The issue of legal regulation and the distinction between vehicle theft and theft has received a lot of attention from both legal theorists and law enforcers.
The Supreme Court of the Russian Federation expressed its legal position on this issue in the Resolution of the Plenum of December 19, 2008 No. 25. The issue of decriminalization of Art. 166 of the Criminal Code of the Russian Federation, which provides for liability for theft, the last time - in 2022. But the bill did not receive a positive opinion from the Legal Department of the State Duma of the Russian Federation.
Let us consider in detail the legal aspects of qualifying an act under Art. 166 of the Criminal Code of the Russian Federation.
Act under Art. 166 of the Criminal Code of the Russian Federation
Article 166 of the Criminal Code of the Russian Federation provides for criminal liability for the unlawful taking of a car or other vehicle without the purpose of theft (theft). We believe that at present this article does not cope with the main tasks and principles of criminal law regulation for the following reasons.
The current version of the article does not allow a clear distinction between theft and theft, especially qualified and especially qualified elements of these crimes. For example, big problems in practice arise when distinguishing theft with the use of violence, both non-dangerous and dangerous to life or health, or with the threat of their use, from robbery and assault, respectively. In particular, robbery is considered a completed act from the moment of such an attack. The theft remains unclear at this point.
The definition of the concept of “wrongful seizure of a vehicle” was given by the Supreme Court of the Russian Federation in the above-mentioned Resolution of the Plenum; this is the seizure of someone else’s car and driving it without any selfish purpose.
It would seem that everything is simple; the main difference between theft and theft of a car is the absence of a selfish motive.
However, it should be noted that the concept of “wrongful taking” itself is quite broad, and can be part of the objective side of both “hijacking” and theft of a vehicle. Hence, in practice, problems arise in distinguishing theft from theft.
The theft itself is considered completed when the person has the opportunity to dispose of the stolen property at his own discretion. But when a car is stolen, exactly the same thing happens: a person steals a car and, being undetected by law enforcement officers for a long time, essentially has the opportunity to dispose of it at his own discretion, even if he does not do so. For theft, it also does not matter whether the person disposed of the car or not, the main thing is that he received such an opportunity.
Resolution of the Supreme Court of the Russian Federation dated July 22, 2019 N 11-AD19-17
SUPREME COURT OF THE RUSSIAN FEDERATION
RESOLUTION
dated July 22, 2022 N 11-AD19-17
Judge of the Supreme Court of the Russian Federation S.B. Nikiforov, having considered the complaint of Sibgatullin Radik Talgatovich against the decision of the acting magistrate judge of judicial district No. 2 for the Privolzhsky judicial district of the city of Kazan of the Republic of Tatarstan dated December 14, 2022, the decision of the judge of the Privolzhsky District Court, which entered into legal force Kazan, Republic of Tatarstan dated February 5, 2022 and the resolution of the Deputy Chairman of the Supreme Court of the Republic of Tatarstan dated March 14, 2022, issued against Sibgatullin Radik Talgatovich (hereinafter referred to as Sibgatullin R.T.) in the case of an administrative offense provided for in part 1 of article 12.26 Code of the Russian Federation on Administrative Offences,
installed:
by the decision of the acting magistrate of judicial district No. 2 for the Privolzhsky judicial district of the city of Kazan of the Republic of Tatarstan dated December 14, 2022, left unchanged by the decision of the judge of the Privolzhsky district court of the city of Kazan of the Republic of Tatarstan dated February 5, 2022 and the decision of the deputy chairman of the Supreme Court of the Republic of Tatarstan dated March 14, 2019, Sibgatullin R.T. found guilty of committing an administrative offense under Part 1 of Article 12.26 of the Code of Administrative Offenses of the Russian Federation, and was subjected to administrative punishment in the form of an administrative fine in the amount of 30,000 rubles with deprivation of the right to drive vehicles for a period of 1 year 6 months.
In a complaint filed with the Supreme Court of the Russian Federation, Sibgatullin R.T. asks to cancel the judicial acts issued in the case, citing arguments about their illegality, and to terminate the proceedings.
Studying the materials of the administrative offense case and the arguments of the applicant’s complaint allows us to come to the following conclusions.
In accordance with Part 1 of Article 12.26 of the Code of the Russian Federation on Administrative Offenses (all norms cited in this resolution are given in the wording in force at the time of the occurrence of the circumstances that served as the basis for bringing R.T. Sibgatullin to administrative liability), failure by the driver of a vehicle to comply with a legal demands of an authorized official to undergo a medical examination for intoxication, if such actions (inaction) do not contain a criminal offense, shall entail the imposition of an administrative fine in the amount of thirty thousand rubles with deprivation of the right to drive vehicles for a period of one and a half to two years.
According to paragraph 2.3.2 of the Traffic Rules of the Russian Federation, approved by Resolution of the Council of Ministers - Government of the Russian Federation of October 23, 1993 N 1090 (hereinafter referred to as the Traffic Rules), the driver of a vehicle is obliged, at the request of officials authorized to carry out federal state supervision in field of road safety, undergo an alcohol intoxication test and a medical intoxication test.
The basis for attracting Sibgatullin R.T. the justice of the peace to liability on the basis of Part 1 of Article 12.26 of the Code of the Russian Federation on Administrative Offenses was based on the conclusion that on August 10, 2022 at 23:45 in the area of house 13 on Tekhnicheskaya Street in the city of Kazan he was driving a mini-motorcycle (pit bike) “DIRT BIKE 125CC”, without a state registration plate, with signs of intoxication, in violation of the requirements of paragraph 2.3.2 of the Traffic Rules, did not comply with the legal requirement of an authorized official to undergo a medical examination for intoxication.
