The imposition of punishment based on the totality of sentences is provided for by the Criminal Code, but an authorized person can resort to this measure of responsibility only if a number of conditions coincide and if certain nuances are taken into account. Here you can point out inaction on the part of the culprit or the commission of additional actions that aggravate the offense, as well as having a single goal with the main crime.
I have an idea of how punishment is determined for a set of crimes (hereinafter referred to as CP). In some situations, information of this kind may be really necessary, which means that my note will be useful for readers.
How is the concept interpreted in the Criminal Code?
To move on to discussing questions about the types and examples of aggregation of sentences, it is worth first defining this concept. In the Criminal Code of the Russian Federation, the term is described as a form of plurality of criminal acts. If we try to explain what the essence of the crime is in simple words, then we can say that we are talking about the commission of two or more atrocities at once, each of which is qualified independently.
When passing a sentence in such a case, the following features are taken into account:
- the circumstances of the case and the characteristics of the concept “set of crime” are compared;
- crimes can have different forms of guilt, and directed at one or different objects;
- the guilty person must not have a criminal record for acts already committed;
- The form of the totality of crimes must be established - ideal or real.
Only by taking into account all the listed features can we speak about the totality of atrocities of a criminal nature and pass a sentence taking this point into account.
Commentary on Article 17 of the Criminal Code of the Russian Federation
According to Art. 17 of the Criminal Code of the Russian Federation, a totality of crimes is recognized as the commission of two or more crimes provided for by various articles or parts of an article of the Criminal Code of the Russian Federation, for none of which the person was convicted, except for cases where the commission of two or more crimes is provided for by the articles of the Special Part of the Criminal Code of the Russian Federation as a circumstance entailing a more severe punishment (Part 1), as well as one action (inaction) containing signs of crimes provided for by two or more articles of the Criminal Code of the Russian Federation (Part 2).
In case of aggregation of crimes, a person bears criminal liability for each crime committed under the relevant article or part of an article of the Criminal Code of the Russian Federation.
These provisions are intended to ensure the principle of fairness in the application of criminal law, according to which punishment and other measures of a criminal legal nature applied to a person who has committed a crime must correspond, in particular, to the nature and degree of public danger of the crime (Part 1 of Article 6 Criminal Code of the Russian Federation). Ensuring such compliance in cases where harm was caused to several groups of social relations protected by criminal law is achieved, among other things, by qualifying the act and imposing punishment for the totality of crimes.
A different decision could lead to the fact that in the event of harm being caused simultaneously to several objects, the entirety of which is not protected by one or another specific norm of the criminal law, the harm caused to some of these objects would not receive the necessary legal assessment, and the interests of the victims in such would be unprotected in this case.
The definition of the concept of a set of crimes given in Art. 17 of the Criminal Code of the Russian Federation, allows us to highlight its characteristic features.
The first is the commission of two or more independent crimes by a person. The independence of crimes is evidenced by such circumstances as their different objective side, the absence of a single intent to commit homogeneous actions, and different objects of encroachment. These circumstances make it possible to distinguish a set of crimes from single complex crimes.
In this case, the crimes that form the aggregate can be heterogeneous (provided for by different articles of the Special Part of the Criminal Code of the Russian Federation, for example, committing theft and murder) or homogeneous (provided for by the same article of the Special Part of the Criminal Code of the Russian Federation, for example, committing several thefts).
The commission of one act by a person, characterized by several elements of a crime provided for by various parts or paragraphs of one part of one article of the Criminal Code of the Russian Federation, does not form a set of crimes. Thus, committing theft with illegal entry into a home (clause “a”, part 3, article 158 of the Criminal Code of the Russian Federation), on an especially large scale (clause “b”, part 4, article 158 of the Criminal Code of the Russian Federation) does not form a set of crimes.
In addition, the crimes included in the aggregate may vary depending on the stage of the crime.
The commission of two or more crimes does not form a combination in cases where their commission is provided for by the articles of the Special Part of the Criminal Code of the Russian Federation as a circumstance entailing a more severe punishment. Thus, the infliction of grievous bodily harm (Article 111 of the Criminal Code of the Russian Federation), which entailed the death of the victim by negligence, does not form a set of crimes, although causing death by negligence is provided for in an independent article. 109 of the Criminal Code of the Russian Federation. In this case, causing death by negligence is a circumstance entailing a more severe punishment, which excludes the presence of a combination of crimes.
