1. A crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement.
2. A crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime.
3. A crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes. 4. A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a structured organized group or a union of organized groups operating under a single leadership, whose members are united for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefit.
5. A person who created an organized group or criminal community (criminal organization) or led them is subject to criminal liability for their organization and management in cases provided for in Articles 205.4, 208, 209, 210 and 282.1 of this Code, as well as for all acts committed by the organized group or criminal community (criminal organization) of a crime, if they were covered by its intent. Other participants in an organized group or criminal community (criminal organization) bear criminal liability for participation in them in cases provided for in Articles 205.4, 208, 209, 210 and 282.1 of this Code, as well as for crimes in the preparation or commission of which they participated.
6. The creation of an organized group in cases not provided for in the articles of the Special Part of this Code entails criminal liability for preparation for the crimes for which it was created.
7. The commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by this Code.
Commentary on Article 35 of the Criminal Code of the Russian Federation
1. One of the criteria for dividing complicity into forms is the time of occurrence of a conspiracy between accomplices to commit a crime. In accordance with it, a distinction is made between complicity without prior conspiracy and complicity with prior conspiracy. The commented article talks about these forms of complicity and their varieties (types). The criminal legal significance of the forms and varieties of complicity named in the law is that they are either mandatory, constructive signs of a crime (Articles 210, 232 of the Criminal Code), or serve as a qualifying feature (Parts 2 and 3 of Art. 161 of the Criminal Code) or aggravating circumstances (clause “c” of Part 1 of Article 63 of the Criminal Code). The forms and varieties of complicity named in the commented article, Art. 63 of the Criminal Code refers to aggravating circumstances.
2. Part 1 of the commented article talks about complicity without prior conspiracy in the form of committing a crime by a group of persons. A crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement. This form of complicity is the least dangerous, although common. The actions of a group of individuals are characterized by a minimal degree of coordination. Accomplices jointly commit a crime and are co-perpetrators <1>. For example, gang rape should recognize not only the actions of persons who directly committed a violent sexual act, but also the actions of persons who assisted them by using physical or mental violence against the victim. The actions of the latter should be qualified as co-perpetrator of gang rape (Part 2 of Article 33 of the Criminal Code) (Clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 15, 2004 N 11).
——————————— <1> BVS of the Russian Federation. 2011. N 11. P. 19.
When committing (executing) a crime, accomplices can: each fulfill the objective side of the crime (one - the completely objective side, the other - part of it, each - at least part of the objective side).
3. Parts 2 - 4 of the commented article provide for another form of complicity - complicity with prior conspiracy - and three of its varieties.
In accordance with Part 2, a crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime.
K. took part in the murder of the victim after other persons, who had previously agreed on the murder, had committed actions directly aimed at taking the life of the victim. After beating the victim and stabbing him multiple times in the chest and neck by other persons, K. took him to the containers and, with the aim of killing, struck him on the head and torso with fragments of boards. The qualification of his actions as committed by a group of persons by prior conspiracy was excluded <1>.
——————————— <1> BVS of the Russian Federation. 2002. N 11. P. 15; 2007. N 11. P. 7.
The law does not limit the number of group members depending on the roles they perform in a pre-agreed joint criminal activity. Consequently, along with co-execution, participation in the commission of a crime with a distribution of roles is possible. For example, a preliminary conspiracy to murder means an agreement expressed in any form between two or more persons that took place before the commencement of actions directly aimed at taking the life of the victim. At the same time, along with co-perpetrators of the crime, other members of the criminal group may act as organizers, instigators or accomplices of murder, and their actions should be qualified under the relevant part of Art. 33 and paragraph “g”, part 2, art. 105 of the Criminal Code (clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 27, 1999 N 1). At the same time, complicity in murder (lured the victim to a secluded place, but did not take part in the taking of life) does not form a qualifying sign of murder, provided for in paragraph “g” of Art. 105 of the Criminal Code - “committed by a group of persons by prior conspiracy” <1>.
——————————— <1> BVS of the Russian Federation. 2002. N 2. P. 16; N 3. P. 21; 2005. N 1. P. 14; 2006. N 10. P. 19 - 20.
A crime is recognized as committed by a group of persons by prior conspiracy, regardless of the fact that some of the persons participating in it were not brought to criminal responsibility due to not reaching the age of criminal responsibility or insanity <1>.
——————————— <1> BVS of the Russian Federation. 2001. N 8. P. 17.
In all these cases, the direction of intent of the group members must be carefully examined. For example, participants in a robbery committed by prior conspiracy by a group of persons are liable as co-perpetrators if the intent of all the perpetrators included the use of violence dangerous to life and health. The simple coordination of the actions of the perpetrators should not be taken as a preliminary conspiracy <1>.
——————————— <1> BVS of the Russian Federation. 2008. N 4. P. 19.
A conspiracy is considered preliminary if it took place before the commission of a crime, before the beginning of the execution of the objective side of the crime. Establishing the existence of a preliminary conspiracy (where and when it took place) is necessary to distinguish between the commission of a crime by a group of persons in a preliminary conspiracy and simply by a group of persons <1>.
——————————— <1> BVS of the Russian Federation. 2001. N 7. P. 27.
The scope of the conspiracy (its content) can be different: specific signs of the crime and the behavior of the accomplices are discussed, or the agreement reflects only in general terms the signs of the intended crime.
4. Part 3 of the commented article contains the definition of an organized group. A crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes. An organized group is distinguished from a group of persons by prior conspiracy by signs of stability and organization.