According to paragraph 10 of the Rules for examining a person who drives a vehicle for alcohol intoxication and recording its results, sending the said person for a medical examination for intoxication, medical examination of this person for intoxication and recording its results, approved by Decree of the Government of the Russian Federation dated 26 June 2008 N 475 (hereinafter referred to as the Rules), the driver of a vehicle is subject to a referral for a medical examination for intoxication: if he refuses to undergo an examination for alcohol intoxication; in case of disagreement with the results of the examination for alcohol intoxication; if there are sufficient grounds to believe that the driver of the vehicle is intoxicated, and the test result for alcohol intoxication is negative.
Due to the presence of signs of intoxication (smell of alcohol on the breath, unsteady posture, behavior inappropriate for the situation) and refusal to undergo an examination for alcohol intoxication by a traffic police official in the manner prescribed by the Rules, Sibgatullin R.T. was asked to undergo a medical examination for intoxication.
However, the named person refused to undergo it, which was recorded by the police officer in the protocol on the referral for a medical examination dated August 10, 2022 and was not disputed by Sibgatullin R.T. in this complaint.
The fact that Sibgatullin R.T. an administrative offense provided for in Part 1 of Article 12.26 of the Code of the Russian Federation on Administrative Offences, is confirmed by: a protocol on an administrative offense (case file 4), a certificate of examination for alcohol intoxication (case sheet 5), a protocol on suspension from driving a vehicle (case file 6), a protocol on referral for a medical examination for intoxication (case file 7), a protocol on the detention of a vehicle (case file 8), explanations of witnesses (case file 9, 10), reports of police officers (case files 11, 12), video recordings (case file 44), as well as other case materials, which were assessed for admissibility, reliability, sufficiency in accordance with the requirements of Article 26.11 of the Code of the Russian Federation on Administrative offenses.
During the consideration of this case of an administrative offense in accordance with the requirements of Article 24.1 of the Code of the Russian Federation on Administrative Offenses, the circumstances of the administrative offense committed were comprehensively, completely, objectively and timely clarified. Thus, by virtue of the requirements of Article 26.1 of the Code of the Russian Federation on Administrative Offences, the following has been established: the presence of an administrative offense event, a driver who has not complied with the legal requirement of an authorized official to undergo a medical examination for intoxication, the guilt of the specified driver in committing an administrative offense, other circumstances of significance for the correct resolution of the case, as well as the reasons and conditions for committing an administrative offense.
The applicant’s arguments that the company controlled by Sibgatullin R.T. the vehicle is sports equipment, as a result of which it is not a vehicle, are essentially similar to the arguments that were the subject of verification by previous courts and were reasonably rejected for the reasons given in the relevant judicial acts.
According to the note to Article 12.1 of the Code of the Russian Federation on Administrative Offenses, a vehicle in the said article should be understood as a motor vehicle with a displacement of an internal combustion engine of more than 50 cubic centimeters or a maximum electric motor power of more than 4 kilowatts and a maximum design speed of more than 50 kilometers per hour, as well as trailers for it, subject to state registration, and in other articles of Chapter 12 of the said Code also tractors, self-propelled road construction and other self-propelled machines, vehicles for which a special right is granted in accordance with the legislation of the Russian Federation on road safety.
Within the meaning of the above note, the presence of such vehicle characteristics as a working volume of an internal combustion engine of more than 50 cubic centimeters or a maximum electric motor power of more than 4 kilowatts and a maximum design speed of more than 50 kilometers per hour applies only to the application of Article 12.1 of the Code of the Russian Federation on Administrative Offences.
For the purpose of applying other articles of Chapter 12 of the Code of the Russian Federation on Administrative Offences, vehicles also mean other vehicles for which a special right is granted in accordance with the legislation of the Russian Federation on road safety.
In accordance with paragraph 1.2 of the Road Traffic Rules, a vehicle is a device intended for transporting people, goods or equipment installed on it along the roads.
A motor vehicle is a vehicle driven by an engine. The term also applies to any tractors and self-propelled machines.
“Motorcycle” is a two-wheeled motor vehicle with or without a side trailer, the engine displacement of which (in the case of an internal combustion engine) exceeds 50 cc. cm or the maximum design speed (with any engine) exceeds 50 km/h. Motorcycles are considered tricycles, as well as quadricycles with a motorcycle seat or motorcycle-type handlebars, having an unloaded weight not exceeding 400 kg (550 kg for vehicles intended for the transport of goods), excluding the weight of batteries (in the case of electric vehicles), and the maximum effective engine power not exceeding 15 kW.
The categories established in the Russian Federation and the subcategories of vehicles included in them, for which a special right to drive is granted, are listed in paragraph 1 of Article 25 of the Federal Law of December 10, 1995 N 196-FZ “On Road Traffic Safety” (hereinafter referred to as the Federal Law of 10 December 1995 N 196-FZ).
In accordance with this standard, motorcycles belong to category “A”; a special right is granted to drive such vehicles.
Subcategory “A1” - motorcycles with an internal combustion engine displacement not exceeding 125 cubic centimeters and a maximum power not exceeding 11 kilowatts.
The case materials established that Sibgatullin R.T. under the circumstances described above, drove a vehicle with a 125 cc engine. cm and a maximum design speed of 60 kilometers per hour, which in its characteristics refers to motorcycles, the right to drive which must be confirmed by a driver’s license (clause 4 of Article 25 of the Federal Law of December 10, 1995 N 196-FZ), and in accordance with the note to Article 12.1 of the Code of the Russian Federation on Administrative Offenses is a vehicle that is subject to Chapter 12 of the said Code.
Taking into account the above, Sibgatullin R.T. was rightfully found guilty of committing an administrative offense under Part 1 of Article 12.26 of the Code of the Russian Federation on Administrative Offenses.
The fact that, according to the manufacturer’s information, the “DIRT BIKE 125CC” cross-country motorcycle is used mainly for sports and active recreation does not indicate that it is intended exclusively for participation in sports competitions and was not used by Sibgatullin at the time relating to the administrative offense event R.T. for traveling on the road.
