rubles, after which they fled the scene of the crime and disposed of the stolen goods. Polyakov A.V., while Damm K.V. grabbed O.A.B.’s neck with his hand, threw the latter onto the asphalt, then A.V. Polyakov. together with Damm K.V. struck at least 3 punches and kicks to the head and torso, after which Damm K.V. openly stole the specified mobile phone from his jeans pocket. Defendants Poyalkov A.V., Damm K.A. They fully admitted their guilt in committing this crime, supported their petitions, stated when familiarizing themselves with the materials of the criminal case, to consider the criminal case in a special procedure for making a judicial decision with the consent of the defendants to the charge, in the manner established by Chapter 40 of the Code of Criminal Procedure of the Russian Federation. These petitions were filed by the defendants in the manner established by the Code of Criminal Procedure of the Russian Federation; the defendants are aware of the nature and consequences of these petitions. The punishment for committing this crime does not exceed ten years in prison. The defendants' defenders asked to consider the criminal case without examining the evidence; the state prosecutor and the victim did not present any objections to the consideration of the criminal case in a special procedure for making a judicial decision. The charge of committing a crime, with which the defendants agree Polyakov A.V. and Damm K.A. is justified and supported by evidence collected in the criminal case. Taking into account the above, the court considers it possible to consider the criminal case in the manner established by Chapter 40 of the Code of Criminal Procedure of the Russian Federation, i.e. in a special procedure for making a court decision if the defendant agrees with the charge. The court qualifies the actions of each defendant under paragraphs “a, d” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation, as amended by the law of March 7, 2011 No. 26-FZ, namely as robbery, i.e. open theft of someone else's property by a group of persons by prior conspiracy, with the use of violence not dangerous to life and health. When resolving the issue of the measure of punishment for the defendant for the crime committed, the court is guided by the principle of justice, the goals and general principles of imposing criminal punishment and takes into account the requirements of Part 7 of Article 316 of the Code of Criminal Procedure of the Russian Federation on the imposition of punishment when considering a criminal case in accordance with Chapter 40 of the Code of Criminal Procedure of the Russian Federation. Based on Article 61 of the Criminal Code of the Russian Federation, the court recognizes as circumstances mitigating the punishment of both defendants a full admission of guilt and repentance for their deeds. ... Based on Article 63 of the Criminal Code of the Russian Federation, the court recognizes the presence of a dangerous recidivism of crimes as a circumstance aggravating the punishment of each defendant. The court comes to this conclusion on the basis that the defendant Polyakov V.A. committed a real serious crime, having previously been convicted of committing crimes of medium gravity by sentences ... of the district court of St. Petersburg dated XX.XX.XXXX and XX.XX.XXXX, served a sentence of imprisonment, these convictions were not expunged and repaid. Defendant Damm K.A. committed the specified crime, I will have previously been convicted of committing crimes of medium gravity and serious sentences ... by the district court of St. Petersburg dated XX.XX.XXXX, XX.XX.XXXX, served a sentence of imprisonment, the convictions have not been expunged and repaid. Assessing the severity and social danger of the crime committed, the court takes into account that the defendants committed a serious crime against property for the purpose of illegal selfish enrichment, involving the use of violence against the victim. The court takes into account other information about the identity of the defendants V.A. Polyakov. and Damma K.A., who have a permanent place of residence in St. Petersburg, are not registered with a psychiatrist or narcologist, and worked before being taken into custody. Taking into account the above, taking into account the nature and degree of public danger of the crime committed, data on the identity of the defendants Polyakov V.A. and Damm K.A., the circumstances of the case, mitigating and aggravating the punishment, as well as