However, in some cases, establishing such a circumstance causes certain difficulties. In particular, paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation establishes liability for murder associated with robbery, extortion or banditry. In this regard, the question arose about the existence of a set of crimes, since an indication in the law of the connection between murder and robbery can be regarded as an indication of a circumstance entailing a more severe punishment. With this approach to assessing an act, murder associated, for example, with robbery, should be classified as a single crime.
This question was answered in paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 27, 1999 N 1 “On judicial practice in cases of murder (Article 105 of the Criminal Code of the Russian Federation)”, which states that as associated with robbery , extortion or banditry should be classified as murder in the process of committing these crimes. What was done in such cases is qualified under paragraph “h” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation in conjunction with articles of the Criminal Code of the Russian Federation providing for liability for robbery, extortion or banditry.
At the same time, it should be noted that sometimes the position of the Plenum of the Supreme Court of the Russian Federation on the issue of the presence or absence of a set of crimes in certain cases is subject to changes. Thus, in paragraph 5 of the said Resolution, it was proposed to qualify the murder of two or more persons, if the actions of the perpetrator were covered by a single intent and were committed, as a rule, simultaneously, under paragraph “a” of Part 2 of Art. 105 of the Criminal Code of the Russian Federation, i.e. as a single crime. If there was intent at different times, the murder of two or more persons should be classified as a combination of crimes. In accordance with the current version of the resolution, it is proposed to qualify the murder of two or more persons as a single crime, regardless of the presence or absence of a single intent.
The next mandatory feature of a set of crimes is the absence of conviction for the crimes included in the set. In this case, the fact of conviction will take place from the moment the verdict is announced. This position follows from the provision enshrined in paragraph 36 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 11, 2007 No. 2 “On the practice of imposing criminal punishment by the courts of the Russian Federation,” which states that “when a person commits a new crime after the pronouncement of a sentence for the previous crime, courts should proceed from the fact that, since the passing of a sentence ends with its public proclamation, the rules for imposing punishment based on the totality of sentences (Article 70 of the Criminal Code of the Russian Federation) also apply in the case when, at the time the convicted person committed a new crime, the first sentence had not entered into legal force.” .
In this regard, only those crimes for which a person has not been convicted can form a set, i.e. no conviction has been made against him.
A set of crimes can form crimes committed by one or different actions, both at different times and simultaneously. In this regard, two types of aggregate crimes are distinguished: real and ideal aggregate.
The real totality of crimes is the commission by the perpetrator of several actions, usually two or more crimes at different times.
The length of time separating the crimes is irrelevant to the existence of a real population. It can be significant or small. For example, in a murder committed in the process of robbery, both crimes are carried out almost simultaneously, but form a set of crimes, since they are committed by different actions. The time of commission of two or more crimes may completely coincide. Thus, the simultaneous illegal possession of weapons and drugs forms a real set of crimes, since at the time of the commission of one ongoing crime, another is committed, and both crimes continue to be committed until the state of storage ceases. The presence of a real aggregate in this case is due to the fact that outwardly almost identical storage actions are still different, since they are performed independently in relation to each item of storage.
Thus, the distinctive feature of a real set of crimes is the commission of several crimes by different actions. The same position is taken by the Supreme Court of the Russian Federation, which in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51 “On judicial practice in cases of fraud, misappropriation and embezzlement”, in particular, about <1>.
——————————— <1> Bulletin of the Supreme Court of the Russian Federation. 2008. N 2.
Unlike the real one, the ideal set of crimes represents the commission by a person of one action (inaction) containing signs of crimes provided for by two or more articles of the criminal law.
In this case, a person commits an action (inaction) that entails several different consequences, causing damage to various objects protected by different articles of the Special Part of the Criminal Code of the Russian Federation. At the same time, objects that are or may be harmed should not be correlated with each other as particular and general. In such situations, the actions of a person constitute a totality of crimes, since none of the norms separately covers the entire act.