Administrative punishment was imposed on R.T. Sibgatullin. taking into account the provisions of Articles 4.1, 4.2, 3.1, 3.5, 3.8 of the Code of the Russian Federation on Administrative Offenses within the sanction of Part 1 of Article 12.26 of this Code.
The decision to bring the named person to administrative responsibility was made in compliance with the statute of limitations for bringing to administrative responsibility established by Part 1 of Article 4.5 of the Code of the Russian Federation on Administrative Offenses for this category of cases.
Law Sibgatullina R.T. for the defense during the proceedings of the case was not violated and was implemented.
Circumstances that, by virtue of paragraphs 2 - 4 of part 2 of Article 30.17 of the Code of the Russian Federation on Administrative Offenses, could lead to a change or unconditional cancellation of the appealed judicial acts were not established during the consideration of this complaint.
Based on the above, guided by Articles 30.13 and 30.17 of the Code of the Russian Federation on Administrative Offences, the judge of the Supreme Court of the Russian Federation
decided:
resolution of the acting magistrate of judicial district No. 2 for the Privolzhsky judicial district of Kazan, Republic of Tatarstan dated December 14, 2022, decision of the judge of the Privolzhsky district court of Kazan, Republic of Tatarstan dated February 5, 2019 and resolution of the deputy chairman of the Supreme Court of the Republic of Tatarstan dated March 14 2022, issued against Sibgatullin Radik Talgatovich in the case of an administrative offense provided for in Part 1 of Article 12.26 of the Code of the Russian Federation on Administrative Offenses, shall be left unchanged, the complaint of Sibgatullin Radik Talgatovich - without satisfaction.
Supreme Court Judge
Russian Federation
S.B.NIKIFOROV
Judicial law on road accidents and art. 264 of the Criminal Code of the Russian Federation
Our judicial practice in cases of road accidents, under Art. 264 CC.
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Termination of criminal prosecution under Art. 264 CC.
A client who was suspected of a fatal hit-and-run contacted the Bar's lawyer; a criminal case was initiated under Part 4 of Article 264 of the Criminal Code. The case was notable for the need to conduct a complex automotive technical examination.
As a result of the lawyer’s correctly posed questions for the examination, the results of the conclusion showed that the client could not avoid colliding with a pedestrian.
As a result, the preliminary investigation authorities issued a decision to terminate the criminal case.
Resolution
Termination of the case under Art. 12.27 Code of Administrative Offenses - leaving the scene of an accident
A client contacted a lawyer who had collided with another vehicle and fled the scene of the accident. The case was heard in the magistrate's court, which ruled that the person was guilty and was deprived of his driving license.
After challenging the magistrate’s ruling in the district court, the lawyer managed to overturn the magistrate’s court ruling and return the driver’s license; the case was dismissed with a reprimand issued to the culprit.
A court decision to cancel a court order.
Dispute over non-payment of insurance compensation under compulsory motor liability insurance.
A client approached an accident lawyer with a question about the incorrect execution of an accident report and non-payment of insurance compensation under the compulsory motor liability insurance policy.
As a result of the correctly chosen position of the lawyer in an accident, the protocol was challenged and reliable information was included in it. Based on an independent examination, the lawyer formulated a demand for payment of insurance payments to the principal. The court made a decision by which it collected the full amount from the insurance amount to restore the damaged car.
Dispute over underpayment of insurance compensation under the MTPL policy.
The client contacted a lawyer because, after an accident, she contacted the insurance company with which she had entered into a compulsory motor liability insurance agreement, but was refused, citing the fact that she needed to contact the insurance company with which the culprit had entered into a compulsory motor liability insurance contract.
It was decided to go to court.
After a lengthy trial and qualified legal assistance provided by the lawyer, the court satisfied the claims in full.
As a result of the consideration of the case, the underpaid insurance indemnity in full, the penalty in full, a partial fine and partially legal expenses were recovered from the insurance company in favor of the principal.
DECISION in the case
Legal assistance in cases of road accidents and under Art. 264 of the Criminal Code of the Russian Federation.
Road accident lawyer, defense under Article 264 of the Criminal Code of the Russian Federation. Read more…
Russian logistics
The courts should be drawn to the fact that criminal liability for a crime provided for in Article 264 of the Criminal Code of the Russian Federation can only occur if the consequences specified in this article occur, and if these consequences are in a causal connection with the person’s violations of traffic rules or operation of vehicles. 2. The subject of the crime provided for in Article 264 of the Criminal Code of the Russian Federation is a person who has reached the age of 16 and has driven a car, tram or other mechanical vehicle intended for transporting people, cargo or equipment installed on it on roads (clause 1.2 of the Russian Road Traffic Regulations). Federation, hereinafter referred to as the Rules). They are recognized not only as a driver who has passed the exam for the right to drive the specified type of vehicle and received the appropriate certificate, but also any other person who has driven the vehicle, including a person from whom the specified document was confiscated in accordance with the procedure established by law for a previous violation of paragraphs Rules, a person who does not have or has been deprived of the right to drive the relevant type of vehicle, as well as a person teaching driving on a training vehicle with dual controls.
By virtue of paragraph 1.2 of the Rules, motor vehicles do not include mopeds and other vehicles driven by an engine with a displacement of no more than 50 cubic centimeters and having a maximum design speed of no more than 50 kilometers per hour, as well as bicycles with a suspended engine, mokikis and other vehicles with similar characteristics. Persons who drove these vehicles and committed a violation of traffic safety rules or the operation of vehicles, which through negligence resulted in the infliction of serious harm to health or the death of a person, if there are grounds for this, are liable, respectively, under parts 1, 2 or 3 of Article 268 of the Criminal Code of the Russian Federation.
