New edition of Art. 175 of the Criminal Code of the Russian Federation
1. Purchase or sale of property known to have been obtained by criminal means not promised in advance -
shall be punishable by a fine in the amount of up to forty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three months, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by forced labor for a term of up to two years. , or imprisonment for the same period.
2. The same acts committed:
a) by a group of persons by prior conspiracy;
b) in relation to oil and its refined products, a car or other property on a large scale, -
c) has become invalid, -
shall be punishable by restriction of liberty for a term of up to three years, or forced labor for a term of up to five years, or arrest for a term of up to six months, or imprisonment for a term of up to five years with a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income convicted for a period of up to six months.
3. Acts provided for in parts one or two of this article, committed by an organized group or person using their official position, -
shall be punishable by forced labor for a term of up to five years, with or without restriction of liberty for a term of up to two years, or by imprisonment for a term of up to seven years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months, and with or without restriction of freedom for a term of up to two years.
Commentary on Article 175 of the Criminal Code of the Russian Federation
1. The object of the criminal attack is economic relations regarding the distribution of material goods.
2. The subject of the encroachment is property known to have been obtained by criminal means.
The concept of property here coincides with civil law; it traditionally includes securities, money, movable and immovable things.
The property must be obtained by criminal means, i.e. as a result of committing crimes: theft, extortion, taking a bribe, as well as commercial bribery, illegal obtaining of a loan, bribery of participants and organizers of professional sports competitions and spectacular commercial competitions, poaching, etc.
3. Guilty according to the comment. Article a person cannot participate in these crimes, he is an outsider in relation to it, enjoys its fruits.
4. The subject of the attack cannot be precious metals, natural precious stones, nuclear materials or radioactive substances, weapons or their main parts, ammunition, explosives and explosive devices, narcotic drugs, psychotropic substances or their analogues, potent or toxic substances. Their illegal acquisition is punishable accordingly under Art. 191, 220, 222, 228, 228.1, 234.
5. Pornographic materials or objects, as well as materials or objects with pornographic images of obviously minors, cannot be the subject of sale of property known to be obtained by criminal means. In this case, Art. 242 “Illegal distribution of pornographic materials or objects” or Art. 242.1, which provides for liability for the distribution of materials or items with pornographic images of obviously minors.
The acquisition of said property not promised in advance falls under the provisions of Art. 175.
6. The objective side of the crime consists of: a) the acquisition of the specified property that was not promised in advance and b) its sale that was not promised in advance.
7. The acquisition of property known to be obtained by criminal means includes paid and gratuitous methods of obtaining it: purchase, acceptance as a gift, in payment of a debt, as payment for services, exchange, etc.
8. The sale of property known to have been obtained by criminal means is understood as the alienation of property, which can also be compensated or gratuitous. Sales can be carried out in the form of sale of property, exchange, donation, payment of debt, rent, etc.
9. Both acquisition and distribution cannot be promised in advance; otherwise, liability under Art. 175 is excluded and the act is qualified as complicity in a specific crime.
10. The acquisition is completed from the moment of receipt of the property, the sale is completed from the moment of its alienation.
11. The subjective side presupposes the presence of direct intent.
The article specifically emphasizes that a person must be aware that the property was obtained by criminal means.
12. The subject of a criminal attack is a person endowed with the general characteristics of a subject, i.e. sane and over 16 years of age.
13. The criminal liability is increased if the act was committed by a group of persons by prior conspiracy (clause “a”, part 2) or in relation to oil, its products, a car or other property on a large scale (clause “b”, part 2).
13.1. The concept of large size is given in the note. to Art. 169; the value of the property must exceed 250 thousand rubles. Such property may include furniture sets, expensive jewelry, fur products, various computer equipment, individual musical instruments, antiques, etc.
14. Particularly qualifying criteria (Part 3 of the commentary article) are the commission of a crime by an organized group and a special subject - a person who committed a crime using his official position.
15. The crime has some similarities with the legalization (laundering) of funds or other property acquired by criminal means. However, there are fundamental differences between them: when acquiring or selling property known to be obtained by criminal means, the perpetrator does not seek to give its origin an official, legal character (which is mandatory for legalization provided for in Article 174) and the person himself did not participate in the commission of the primary crime (which mandatory for legalization provided for in Article 174.1).