the impact of the imposed punishment on the correction of the defendants, the court considers it fair to assign the defendants the main sentence of imprisonment. Due to the commission of a crime in case of relapse of crimes, a persistent attitude, incl. after release from prison, the court considers it necessary to impose an additional punishment in the form of restriction of freedom for committing new crimes, and taking into account the mercenary motive of the crime committed, with a fine. Taking into account the presence of the defendant Polyakov A.V. the mitigating circumstance provided for in Article 61 of the Criminal Code of the Russian Federation, namely the presence of a young child..., the court considers it possible to apply in relation to Polyakov A.V. Part 3 of Article 68 of the Criminal Code of the Russian Federation and impose punishment without taking into account the presence of relapse of crimes in his actions. The court does not see any grounds for applying Article 73 of the Criminal Code of the Russian Federation due to the absence of circumstances significantly reducing the degree of public danger of the crime committed and the absence of grounds to believe that the defendants Polyakov A.V. and Damm K.A. may take the path of correction without actually serving a sentence, since they previously served a sentence in prison, did not draw the proper conclusions for themselves, and committed a new serious intentional crime. No civil claim has been filed in the case. In accordance with paragraph “c” of Part 1 of Article 58 of the Criminal Code of the Russian Federation, a sentence of imprisonment must be served by the defendants in a high-security correctional colony. Based on the above, guided by Articles 303, 304, 307-309, 314-317 of the Code of Criminal Procedure of the Russian Federation, the court SENTENCED: Polyakova A.V. found guilty of committing a crime under paragraphs “a, d”, part 2 of Art. 161 of the Criminal Code of the Russian Federation as amended by Law No. 26-FZ dated 03/07/2011 and impose a sentence of imprisonment for a term of 1 (one) year 6 (six) months with a fine of ... thousand rubles, followed by restriction of liberty for a term of 1 (one) ) year, with serving the main sentence in a high-security correctional colony. Damma K.A. found guilty of committing a crime under paragraphs “a, d”, part 2 of Art. 161 of the Criminal Code of the Russian Federation as amended by the law of 03/07/2011 No. 26-FZ and impose a sentence of imprisonment for a term of 2 (two) years 4 (four) months with a fine in the amount of ... thousand rubles, followed by restriction of freedom for a term of 1 (one ) year, with serving the main sentence in a high-security correctional colony. Guided by Part 1 of Article 53 of the Criminal Code of the Russian Federation, for the period of serving an additional sentence in the form of restriction of freedom, impose on the defendants Polyakov A.V., Damm K.A. for each individual, the following restrictions and obligations: - do not change their place of permanent residence without the consent of the specialized government body that supervises the serving of sentences by convicts in the form of restriction of freedom; - twice a month on prescribed days, appear at the specified government agency to register and report on your behavior; - do not travel outside the municipality at your place of permanent residence; - do not leave the apartment at your place of permanent residence during the period from ... hours ... minutes to ... hours ... minutes; Preventive measure against Polyakov A.V., Damm K.A. in the form of detention in custody shall be canceled upon entry into force of the sentence. The term of serving the main sentence shall be calculated by the defendants Polyakov A.V., Dammu K.A. to each individual from the date of the verdict, i.e. from XX.XX.XXXX. Count the time of detention from the date of actual detention into the term of serving the sentence, i.e. from XX.XX.XXXX to XX.XX.XXXX. Procedural costs shall be charged to the federal budget. The verdict can be appealed in cassation to the St. Petersburg City Court within 10 days from the date of its proclamation. The verdict cannot be appealed on the grounds provided for in paragraph 1 of Art. 379 Code of Criminal Procedure of the Russian Federation. If a cassation appeal is filed, the convicted person has the right to petition for his participation in the consideration of the criminal case by the court of cassation. Judge Yu.R. Gershevsky