3. When considering cases of crimes provided for in Article 264 of the Criminal Code of the Russian Federation, courts should indicate in the verdict which specific paragraphs of the Traffic Rules or the rules for operating a vehicle were violated that resulted in the consequences specified in Article 264 of the Criminal Code of the Russian Federation, and what exactly this violation was expressed in .
If the indictment (indictment) includes individual paragraphs of the above rules, violations of the provisions of which do not correspond to the factual circumstances of the case established at the court hearing, the court, based on the provisions of Article 237 of the Code of Criminal Procedure of the Russian Federation, at the request of a party or on its own initiative, has the right to return the criminal case to the prosecutor for bringing charges indicating specific points of the rules, the violation of which entailed the consequences specified in Article 264 of the Criminal Code of the Russian Federation, if this is not related to making up for the incompleteness of the inquiry or preliminary investigation and does not worsen the situation of the defendant.
4. Actions of the driver of a vehicle that entailed the consequences specified in Article 264 of the Criminal Code of the Russian Federation not as a result of violation of the Traffic Rules or operation of vehicles, but during loading or unloading, repair of vehicles, construction, road, agricultural and other work, as well as as a result of driving a vehicle off the road, must be classified depending on the consequences and the form of guilt under the relevant articles of the Criminal Code of the Russian Federation, providing for liability for crimes against the person or for violating the rules during the performance of work.
5. Draw the attention of the courts to the fact that when investigating the causes of the emergency situation, it is necessary to establish which points of the Rules of the Road or the operation of vehicles were violated and which violations are causally related to the resulting consequences provided for in Article 264 of the Criminal Code of the Russian Federation.
In cases where violations of traffic rules were committed by two or more road users, what they did entails criminal liability under Article 264 of the Criminal Code of the Russian Federation, if their actions in driving a vehicle were in a causal relationship with the consequences specified in the said article of the Criminal Code Russian Federation.
6. When deciding whether the driver is guilty or not guilty of committing a traffic accident due to exceeding the speed of the vehicle, one should proceed from the requirements of paragraph 10.1 of the Rules, according to which the driver must drive it at a speed not exceeding the established limit, taking into account the intensity movement, features and condition of the vehicle and cargo, road and meteorological conditions, in particular visibility in the direction of travel.
Based on this, if a traffic hazard arises that the driver is able to detect, he must take measures to reduce the speed until the vehicle stops. Criminal liability under Article 264 of the Criminal Code of the Russian Federation occurs if the driver had the technical ability to avoid a traffic accident and a causal relationship has been established between his actions and the resulting consequences.
7. When deciding on the technical feasibility of preventing a traffic accident, courts should proceed from the fact that the moment a danger to traffic arises is determined in each specific case, taking into account the road situation preceding the traffic accident. A traffic hazard should be considered to have arisen at the moment when the driver had an objective opportunity to detect it.
When analyzing evidence of the presence or absence of the driver’s technical ability to prevent a traffic accident in conditions of darkness or insufficient visibility, it should be assumed that the driver, in accordance with paragraph 10.1 of the Rules, must choose a speed that provides him with the ability to constantly control the movement of the vehicle to comply with the requirements of the Rules.
8. Courts should keep in mind that the competence of a forensic automotive technical examination includes resolving only special technical issues related to a road traffic accident. Therefore, when ordering an examination, courts do not have the right to pose legal questions to the experts, the solution of which falls solely within the competence of the court (for example, about the degree of guilt of a road user). When analyzing and evaluating the conclusions of automotive technical examinations, courts should also proceed from the fact that the object of expert research may be circumstances related to the actual actions of the driver of the vehicle and other road users.
9. In cases where two or more people were injured as a result of a traffic accident, the actions of the person who violated the traffic rules while driving a vehicle are subject to qualification under that part of Article 264 of the Criminal Code of the Russian Federation, which provides for stricter liability for acts caused by negligence grave consequences, since in accordance with Part 2 of Article 17 of the Criminal Code of the Russian Federation, only those actions (inactions) in relation to which the signs of crimes are provided for by two or more articles of the Criminal Code of the Russian Federation are recognized as a set of crimes.
If, due to a violation of traffic rules or the operation of a vehicle due to negligence, serious harm to the health of several persons was simultaneously caused, the guilty person bears criminal liability under Part 1 of Article 264 of the Criminal Code of the Russian Federation.
10. If the court, on the basis of the examined evidence, establishes that the consequences specified in Article 264 of the Criminal Code of the Russian Federation occurred not only as a result of a violation by the person driving the vehicle of traffic rules or operation of vehicles, but also due to the victim’s failure to comply with specific points of the rules (non-use by a passenger when traveling seat belts, riding a motorcycle without a helmet, etc.), these circumstances may be taken into account by the court as mitigating punishment, except in cases where the driver has not fulfilled his duties to ensure the safety of passengers (clause 2.1.2 of the Rules).
11. Draw the attention of the courts that when imposing a punishment on a person who has committed a crime under Article 264 of the Criminal Code of the Russian Federation while under the influence of alcohol or drugs, by virtue of Part 3 of Article 60 of the Criminal Code of the Russian Federation, this circumstance should be taken into account as a negative characterization of the personality of this person who deliberately committed a violation of paragraph 2.7 Rules that increase the degree of public danger of what he has done.
12. Due to the fact that Article 264 of the Criminal Code of the Russian Federation, along with the main punishment, provides for the possibility of applying to the perpetrator an additional punishment in the form of deprivation of the right to drive a vehicle, the court should keep in mind that, based on Article 47 of the Criminal Code of the Russian Federation, this additional punishment may be assigned both to a person who was issued an appropriate certificate in accordance with the procedure established by law, and to a person who drove a car or other vehicle without the appropriate permit.
When imposing an additional punishment on the culprit in the form of deprivation of the right to drive a vehicle, the court must inform the relevant traffic police department in the constituent entity of the Russian Federation about this. The license on file for the right to drive vehicles should be sent to this unit for the execution of the court verdict.