In case of legalization of property or funds received as a result of committing a crime provided for in the comment. article, the UO comes under two articles: Art. 175 and art. 174 or 174.1. In addition, according to the clarification of the Armed Forces of the Russian Federation, the sale of property that was obtained as a result of the commission of a crime (for example, theft) by other persons does not form part of the legalization (laundering) of funds or other property (Article 174 of the Criminal Code), if such property is not attached appearance of lawfully acquired property. Depending on the specific circumstances of the case, these actions may contain elements of a crime providing for liability for theft (in the form of complicity) or a crime under Art. 175 of the Criminal Code of the Russian Federation (clause 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 23).
16. The acts provided for in Part 1 are classified as crimes of minor gravity, in Part 2 - of medium gravity, and in Part 3 - as serious criminal acts.
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Plenum of the Supreme Court of December 24, 2019 No. 58 “On judicial practice in cases of kidnapping, unlawful imprisonment and human trafficking”
TABLE OF CONTENTS
| KIDNAPPING — clause 2 Plenum No. 58 kidnapping: capture, movement, retention — clause 2 Plenum No. 58 kidnapping by deceiving the victim — clause 2 Plenum No. 58, the moment of completion of the composition: from the moment of capture of the victim Death threat — clause 5 Plenum No. 58, the threat of murder during abduction is covered Plenum No. 58 threat of murder during deprivation of liberty, this is combined with Plenum No. 58 violence or threat may be against relatives Group of persons — clause 7 Plenum No. 58 kidnapping of a person by a group of persons ( — clause 8 Plenum No. 58 responsibility of organizers and accomplices during abduction Selfish motives — clause 8 Plenum No. 58 kidnapping for mercenary motives ( Combined with arbitrariness ( 330 Criminal Code ) — clause 8 Plenum No. 58 comment: judicial practice (if there is a debt, there are no selfish motives) — clause 9 Plenum No. 58 extortion during kidnapping, combined with — clause 10 Plenum No. 58, when the seizure is for the purpose of murder, it is qualified under Plenum No. 58 murder during displacement, this is a combination of — clause 11 Plenum No. 58 what is meant by voluntary release ILLEGAL DEprivation of Liberty — clause 3 Plenum No. 58 the victim does not move, but is limited in movement — clause 3 Plenum No. 58, the moment of completion of the composition: from the moment of actual deprivation of liberty — clause 4 Plenum No. 58, deprivation of liberty and subsequent movement is qualified under — clause 5 Plenum No. 58 violence that is not life-threatening is covered by Plenum No. 58 violence or threat may be against relatives HUMAN TRAFFICKING — clause 12 Plenum No. 58, the purpose of exploitation is not always a mandatory feature — clause 12 Plenum No. 58, the consent of the victim does not affect qualifications Actions in cases of human trafficking — clause 13 Plenum No. 58 purchase and sale of a person — clause 13 Plenum No. 58 recruitment — clause 13 Plenum No. 58 transportation of persons — clause 13 Plenum No. 58 human transfer — clause 13 Plenum No. 58 concealment of a person — clause 14 Plenum No. 58, the moment of completion of the trafficking in persons — clause 15 Plenum No. 58 kidnapping for the purpose of trafficking forms a combination of Plenum No. 58, deprivation of liberty for the purpose of trafficking is qualified only under — clause 16 Plenum No. 58, the use of any type of violence and threats is qualified under — paragraph 17 Plenum No. 58 voluntary release of the victim |
1) Draw the attention of the courts to the fact that the public danger of crimes provided for in Article 126 of the Criminal Code
,
127 of the Criminal Code
,
127.1 of the Criminal Code
, consists of illegally limiting a person’s physical freedom, including freedom of movement and choice of location.
KIDNAPPING ( 126 CC
)
2) Within the meaning of criminal law, kidnapping should be understood as:
- his illegal seizure,
- movement,
- and subsequent retention
for the purpose of committing another crime or for other reasons that do not have significance for the qualification of the offense.
Capturing, moving and detaining a person can be carried out using threats, violence, and taking advantage of the helpless state of the victim.
Kidnapping can also be committed by deceiving the victim or abuse of trust in order to move him and subsequently capture and hold him.
Kidnapping is considered a completed crime from the moment of capture and the beginning of its movement.