Temporary possession of property

In criminal practice there are cases of open theft, which, however, cannot be qualified as robbery. If a person has taken possession of someone else’s property, but did so without the intention of further use, then the prosecutor in court cannot refer to Article 161.

An example would be the following situation. Let's say a certain citizen returns home in the evening with his wife, who is in late pregnancy. A woman suddenly goes into labor, and in order to get to the hospital, a citizen tries to stop the car. But he fails to do this for a long time. None of the cars passing by stop. When this can be done, the driver declares, for example, that he is going in the other direction and refuses to help the couple. Then the citizen forcibly pulls him out of the car and goes with his wife to the maternity hospital. This conditional person committed open theft, but his actions cannot be qualified as the act discussed in this article.

Causing violence

The second part of the criminal article that we are considering contains conditions that qualify the crime as robbery. One of them is infliction of violence that does not pose a danger to the physical health of the victim. How can we determine whether the physical impact that a criminal has on a person poses a significant threat? Real harm to health is confirmed by the following signs:

permanent disability;
physical pain;
restriction of freedom.

If the harm to health is characterized by minor bodily injuries, then the violence that the offender inflicted during the attack is defined as “violence that is not life-threatening.”

Signs

Robbery is a crime that is classified as an act of varying severity. This level can be determined using the following signs:

size of the stolen item;
repetition of the act;
prior conspiracy;
home penetration;
causing serious bodily harm.

A crime by prior conspiracy is one that was planned before it was committed. Participation in the open theft of a group of people moves this illegal action into the category of more serious acts. Accordingly, it adds several years to the term of imprisonment of each of the participants.

Repeatedness is a sign that says that before the crime was committed, the perpetrator or a group of them had already taken similar actions. But if the accused has not previously been prosecuted, in the judicial process his actions are considered as a set of crimes.

Burglary is the secret entry into a home for the purpose of stealing property. If the accused committed theft in the victim’s house, but ended up in it by his own will, he cannot be prosecuted under Article 161. In court, his case will be considered on the basis of a criminal article of theft.

Finally, what is significant damage? This phrase is a very relative concept. In each individual case, determining the level of damage depends on the court's decision. But, as a rule, it is based on the average income of the victim.

Among the legislative norms that are relevant to the qualification of this crime, from the point of view of many theoretical and practical workers, a clearer distinction is required between such concepts as non-dangerous and dangerous violence, significant and minor damage.

Committed by a group of persons

Article 161 of the Criminal Code of the Russian Federation does not contain such a qualifying feature as “a group of persons without prior conspiracy.” Therefore, in the absence of any qualifying signs, the actions of persons must be qualified under Part 1 of Art. 161 of the Criminal Code of the Russian Federation.

However, this does not mean that a person who committed simple robbery alone and persons who committed robbery without prior agreement will bear the same penalties. Therefore, when making a decision, the court takes into account the fact of robbery by a group of persons as an aggravating circumstance (clause “c” of Part 1 of Article 63 of the Criminal Code of the Russian Federation).

This decision of the legislator is explained by the fact that the form of complicity in question is less common in practice (compared to others), and also has a lower degree of public danger.

Robbery committed by a group of persons, along with signs of complicity, is characterized by the following features:

Two or more performers participate in a robbery, that is, persons must jointly perform the objective side of the robbery (in whole or in part).
Lack of prior agreement to commit robbery. Attackers act spontaneously. Their criminal interaction is characterized by a short time period, which does not imply the possibility of agreeing to commit a robbery.
In most cases, the intent to commit joint robbery arises at the time the crime is committed. There are also cases when persons, before starting to carry out the objective side of the robbery, exchange a few phrases and begin to act.
The criminal connection between the attackers is not sustainable, that is, individuals commit only one robbery and then disperse.

Judicial practice: term and sentence

Let's look at an example from judicial practice:

Yurenko and Tupikov, walking in the evening, saw a stranger (T.). Yurenko approached the young man and started a small conversation. During this conversation, the idea came to his mind to openly steal his interlocutor’s backpack.

At first, Yurenko simply asked T. to give him the backpack, but he refused. Therefore, Yu. grabbed T. by the neck, threw him to the ground, sat on his chest and began to hold him, while expressing demands for the transfer of property.

Tupikov, noticing Yurenko’s actions, decided to help his friend. He ran up to the victim and struck him twice in the head. They then hit T. several times until he gave up the backpack.

Initially, the preliminary investigation authorities qualified the actions of Yurenko and Tupikov as robbery committed by a group of persons by prior conspiracy, using “non-dangerous” violence (clauses “a”, “d”, part 2 of article 161 of the Criminal Code of the Russian Federation).

However, the Balakovsky District Court of the Saratov Region did not agree with this qualification, considering that there was no prior agreement between the perpetrators for the following reasons:

Yurenko’s intention to commit robbery arose during a conversation with the victim, that is, he did not have time to negotiate with Tupikov to help him.
Tupikov, noticing Yurenko’s actions, decided to join in carrying out the objective side of the robbery. That is, the interaction between them arose during the commission of a crime.
Yurenko did not mind that Tupikov decided to help him. After Tupikov joined, they began to act together and in concert.

The court qualified the actions of Yurenko and Tupikov under paragraph “g” of Part 2 of Art. 161 of the Criminal Code of the Russian Federation as robbery with the use of violence that is not dangerous to life/health. When making its decision, the court also took into account the fact of joint robbery as an aggravating circumstance, therefore Yurenko and Tupikov were sentenced to imprisonment for 8 months.

Recommended reading:

Concept and signs of robbery

Criminal legal characteristics of robbery

The difference between robbery and related compounds