13. When considering cases on the application of compulsory measures of a medical nature in relation to persons who have committed an act provided for in Article 264 of the Criminal Code of the Russian Federation, and by virtue of Articles 21 or 81 of the Criminal Code of the Russian Federation, exempted from criminal liability or punishment with the use of compulsory measures of a medical nature, the courts must inform the authorities , authorized to resolve issues of deprivation of a special right, to take measures to terminate the right of these persons to drive vehicles, as well as confiscate the relevant certificates.
14. Recommend to the courts when establishing the circumstances that contributed to the commission of crimes, liability for which is provided for in Article 264 of the Criminal Code of the Russian Federation (inconsistency of the condition of roads, bridges, railway crossings, etc. with construction rules, norms, standards and other regulatory documents; use of faulty vehicles, who have passed state technical inspection, etc.), by issuing private rulings (decisions), draw the attention of relevant organizations and officials to the circumstances and facts of violation of the law, requiring the necessary measures to be taken to eliminate them. In these cases, the court should also decide on the possibility of taking into account such circumstances as mitigating punishment (Article 61 of the Criminal Code of the Russian Federation).
15. In cases where the person driving the vehicle intentionally used it to cause harm to the health of the victim, the act entails criminal liability under the articles of the Special Part of the Criminal Code of the Russian Federation on crimes against the person.
16. Explain to the courts that the termination of a criminal case for a crime under Article 264 of the Criminal Code of the Russian Federation, subject to reconciliation of the parties (Article 25 of the Criminal Procedure Code of the Russian Federation) is a right, and not an obligation of the court. When making a decision to terminate a criminal case in connection with the reconciliation of the person who committed the crime with the victim, the court must comprehensively examine the nature and degree of public danger of the crime, information about the identity of the defendant, other circumstances of the case (whether the person was recognized as a victim, his financial situation, whether whether there was pressure on the victim for the purpose of reconciliation, what actions were taken by the perpetrator in order to make amends for the harm caused by the crime, etc.). When making a decision, one should assess whether it corresponds to the goals and objectives of protecting the rights and legitimate interests of the individual, society and the state.
In this regard, it is also necessary to establish whether the grounds provided for in Article 76 of the Criminal Code of the Russian Federation have been met, according to which a person who has committed a crime of minor or medium gravity for the first time can be released from criminal liability if he has reconciled with the victim and made amends for the harm caused to him.
17. To draw the attention of the courts that when considering cases of poor-quality repair of vehicles and their release into operation with technical defects, it is necessary to establish a causal connection between the poor-quality repair of individual systems, components of the vehicle, as well as violation of the technological process during their installation or replacement and its release into operation and the ensuing consequences specified in Article 266 of the Criminal Code of the Russian Federation.
Poor quality repair of a vehicle should be understood as the failure to eliminate all faults in accordance with technological rules and regulations or the installation of substandard or non-standard spare parts (for example, components and parts that ensure the safe operation of the vehicle).
In this regard, it is necessary to find out which specific rules and regulations were violated that resulted in the consequences specified in Article 266 of the Criminal Code of the Russian Federation. To establish such violations and facts of the use of substandard parts and assemblies during repairs, it is necessary, if there are grounds for this, to appoint an automotive technical examination.
The release into service (actions or inaction) of technically faulty vehicles should be understood as the failure to fulfill official duties by the person responsible for the technical condition of a vehicle put into service with technical faults. Such persons may include employees of state, public or commercial organizations who are held responsible for the technical condition of vehicles by instructions, rules or relevant orders, or by virtue of their official or official position.
The crime provided for in Article 266 of the Criminal Code of the Russian Federation is completed from the moment the consequences occur in the form of causing, through negligence, grievous harm to a person’s health or his death.
18. The subjects of the crime provided for in Article 266 of the Criminal Code of the Russian Federation can be both employees of motor transport organizations, regardless of organizational and legal forms and forms of ownership, carrying out the transportation of passengers and goods by road and urban electric transport, and employees of other organizations for which current instructions or rules , by relevant order or by virtue of their official position, responsibility for the technical condition or operation of vehicles has been assigned, as well as owner-entrepreneurs or employees of auto repair shops with a license to carry out business activities who have made poor-quality repairs that, through negligence, resulted in the infliction of serious harm to human health or his death.
19. Explain that the actions of the driver of a vehicle who placed the victim as a result of a traffic accident in a condition dangerous to life or health and, in violation of the requirements of the Rules (clause 2.5), did not provide him with the necessary assistance, if he had the opportunity to do so, are subject to qualification according to Article 125 of the Criminal Code of the Russian Federation.
Knowingly leaving without help a person in a condition dangerous to life or health should be understood as cases where the driver of the vehicle was aware of the danger to the life or health of the victim, who was deprived of the opportunity to independently seek medical help due to his infancy, old age, illness or helpless condition. (for example, in cases where the driver fled the scene of the accident, did not call an ambulance, did not deliver the victim to the nearest medical facility, etc.).
20. When deciding whether a person is guilty of committing a crime under Article 166 of the Criminal Code of the Russian Federation, courts should keep in mind that unlawful taking of a vehicle without the purpose of theft (Article 166 of the Criminal Code of the Russian Federation) means taking possession of someone else’s car or other vehicle (theft) and ride on it without the intention of appropriating it in whole or in parts.
Wrongful seizure of a vehicle without the purpose of theft is a completed crime from the moment of departure or movement of the vehicle from the place where it was located.
The actions of a person who tried to break the locks and security alarm systems, start the engine, or start driving for the purpose of theft should be considered as an attempted theft of a vehicle without the intent of theft, if the actions of this person were stopped or due to other circumstances beyond his control he was unable to realize his criminal intent to use a vehicle for personal interests without the purpose of theft.