In cases where the displacement was carried out by the victim himself as a result of his deception or abuse of trust, the crime is considered completed from the moment of capture of this person and the beginning of forced displacement or the beginning of his detention if the person no longer moved.
ILLEGAL DEprivation of Liberty ( 127 Criminal Code
)
3) Courts should keep in mind that, unlike kidnapping during unlawful deprivation of liberty, provided for in Article 127 of the Criminal Code
, the victim remains at his location, but is limited in movement without legal grounds (for example, the guilty person locks the victim in the house, apartment or other premises where he is located, ties him up or otherwise makes it impossible to leave any place).
The act provided for in Article 127 of the Criminal Code
, represents a completed crime from the moment of actual deprivation of a person’s freedom, regardless of the duration of the victim’s stay in such a state.
4) In the case where the guilty person, who initially illegally deprived a person of his freedom, subsequently moved the victim to another place, the act is qualified under the relevant part of Article 126 of the Criminal Code
without additional qualification under Article
127 of the Criminal Code
.
The actions of the guilty person, committed in the process of kidnapping a person and consisting in illegal restriction of the freedom of the victim when moving him and (or) detaining him in another place, are fully covered by the elements of the crime provided for in Article 126 of the Criminal Code
, and do not require additional qualifications under Article
127 of the Criminal Code
.
5) When making a legal assessment of an act, courts must proceed from the fact that the use of violence that is not dangerous to human life or health is covered by Part 1 126 of the Criminal Code
or
Part 1 127 of the Criminal Code
.
The threat of murder or infliction of grievous bodily harm when committing a kidnapping is covered by paragraph “c” of Part 2 of 126 of the Criminal Code
, while the statement or other expression of such a threat during unlawful deprivation of liberty should be classified as a set of crimes provided for in the relevant part of Article
127 of the Criminal Code
and Article
119 of the Criminal Code
.
6) Courts should keep in mind that when a person is kidnapped and unlawfully deprived of liberty, violence or the threat of its use can be carried out both in relation to the kidnapped person or person unlawfully deprived of liberty, and in relation to other persons, including close relatives, in order to removing obstacles to the capture, movement or retention of the victim.
7) In cases where, according to a preliminary agreement between accomplices on the kidnapping of a person, the perpetrator commits a separate action that is part of the objective side of this crime, he bears criminal liability as a co-perpetrator of a crime committed by a group of persons by prior conspiracy ( clause "a" part 2 126 UK
).
One action is enough
| Any action is enough for complicity In paragraph 7 Plenum No. 58 contains a position of the Supreme Court that is very dangerous for the accused. The bottom line: it is enough to take part in just one action that is part of the objective side of the abduction - and there will already be full-fledged complicity. That is, it is not necessary to carry out all the actions of kidnapping a person. One simple action is enough (for example: watch the victim and report his location or even call the elevator to help the kidnappers). Not complicity, but co-execution It is important that, due to this paragraph of the Plenum, it will not be possible to qualify the actions of the accused as complicity . Case No. 01-0346/2018 Example - even one action is enough to become an accomplice in kidnapping ( (In this criminal case, the defendant did not commit any actions other than driving services - he did not threaten, did not kidnap. But the very fact of these transport services to the kidnappers made him an accomplice in the kidnapping of a person (not in the status of an accomplice, but a full-fledged co-principal). This is based on the position Supreme Court from paragraph. Plenum No. 58, which states that even one action included in the objective side of kidnapping (in this case, the transportation of the kidnappers and the victim) makes the perpetrator a full-fledged accomplice Note : this |
Kidnapping is qualified under clause "z" part 2 126 of the Criminal Code
(for selfish reasons), if it is committed:
- in order to obtain material benefits for the perpetrator or other persons (money, property or rights to receive it, etc.)
— or getting rid of material costs (return of property, debt, payment for services, fulfillment of property obligations, payment of alimony, etc.),
- as well as for hire, conditional on the perpetrator of the crime receiving material remuneration or exemption from material costs.