For example, a perpetrator, in order to influence decision-making by authorities, commits an explosion in a residential building, as a result of which the residents die and the structure is destroyed. If there is a deliberate attitude towards the consequences, his actions are subject to qualification under Art. Art. 205, 105, 167 of the Criminal Code of the Russian Federation. In fact, with one action (explosion), the person committed three crimes: an act of terrorism, murder and intentional destruction of property. But the subjective side of the crimes included in the totality (both real and ideal) may be different. The law does not establish any restrictions in this regard. Thus, when a residential building is set on fire with the aim of destroying it, the attitude towards the death of the owner who died in the fire can be either intentional or careless, which, naturally, will affect the qualifications of the act.
Part 3 of Art. 17 of the Criminal Code of the Russian Federation establishes a general rule stating that if a crime is provided for by general and special norms, there is no totality of crimes and criminal liability arises according to the special norm. In this situation, we are not talking about a set of crimes, but about competition between norms. Thus, receiving a bribe (Article 290 of the Criminal Code of the Russian Federation) presupposes abuse of official powers (Article 285 of the Criminal Code of the Russian Federation). However, receiving a bribe does not form a set of crimes and does not require additional qualifications under Art. 285 of the Criminal Code of the Russian Federation, since this norm is general in relation to Art. 290 of the Criminal Code of the Russian Federation.
In some cases, the issue of the presence or absence of a set of crimes is resolved taking into account the sanctions of the relevant articles of the Special Part of the Criminal Code of the Russian Federation. This approach, for example, is widespread in relation to assaults committed with the use of physical violence. We are talking about what volume of physical violence is covered without additional qualification by the corresponding element of a specific crime, and when additional qualification is required under articles on crimes against life, health and physical freedom.
In practice, the main way to solve this problem is to compare the severity of specific sanctions, since the nature of the social danger of the crime, the degree of importance of a particular object of criminal legal protection, including the danger of harm caused to it, are formally reflected in the sanction.
A complex violent crime is classified under one article (or part) in cases where the sanction for such a crime is more severe than the sanctions for the use of physical violence in the relevant articles of Chapter 16 of the Criminal Code of the Russian Federation.
Thus, the elements of abuse of power include the use of violence or the threat of its use as a qualifying feature (clause “a”, part 3 of article 286 of the Criminal Code of the Russian Federation). Based on the severity of the sanctions for this crime (imprisonment for a term of three to ten years), the scope of physical violence in this article also covers torture (Article 117 of the Criminal Code of the Russian Federation), since the maximum punishment for torture, taking into account the qualifying circumstances, is imprisonment from three to seven years. Otherwise, qualification based on the totality of crimes would be required.
Main features of joint venture
The parameters characterizing such crimes can be quantitative and qualitative. In the first case, all committed criminal acts for which the person was convicted are taken into account. Only crimes that pose a public danger and have legal force can form a qualitative indicator.
Here it is worth indicating such points as the validity of the filed complaint or claim (the statute of limitations has been met) and the absence of punishment for one of the crimes. The main features of a joint venture include the following:
- crimes committed by a citizen provide for criminal punishment;
- each act must contain elements of individual offenses;
- the acts should not have elements of one crime;
- the atrocity must have concrete consequences as a result of its commission.
In the absence of these signs and characteristics, the actions of the accused will be classified under another article and will not be considered a joint venture.
What can be included in it and what can’t?
The totality of crimes may include only a few socially dangerous acts committed by a citizen in the absence of a criminal record for the identified episodes .
Moreover, each act must contain signs of individual crimes, classified under different articles of the Criminal Code of the Russian Federation.
If a person committed one crime aimed at several objects, then it will not be included in the totality .
The totality of crimes does not apply if the following factors are present :
- If one crime is committed in preparation for another socially dangerous act of a higher degree of severity.
- A socially dangerous act contains elements of a qualified and especially qualified crime.
- The crime contains signs of other socially dangerous acts (identical or similar elements of crime).