21. Other vehicles, theft of which without the intent of theft is subject to criminal liability under Article 166 of the Criminal Code of the Russian Federation, should be understood as mechanical vehicles (trolleybuses, tractors, motorcycles, other self-propelled vehicles with an internal combustion engine or an electric motor, boats, motor boats) . Mopeds, bicycles, rowing boats, horse-drawn vehicles, etc. are not the subject of this crime.
22. If a person who has committed the theft of a vehicle without the purpose of theft, along with this, steals the property located in it, the act is subject to qualification under Article 166 and the relevant articles of the Criminal Code of the Russian Federation, providing for liability for theft.
Taking possession of a vehicle for the purpose of subsequent dismantling and appropriation of its parts or using the vehicle for one’s own benefit or for the benefit of other persons is subject to classification as theft.
23. Explain that violence that is not dangerous to life or health during theft (clause “c” of Part 2 of Article 166 of the Criminal Code of the Russian Federation) should be understood as intentional beatings or the commission of other violent acts associated with causing physical pain to the victim or limiting his freedom (by tying hands, using handcuffs, etc.). Violence dangerous to life or health, or the threat of using such violence during theft (Part 4 of Article 166 of the Criminal Code of the Russian Federation) should be understood as intentional actions that entailed the infliction of grave or moderate harm to the health of the victim, as well as minor harm to health, causing a short-term health disorder or minor permanent loss of general ability to work and the threat of committing the listed actions.
In case of a hijacking committed with the specified qualifying characteristics, additional qualification of the person’s actions under the relevant articles of the Criminal Code of the Russian Federation on crimes against life and health is not required, except in cases where the death of the victim occurred as a result of the violence used during the hijacking.
If, as a result of the intentional use of violence dangerous to life or health during the unlawful seizure of a vehicle, the death of the victim occurred due to negligence, the act should be qualified depending on the specific circumstances of the case under Part 4 of Article 166 of the Criminal Code of the Russian Federation and under Part 4 of Article 111 of the Criminal Code of the Russian Federation.
Wrongful possession of a vehicle without the purpose of theft also means making a trip under the control of the owner or possessor of the vehicle as a result of the use of violence or the threat of violence against it (in accordance with paragraph “c” of Part 2 or Part 3 or 4 of Article 166 of the Criminal Code of the Russian Federation), since in this case the specified person is deprived of the opportunity to dispose of the vehicle at his own discretion.
24. In case of unlawful seizure of a vehicle without the purpose of theft by several persons by prior conspiracy, the actions of each should be considered as complicity in a crime, that is, as co-perpetrator (Part 2 of Article 34 of the Criminal Code of the Russian Federation), qualifying what they did under paragraph “a” of Part 2 of Article 166 of the Criminal Code of the Russian Federation without reference to Article 33 of the Criminal Code of the Russian Federation, regardless of which member of the criminal group actually drove the vehicle.
25. When qualifying the actions of a person who has committed unlawful seizure of a vehicle without the purpose of theft, under Part 3 of Article 166 of the Criminal Code of the Russian Federation in the event of causing particularly large damage to ships, one should proceed from the expenses actually incurred by the owner associated with the repair of the found vehicle if it is damaged during time of theft.
If a stolen vehicle has received technical damage that precludes the possibility of its restoration and further operation, the amount of damage caused should be calculated based on its actual value on the day the crime was committed.
In these cases, additional qualification of a person’s actions under Article 168 of the Criminal Code of the Russian Federation is not required.
26. Wrongful seizure of a car or other vehicle without the purpose of theft and its subsequent intentional destruction or damage are subject to classification as a set of crimes provided for in the relevant part of Article 166 of the Criminal Code of the Russian Federation and, if there are grounds for this, Article 167 of the Criminal Code of the Russian Federation, if these acts caused harm to the owner of the vehicle significant damage, and the actions of the guilty person are not qualified as theft of a vehicle without the purpose of theft on the basis of causing particularly large damage to the victim.
27. In cases where a person unlawfully took possession of a car or other vehicle, intending to subsequently return it to the owner for a reward, his actions should be qualified under the relevant article of the Criminal Code of the Russian Federation, which provides for liability for theft.
28. When considering cases of theft of a vehicle, the courts must find out what circumstances examined at the court hearing confirm the intention of the person who took possession of the vehicle in question to use it for his own benefit or for the benefit of other persons. If the court establishes that the specified illegal actions of a person were committed only for the purpose of traveling in a stolen car (vehicle) or for other purposes without mercenary motives, the act, if there are grounds for this, is subject to legal assessment as unlawful taking of a car or other vehicle without the purpose of theft under the relevant law. part of Article 166 of the Criminal Code of the Russian Federation, provided that such qualification of the offense does not worsen his situation.
29. Wrongful seizure of a vehicle in order to facilitate the commission of another crime, if the person did not have the goal of turning the vehicle into his own favor or in favor of another person, must be qualified under Article 166 of the Criminal Code of the Russian Federation and, in aggregate, under the relevant articles of the Special Part of the Criminal Code of the Russian Federation, providing for liability for committing other crimes.
30. A vehicle belonging to the accused, in accordance with Article 81 of the Code of Criminal Procedure of the Russian Federation, is subject to confiscation only in cases where it was used as an instrument of an intentional crime.
When a crime is committed by a person found guilty of an offense under Article 264 of the Criminal Code of the Russian Federation, the vehicle cannot be recognized as an instrument of the crime.
31. Courts should decide civil claims arising from criminal cases of transport offenses, except in cases where applications for damages are not within the jurisdiction of the courts of general jurisdiction.
In cases of crimes related to violation of traffic safety rules or operation of vehicles, the owners of vehicles should be involved, who, in accordance with paragraph 1 of Article 1079 of the Civil Code of the Russian Federation, are obliged to compensate for damage caused by a source of increased danger. The owners of a source of increased danger should be understood as an organization or a citizen operating it by virtue of their ownership right, the right of economic management, operational management or on other legal grounds (for example, under a lease agreement, rental agreement, free use, under a power of attorney for the right to drive a transport vehicle). means, by virtue of the order of the relevant authority to transfer to it a source of increased danger).