Kidnapping to recover a debt
| IN clause 8 Plenum No. 58 explains what should be understood by selfish motives. An interesting feature follows from these explanations: if the culprit repaid the debt in this way, then there are no selfish motives. ILLUSTRATION Generalization of practice in criminal cases of the First Court of Cassation (Q3 2022) Determination No. 77-1578/2020. «As follows from the case materials and established by the court, the kidnapping of the victim was committed in order to obtain funds that the victim owes Arbitrariness + kidnapping That is, in such situations, the objective side of the crime is close to Part 2 330 of the Criminal Code , but qualifications are not limited to arbitrariness. |
Subject to liability under the relevant part of Article 33 of the Criminal Code
and
clause "z" part 2 126 of the Criminal Code
of the person:
- those who organized the kidnapping of a person, committed by the perpetrator for material reward,
- instigated its commission,
- or who assisted in the commission of such a crime.
9) If the kidnapping of a person is associated with a simultaneous demand for the transfer of someone else’s property or the right to property or the commission of other actions of a property nature, then, if there are grounds, the actions of the perpetrator are classified as a set of crimes provided for in paragraph “z” part 2 of 126 of the Criminal Code
and the corresponding part of Article
163 of the Criminal Code
.
Url Additional information:
- clause "c" part 2 105 of the Criminal Code
murder involving kidnapping
10) In cases where the capture and movement of a person was aimed not at keeping the victim in another place, but at killing him, the act is qualified under the relevant part of Article 105 of the Criminal Code
and does not require additional qualifications under Article
126 of the Criminal Code
.
If the intent to commit murder against an abducted person arises in the mind of the perpetrator during the movement or detention of the victim, the act must be qualified according to the totality of crimes provided for in Articles 126 of the Criminal Code
and
105 CC
.
Combination: kidnapping + murder
| IN clause 10 Plenum No. 58 provides instructions on how to correctly qualify in two different situations: a) the first paragraph refers to a situation where the intent to kill was initially : then the correct qualification will be under b) in the second paragraph of clause 10 Plenum No. 58 describes a situation where there will be ILLUSTRATION (clause 30 of the Review of Practice of the Supreme Court No. 4 (2021) Determination No. 82-UD21-12-A2) «As follows from the factual circumstances of the case, established by the court, the convicts committed an illegal seizure and movement of the victim in order to clarify relations with him in connection with an earlier conflict, and these actions were not initially aimed at killing the victim. They agreed to take the life of the victim after his kidnapping. Under such circumstances, the actions of the convicted form a set of crimes 126 and Art. 105 of the Criminal Code of the Russian Federation |
11) Based on the note
to Article 126 of the Criminal Code, such release of an abducted person should be recognized as voluntary, in which the guilty person realized that he had a real opportunity to hold the victim, but he released him, including handing him over to relatives, government officials, pointing out to them the location of the abducted person, from where he can be released.
Url Additional information:
- Part 3 31 of the Criminal Code
in case of voluntary refusal, punishment for what was actually done
Within the meaning of criminal law, the voluntary release of a kidnapped person does not free
the guilty person from criminal liability for other illegal actions, including for acts committed during the kidnapping of a person, if they contain elements of an independent crime (for example, intentional infliction of harm to health, illegal trafficking in weapons).
TRAFFICKING IN HUMAN BEINGS ( 127.1 CC
)
12) Trafficking in persons can be expressed in the commission of one or more specified in Part 1 127.1 of the Criminal Code
actions - purchase, sale or other transaction in relation to a person - regardless of the purpose of their implementation, as well as recruitment, transportation, transfer, harboring or receipt of a person for the purpose of his exploitation.
It should be taken into account that the purpose of exploiting a person is a mandatory element of a crime only for such actions as recruitment, transportation, transfer, harboring or receiving a victim. For the purchase and sale or making other transactions with a person, the purpose of his exploitation is not a mandatory element of the crime, although it can be pursued by the guilty person when committing these actions.
The victim’s awareness of the nature of the actions performed on him and his consent to their commission do not affect the qualification of these actions as human trafficking.
13) In article 127.1 of the Criminal Code
the purchase and sale of a person is understood as the commission of actions consisting of the transfer of a person by one person to another person (persons) for a monetary reward, and other transactions in relation to a person - other illegal actions leading to the transfer of the victim from one person to another person (for example, gratuitous transfer , exchange for any material assets).
