Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 15, 2007 N 45 “On judicial practice in criminal cases of hooliganism and other crimes committed out of hooligan motives”

Commentary on Article 168 of the Criminal Code of the Russian Federation

1. In general, about the characteristics of the objective side, see the commentary to Art. 167 of the Criminal Code. In the crime in question, the act often involves a violation of special or generally accepted rules of precaution.

2. Sources of increased danger include: vehicles, machinery, high voltage electrical energy, nuclear energy, explosives, potent poisons, etc.; carrying out construction and other related activities, etc.

Careless handling of fire or other sources of increased danger may include improper handling of ignition sources near flammable materials, operation of technical devices with unrepaired defects (for example, leaving unattended stoves, fires, or unturned electrical appliances, gas burners).

3. A mandatory feature is the large amount of destruction or damage to property, which must be determined in accordance with the note to Art. 158 of the Criminal Code.

4. A crime occurs only if property is destroyed by careless handling of fire or other source of increased danger. If the damage occurs not from careless handling of fire or a source of increased danger, but from other reasons, liability under this article is excluded.

5. When a person dies, the actions of the perpetrator are qualified under a set of articles providing for liability for causing death by negligence (Article 109 of the Criminal Code) and destruction or damage to property by negligence (Article 168).

6. The subjective side of the crime is characterized by negligence.

7. The subject of the crime is a person who has reached the age of 16 years.

The plenum of the Armed Forces took up arms

The plenum of the Supreme Court of the Russian Federation on May 16 made changes to several of its decisions on criminal cases. The draft document was presented at the plenary session by Supreme Court Judge Sergei Zelenin.

The amendments affected the resolution of the Plenum of the Supreme Court of December 27, 2002 “On judicial practice in cases of theft, robbery and robbery.” Zelenin noted that changes had already been made to this document earlier. At the same time, according to him, there is now a need to supplement the text with new provisions and correct previously given clarifications. This is due to the spread of crimes such as theft of other people's property. The Supreme Court judge said that last year property crimes had a “significant weight”, accounting for about 40% of the total number of criminal cases. The number of those convicted under Art. 158 of the Criminal Code of the Russian Federation for theft decreased slightly in 2016, but these crimes still make up a quarter of the total, and together with robbery - 30%

The Supreme Court draws the attention of the courts to the fact that the factual circumstances that served as the basis for imposing an administrative penalty under Part 2 of Art. 7.27 of the Code of Administrative Offenses of the Russian Federation, do not in themselves predetermine the court’s conclusions about a person’s guilt in committing a crime under Art. 158.1 of the Criminal Code of the Russian Federation. Such guilt is established by the court in the procedures provided for by the criminal procedural law on the basis of the entire body of evidence, including those not examined during the consideration of the case of an administrative offense.

In addition, according to Zelenin, judicial practice shows that illegal entry into a home is often associated with the destruction of obstacles: doors, locks, windows; with destruction or damage to other property of the victim, including expensive furniture and household appliances. Although this property is not the subject of theft, the damage may sometimes not be inferior to the damage from theft.

In this regard, paragraph 20 of the plenum resolution was adjusted. The new edition explains that in the case when a person, committing theft, robbery or robbery with illegal entry into a home, premises or other storage facility, deliberately destroyed and damaged doors, locks, etc., as well as other property of the victim who was not present the subject of theft (for example, furniture, household appliances and other things), committed in the event of causing significant damage should be additionally qualified under Art. 167 of the Criminal Code of the Russian Federation.

Clause 23 clarifies the explanation regarding robbery committed with the use of weapons or objects used as weapons. Such items include any material objects that could cause death or harm to the victim’s health (a penknife or kitchen knife, an ax, etc.), as well as other items, the use of which created a real danger to the life or health of the victim, for example, mechanical sprayers, aerosols and other devices containing irritating substances. In cases where the attacker threatens with an object simulating a weapon, for example, a dummy pistol, a toy weapon, etc., without intending to use these objects to cause harm dangerous to life and health, his actions, depending on the subjective perception of the victim , should be qualified as robbery (Part 1 of Article 162 of the Criminal Code of the Russian Federation), and if the victim understood that he was being threatened with a fake weapon, the act is qualified as robbery.

Changes were also made to the resolution of the Plenum of the Supreme Court dated June 29, 2010 “On the practice of application by courts of norms regulating the participation of victims in criminal proceedings.” In particular, it is clarified that a person can be recognized as a victim either at the request or at the initiative of the body in charge of the criminal case. The decision to recognize a person as a victim is made immediately from the moment the criminal case is initiated. Refusal to recognize a person, as well as the inaction of the inquirer, investigator, head of the investigative body, resulting in non-recognition of the person as a victim, may be appealed by this person in pre-trial proceedings.

Zelenin also noted that in the event of the death of a person, the rights of the victim pass to one of the close relatives or close persons (clause 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation) and (or) close persons (clause 3 of Article 5 of the Code of Criminal Procedure of the Russian Federation). In this case, the resolution or ruling must contain information confirming that the specified person is close to the deceased. It is especially noted that the rights of victims cannot be transferred to employees of social protection bodies or representatives of municipal administrations.

Finally, the adjustments affected the resolution of the Plenum of the Supreme Court of March 5, 2004 “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation.” Paragraph two of paragraph 13 of the new edition explains that the list of evidence confirming the accusation, as well as the list of evidence referred to by the defense, includes not only a reference to the sources of evidence in the indictment, indictment or indictment, but also a summary of the evidence, since by virtue of Part 1 of Art. 74 of the Code of Criminal Procedure of the Russian Federation, evidence in a criminal case is any information on the basis of which the court, prosecutor, investigator, investigator, in the manner prescribed by the Code of Criminal Procedure, establishes the presence or absence of circumstances that are subject to proof in criminal proceedings.

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