Types of joint ventures in criminal law
As I have already noted, there are two types of crimes: ideal and real. This classification is not described in the Criminal Code of the Russian Federation, but is used in judicial practice. Each type has its own characteristics, which must be taken into account when making a verdict. To compare these types, let's make a table:
| The perfect set of crimes | Real totality of crimes |
| An ideal joint crime is when one crime has characteristics of several, described in different legislative acts. Such crimes have a common goal, but the ways to achieve it may vary. | The definition states that the real totality of crimes is several acts dangerous to society, each with signs of an independent crime. Each committed act will provide for punishment, and the time difference between them does not matter. The most severe punishments and long terms are assigned precisely for such crimes. |
| An example of an ideal set of crimes | An example of a real set of crimes |
| Robbery causing grievous bodily harm or the death of the victim during the robbery will be types of an ideal joint venture. In judicial practice, this type is classified as a crime in which arson was committed to kill a specific person. | Here you can indicate such types of criminal actions as theft and hooliganism, extortion and robbery. If we talk about judicial practice, then a real joint venture can be called arson of a home to conceal a murder with the deprivation of life of third parties. |
Taking into account the presented data, we can conclude that the punishment for a real joint venture is much more severe than for an ideal one.
Ideal set
An ideal set of crimes is one action (inaction) containing signs of two or more crimes.
An ideal set can be formed, for example, if, in order to kill a certain person, a criminal used a grenade in a crowded place and wounded, in addition to the intended victim, other people: this act can be qualified simultaneously as murder and infliction of varying degrees of severity of harm to health. An ideal set may consist of two or three or more criminal acts. For example, according to the verdict of the Moscow City Court, K. was convicted of the fact that, abusing the trust of citizens who turned to him as a lawyer, under the threat of disclosing compromising information, he extorted money from them, allegedly to transfer it to officials. These actions form an ideal combination of three crimes: fraud, extortion and incitement to give a bribe[6].
It is indicated that only heterogeneous acts can form an ideal totality[7].
There is no ideal set in the following cases:
- If one of the acts acts as a stage of implementation or an integral part of another, more dangerous act: for example, causing minor harm to health during robbery is absorbed as a robbery, since it acts as one of the links in the process of violent theft of property [2].
- If the act contains signs of different qualified elements of the same crime[8].
- If the act contains signs of qualified and especially qualified elements of the same crime. In this case, the act is qualified according to the most stringent criminal law norm, but other qualifying criteria are also indicated in the final procedural document. It is necessary to take into account that in some cases an act may be qualified under several parts of the same article of the criminal law - if each part provides for a separate element of the crime, and not a qualifying feature of the main element.
The ideal set is less common in the criminal legislation of countries around the world than the real one. It either does not receive legislative regulation at all, or can be considered as a single crime, classified according to one, the most stringent norm. So, in Art. 11 § 2 of the Criminal Code of Poland states: “If an act contains signs provided for in two or more provisions of the criminal law, the court convicts for one crime on the basis of the entire set of these provisions.”
Meaning
A set of crimes is a type of multiplicity of crimes.
Mandatory conditions in this case are the absence of a criminal record and criminal prosecution for each of them.
The legislator considers this concept an aggravating circumstance. In judicial practice, it is permissible to impose maximum sentences for such socially dangerous acts.
Legal significance of the joint venture:
- the totality of crimes entails a certain procedure for assigning punishment (Article 69 of the Criminal Code of the Russian Federation);
- the fact of aggregation of crimes mainly affects the qualification of socially dangerous acts committed by a citizen (qualification is carried out under two or more articles of the Criminal Code);
- the maximum punishment for a combination of crimes in accordance with the law cannot exceed twenty-five years of imprisonment.
Difference from relapse
Recidivism and cumulative crimes are the two main types of multiplicity of crimes. These concepts have different meanings and differ in legal force .
Recidivism is considered to be the commission of a crime if there is a conviction for a previously committed socially dangerous act with a similar composition (for example, a citizen committed a murder, and after serving his sentence he was again detained for a similar act).
The main distinguishing feature of recidivism from a set of crimes is the presence or absence of a criminal record for the identified episodes.
The main differences between SP and relapse:
- when qualifying acts as a set of crimes, there is no criminal record for previously committed crimes;
- if the crime is repeated, there is a criminal record for committing a similar act.