Recruitment is the search, selection and hiring of persons to perform in the interests of the employer or other persons any work, provision of services or implementation of other activities, including on the territory of a foreign state, carried out for the purpose of further exploitation of the person being recruited. To obtain the consent of the victim, for example, promises of reward, blackmail, deception or abuse of trust (in particular, under the pretext of providing a job or training opportunity in a particular profession) can be used.
Transportation refers to the movement of a person by any type of transport from one place to another, including within the same locality, for further exploitation of the victim.
The transfer of a person consists of providing the victim to another person, including for transportation, concealment, and exploitation of the victim, and receiving is the acceptance of the victim from the person transferring him, in particular, for transportation or concealment, as well as for his exploitation.
Concealing a person consists of hiding the victim when committing actions related to human trafficking from authorities, relatives, interested parties, for example, by reporting knowingly false information about the identity or location of the victim.
14) Courts should determine the moment of completion of the crime provided for in Article 127.1 of the Criminal Code
, depending on the method of its implementation. When carrying out the purchase and sale of a person or other transactions in relation to the victim, the crime is classified as completed from the moment of the actual transfer and receipt of the victim, when recruiting a person - from the moment of obtaining the consent of the victim to carry out the activity for which he was recruited.
When committing other actions that constitute trafficking in persons, the act is qualified as a completed crime upon transfer or receipt of a person, or from the moment he begins to be transported or harbored for the purpose of exploitation.
15) In cases where the purchase and sale of a person or the commission of other actions related to trafficking in persons was preceded by the abduction of this person, the act constitutes a set of crimes provided for in the relevant parts of Article 126 of the Criminal Code
and Article
127.1 of the Criminal Code
.
The illegal deprivation of a person’s freedom for the purpose of carrying out actions related to human trafficking in relation to him, as well as the illegal restriction of the freedom of the victim in the process of committing these actions, are covered by the relevant part of Article 127.1 of the Criminal Code
and do not require additional qualifications under Article
127 of the Criminal Code
.
16) According to clause "e" part 2 127.1 of the Criminal Code
it is necessary to qualify actions related to trafficking in persons, committed with the use of violence, both representing and not representing a danger to the life or health of the victim, as well as with the threat of using such violence.
17) According to note 1
to Article 127.1 of the Criminal Code, a person who has committed a crime for the first time under
Part 1 127.1 of the Criminal Code
or
paragraph "a" Part 2 127.1 of the Criminal Code
of this article is exempt from criminal liability if he voluntarily released the victim (victims) and contributed to the disclosure of the crime committed with his participation, provided that his actions do not contain another crime.
At the same time, the voluntary release of the victim(s) does not relieve the guilty person from criminal liability for other illegal actions, including acts committed during human trafficking, if they contain elements of an independent crime.
18) Recommend that courts, when considering criminal cases of kidnapping, illegal imprisonment and human trafficking, identify the circumstances that contributed to the commission of these crimes, violation of the rights and freedoms of citizens, as well as other violations of the law committed during the preliminary investigation or when considering a criminal case by a lower court , and in accordance with Part 4 29 of the Code of Criminal Procedure
private definitions (decrees) to draw the attention of relevant organizations and officials to them.
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Another comment on Art. 175 of the Criminal Code of the Russian Federation
1. The subject of the crime is property known to be obtained by criminal means. The exceptions are: precious metals and natural precious stones, weapons, ammunition, explosive devices, explosives, nuclear materials or radioactive substances, drugs and other items withdrawn from free civilian circulation. The acquisition or sale of such items form signs of independent crimes qualified under Art. Art. 191, 220, 222, 228, 228.1, 234, 242 of the Criminal Code of the Russian Federation, respectively.
2. The objective side is expressed in the previously not promised acquisition or sale of property obtained by criminal means. If these actions were promised to a person who directly obtained property through a crime, before or during the commission of a crime or in another way (by systematically acquiring from this person property known to be obtained by criminal means), then such an act is qualified as aiding and abetting the crime that resulted in the crime. property.
The article in question does not provide for liability for non-promised storage of property known to have been obtained by criminal means. However, liability for this crime may still accrue to a member of an organized group, including one engaged in the acquisition or sale of property known to have been obtained by criminal means.
3. The acquisition or sale of property known to have been obtained by criminal means is qualified under Art. 174, and not under Art. 175 of the Criminal Code, if the intent of the perpetrator was aimed at giving legal appearance to funds or other property known to be acquired by criminal means.