32. With the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 22, 1969 No. 50 “On judicial practice in cases of crimes related to violation of traffic safety rules and operation of vehicles, as well as their unlawful seizure without purposes of theft (Articles 211, 2112, 1481 of the Criminal Code of the RSFSR)" as amended by resolutions of the Plenum of December 23, 1970 No. 56, of December 24, 1985 No. 10 and of August 27, 1986 No. 2, in editions of the resolutions of the Plenum of December 21, 1993 No. 11 and of October 25, 1996 No. 10.
Recognize as invalid on the territory of the Russian Federation the resolution of the Plenum of the Supreme Court of the USSR of October 6, 1970 No. 11 “On judicial practice in cases of motor vehicle crimes” as amended by the resolutions of the Plenum of September 3, 1976 No. 2, dated February 25, 1977 No. 3 and dated January 16, 1986 No. 5.
Chairman of the Supreme Court of the Russian Federation V.M. Lebedev
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. Doroshkov
Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 9, 2008 N 25 On judicial practice in cases of crimes related to violation of traffic rules and operation of vehicles, as well as their unlawful taking without the purpose of theft
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Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 N 18
Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 26, 2010 N 1
The Plenum of the Supreme Court adjusted its resolution on cases of illegal arms trafficking
On June 11, the Plenum of the Supreme Court adopted the Resolution “On amendments to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 12, 2002 No. 5 “On judicial practice in cases of theft, extortion and illegal trafficking of weapons, ammunition, explosives and explosive devices.”
According to partner of JSB “KRP” Mikhail Kiriyenko, the changes are more of a clarifying nature. At the same time, he emphasized that this is one of the documents most consistent with the doctrine of criminal law, which makes changes to the explanations of the Plenum of the Supreme Court. The lawyer added that now there are more reservations regarding the disclosure of the characteristics of the subject and acts enshrined in the disposition of Art. 222–223.1 of the Criminal Code of the Russian Federation.
The resolution clarifies the articles of the Criminal Code of the Russian Federation, in relation to which the Law on Weapons specifies what is meant by a firearm. So, in relation to Art. 222, 223, 224–226.1 of the Criminal Code, firearms should be understood as all types of military, service and civilian firearms, including those made by homemade means, structurally intended for mechanical destruction of a living or other target at a distance by thrown equipment receiving directed movement due to energy gunpowder or other charge. These include rifles, carbines, pistols and revolvers, hunting and sporting rifles, machine guns and machine guns, mortars, grenade launchers, artillery pieces, cannons, as well as other types of firearms, regardless of caliber.
In addition, it is clarified that in addition to pneumatic weapons, signal, starting, construction and installation pistols and revolvers, electroshock devices, items certified as household and industrial products, sports equipment structurally similar to weapons, do not belong to weapons, liability for illegal actions which is provided for in Art. 222, 223, 224–226.1 of the Criminal Code of the Russian Federation, and spark gaps.
It is noted that ammunition refers to all types of cartridges for firearms, regardless of caliber, manufactured industrially or homemade, as well as other weapons and projectile equipment intended to hit a target and containing explosive, propelling, pyrotechnic or expelling charges or a combination thereof. In addition, it is indicated that within the meaning of the provisions of Art. 222, 223, 225–226.1 CC cartridges of light and sound, traumatic, gas action, signal, construction and installation, training, bleached and other cartridges that do not have a striking element (projectile, bullet, shot, buckshot, etc.) and are not intended to hit a target, do not apply to ammunition, explosives and explosive devices.
It is clarified that when considering criminal cases of crimes under Art. 222.1, 223.1, 225–2261 of the Criminal Code, explosives should be understood as chemical compounds or mixtures of substances that, under the influence of external influences, are capable of a rapid self-propagating chemical transformation (explosion) with the release of a large amount of energy. These include: TNT, ammonites, plastites, elastites, gunpowder, etc. Explosive devices are understood as industrial or homemade products containing an explosive substance, functionally intended to produce an explosion and capable of explosion.
In addition, it is added that within the meaning of the law regarding explosive devices, liability for illegal actions with which is provided for in Art. 222.1, 223.1, 225–226.1 of the Criminal Code also include devices for initiating an explosion (fuse, fuse, detonator, etc.), located separately from the product itself.
The Plenum of the Supreme Court indicated that the courts should keep in mind that criminal liability for the illegal acquisition, transfer, sale, storage, transportation or carrying of explosives or explosive devices, as well as for the illegal manufacture of explosives, illegal production, alteration or repair of explosive devices occurs according to special standards provided for in Art. 222.1 and 223.1 of the Criminal Code.
“Taking this into account, if the court, when considering a criminal case, establishes that an item of weapons or throwing equipment contains an explosive substance, is functionally intended to produce an explosion and is capable of explosion (for example, a mine, a grenade), then illegal actions with such an item are qualified according to Art. 222.1 or Art. 223.1 of the Criminal Code,” the document emphasizes.
According to Mikhail Kiriyenko, this explanation does not quite justifiably create a distinction between the subject of these criminal norms and the subject of Art. 222, 223 of the Criminal Code of the Russian Federation regarding ammunition, which in fact must contain a charge of a certain type.
Taking into account the amendments, the perpetrators will be held administratively liable for violating the established rules for carrying, manufacturing, selling or transferring pneumatic weapons with a muzzle energy of more than 7.5 joules and a caliber of 4.5 millimeters, the circulation of which is not only prohibited by the Weapons Law, as stated in Resolution of the Plenum of the Supreme Council No. 5 of March 12, 2002, but also limited.
If it was previously noted that the main feature of a gas weapon is its purpose for temporarily destroying a target, which can be a person or an animal, through the use of toxic substances that have a tear, irritant or other effect, it is now emphasized that the defeat of the target must be chemical, tear-producing or irritating substances.
Paragraph 11 of Resolution No. 5 of March 12, 2002 was supplemented with a new provision, according to which the illegal loading of cartridges for firearms of limited destruction or gas weapons can be expressed, in particular, in assembling the cartridge by installing a means of initiating a shot in the case, placing a propellant charge, and also throwing equipment with a traumatic effect or a tear-producing, irritating substance.
It is also clarified that the illegal acquisition, transfer, sale, storage, transportation and carrying of the same firearms, their main parts, ammunition, as well as the illegal acquisition, transfer, sale, storage, transportation and carrying of the same explosives or explosive devices do not require independent qualification of each of the illegal actions under Parts 1–3 of Art. 222 or under Art. 222.1 CC.
If the perpetrator committed illegal actions, the subject of which was simultaneously not only firearms, their main parts and ammunition, but also explosives or explosive devices, the act constitutes a set of crimes provided for in Art. 222 or 223 and 222.1 or 223.1 of the Criminal Code.
In paragraph 12 of Resolution No. 5, a new paragraph has been added, according to which, in contrast to the crimes provided for in Parts 1, 2 or 3 of Art. 222 of the Criminal Code, the subject of theft or extortion (Article 226 of the Criminal Code of the Russian Federation) should also include civilian firearms, smooth-bore long-barreled weapons, as well as firearms of limited destruction. It is noted that paragraph 13 of Resolution No. 5 now indicates what is meant by the completed theft of firearms.
Privately practicing lawyer Kirill Kravchenko believed that from this clarification it follows that the resolution no longer applies to other types of weapons, other than firearms. “Does this mean that for other types of weapons, the end point has become different from the end point of the theft of firearms? To answer this question, it is necessary to understand that the law enforcement officer is bound by the form of theft, regardless of the subject of theft, therefore, revolutionary regulation is not expected in this matter: the end point still does not depend on the subject of theft,” noted Kirill Kravchenko.
Within the meaning of the law, the complete theft of weapons, their components, ammunition, explosives or explosive devices should be understood as unlawful taking of them in any way with the intention of a person to appropriate the stolen property or transfer it to another person, as well as to dispose of it at his own discretion in any other way.
Clause 16 states that the theft of firearms, their components, ammunition, explosives or explosive devices with the use of violence dangerous to life and health, or with the threat of such violence (previously - through robbery) should be considered completed from the moment of an attack with the aim of taking possession of these objects, combined with violence dangerous to the life and health of the victim, or with the threat of using such violence.
Kirill Kravchenko noted that paragraph 16 of the resolution still emphasizes that paragraph “b” of Part 4 of Art. 226 of the Criminal Code refers to crimes with a truncated composition, since the moment of completion of the specified crime is temporally shifted to an earlier stage of the commission of the crime. “This kind of approach is consistent with clause 6 of the Resolution of the Plenum of the Armed Forces of the Russian Federation on thefts, robberies and robberies, by virtue of which robbery is considered completed from the moment of an attack for the purpose of stealing someone else’s property, committed with the use of violence dangerous to life or health, or with the threat of violence such violence. Thus, the subject of the theft does not affect the moment the robbery ends, so the Plenum of the Supreme Court is doing the right thing, confirming the uniform systemic regulation of relevant issues,” the lawyer said.
In addition, a new clause 18.1 has been added to the document, according to which if, in addition to illegal actions with firearms, their main parts, ammunition, explosives or explosive devices, a person has committed their illegal movement across the customs border of the Customs Union or the State border of the Russian Federation with member states Customs Union, then what was done requires additional qualification under Art. 226.1 CC.
Clause 19 is supplemented with a new paragraph stating that the voluntary surrender of firearms and other items specified in Art. 222–223.1 of the Criminal Code does not mean the absence of corpus delicti in the act, therefore the termination of a criminal case and (or) criminal prosecution in accordance with the notes to these articles does not entail the rehabilitation of the person who committed the crime.
Also, two new paragraphs were added to the Resolution of the Plenum of the Supreme Council No. 5 - 22.1 and 22.2. Thus, the first draws the attention of the courts to the fact that in the legal assessment of actions that form the crime under Part 1 or 4 of Art. 222 of the Criminal Code, one should proceed from the nature and degree of public danger of the act and take into account the provisions of Part 2 of Art. 14 of the Criminal Code stating that an action (inaction) is not a crime, although formally it contains signs of any act provided for by criminal law, but due to its insignificance does not pose a public danger. When deciding whether an act is minor, courts need to take into account, for example, the totality of circumstances such as quantitative characteristics (storage of several cartridges) and qualitative indicators of the object, the motive and purpose that guided the person, the behavior preceding the commission of the act and (or ) during the commission of the act.
Lawyer, managing partner of the law firm “Katsailidi and Partners” Andrey Katsailidi called the addition interesting, since it makes it possible to recognize what the principal did as an insignificant event, and therefore not a crime. “It is wrong to judge a pensioner for possessing a couple of cartridges to the fullest extent of the Criminal Code; it is necessary to find out the purpose, which is often not of a dangerous nature, but is connected, for example, with memory or collecting,” the lawyer noted.
Mikhail Kiriyenko called this approach an innovation, but at the same time noted that it has been implemented in law enforcement practice for several years.
New clause 22.2 provides that, taking into account the provisions of clauses 1, 2, 3, 41, part 3, art. 81 Code of Criminal Procedure and par. 3 clause 79 of the Rules for the circulation of civilian and service weapons and their cartridges on the territory of Russia, approved by Government Decree No. 814 of July 21, 1998 “On measures to regulate the circulation of civilian and service weapons and their cartridges on the territory of the Russian Federation”, withdrawn and those attached to the criminal case, including confiscated, civilian and service weapons and ammunition for them are subject to transfer to the territorial bodies of the Russian Guard or to the police department.