Stability is evidenced by the association of two or more persons for a relatively long time to commit several crimes or one, but associated with long-term joint preparation or complex execution <1>. Organization is the subordination of group members to the instructions of one or more individuals, the determination to achieve the implementation of criminal intentions in an organized manner <2>.
——————————— <1> BVS of the Russian Federation. 2003. N 7. P. 15; N 9. P. 22; 2007. N 11. P. 16; 2012. N 3. P. 14. <2> BVS RF. 2001. N 12. P. 17; 2002. N 6. P. 11; 2008. N 6. P. 22.
The extent of participation in the commission of a crime varies. Some members of an organized group, for example during theft, can perform only part of the objective side (breaking doors, guarding the crime scene, accepting the stolen property at the time of its removal, etc.), others can look for future victims of theft. Even if such actions do not go beyond the scope of complicity, but there are stable connections between all its participants, they should be considered as co-perpetrator and qualified without reference to Art. 33 of the Criminal Code (see paragraph 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of January 27, 1999 N 1) <1>.
——————————— <1> BVS of the Russian Federation. 2011. N 9. P. 8.
According to the Criminal Code, the concept of an organized group includes a gang. A gang is distinguished from other organized groups by a combination of two mandatory characteristics - armament (and an attack is considered to have taken place even in cases where weapons were not used) and criminal goals - carrying out attacks on citizens and organizations. In relation to a gang, stability is understood as the stability of its composition, the constancy of the forms and methods of criminal activity, the close relationship between gang members, the consistency of their actions (paragraphs 2 - 5 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of January 17, 1997 N 1).
5. A crime is recognized as committed by a criminal community (criminal organization) if it is committed by a structured organized group (organization) or a union of organized groups operating under a single leadership, whose members are united for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain direct or indirectly financial or other material benefit (Part 4 of the commented article). A criminal community, in its goals and methods of association, is the most dangerous type of complicity with prior conspiracy.
Signs of a criminal community: cohesion and organization. Within the meaning of the law, cohesion should be understood as the presence of common goals and intentions among members of the organization that transform the criminal community into a single whole. Cohesion can be evidenced by the special structure of the community, the presence of a leadership team, bribery and other corrupt practices aimed at neutralizing representatives of law enforcement and other government agencies, the presence of a common material and financial base, hierarchy, etc. Signs of organization are the distribution of functions between accomplices, careful planning of criminal activities, etc. <1>.
——————————— <1> BVS of the Russian Federation. 2001. N 9. P. 9.
On the concept and characteristics of a criminal community (criminal organization) - a structured organized group, a structural unit, an association of organized groups - see paragraphs 2, 5 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 10, 2010 N 12.
The purpose of creating a criminal community - engaging in criminal activity - is clearly specified in the law: joint commission of one or more serious or especially serious crimes to obtain directly or indirectly financial or other material benefits (see commentary to Article 15, as well as paragraphs 2, 5 Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 10, 2010 No. 12).
6. Part 5 of the commented article regulates the criminal liability of the person who created an organized group, the organizer of a criminal community (criminal organization), as well as all other participants in an organized group or criminal community (criminal organization). A person who created an organized group or criminal community (criminal organization) or led them is subject to criminal liability in cases provided for in Art. Art. 208, 209, 210 and 282.1 of the Criminal Code. Thus, Federal Law dated November 3, 2009 N 245-FZ “On Amendments to the Criminal Code of the Russian Federation and Article 100 of the Criminal Procedure Code of the Russian Federation” <1> specified the crimes for the commission of which the named persons may be held criminally liable .
——————————— <1> NW RF. 2009. N 5. Art. 5263.
Crimes committed by an organized group or criminal community may be imputed to the person who created them or led them, provided that the act was covered by his intent. Other participants in such groups are held liable for participation in them only in cases provided for in the relevant articles of the Special Part of the Criminal Code, as well as for crimes in the preparation or commission of which they participated.
7. If the creation of an organized group (which in its essence is preparation for a crime) is not provided for by the articles of the Special Part of the Criminal Code, its participants are responsible for preparation for the crimes for which it was created (Part 6 of the commented article).
8. In accordance with Part 7 of the commented article and on the basis of Art. 60 Criminal Code, clause “c”, part 1, art. 63 of the Criminal Code (see commentary to them), the commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment.
Commentary to Art. 35 of the Criminal Code of the Russian Federation
1. The commented article defines the forms of complicity. Criminal law does not use the terms “form” and “type” of complicity, however, the theory of criminal law and judicial practice apply these concepts, giving them different meanings. Dividing complicity into types and forms makes it possible to determine the nature and degree of interaction between accomplices and helps to establish the degree of public danger of the crime. The question of types and forms is debatable.
Types of complicity can be distinguished by the nature of the function performed by the accomplices when committing a crime: co-execution and complicity with distribution of roles. Co-execution is characterized by the commission of a crime by co-perpetrators. It is also called simple complicity or co-authorship.
Complicity with distribution of roles presupposes the participation in the crime (in addition to the perpetrator) of at least one other accomplice: an accomplice, instigator or organizer. This type of complicity is also called complex complicity, or complicity in the narrow sense of the word. In the articles of the Special Part of the Criminal Code, these types of complicity are not provided either as signs of the main structure, or as qualifying signs. The importance of types of complicity lies in the fact that they allow one to correctly determine the nature of a person’s participation in the commission of a crime in order to resolve the issue of his criminal liability and sentencing.
In case of co-execution, the acts of co-performers are qualified only under the article of the Special Part of the Criminal Code. In the case of complicity with the distribution of roles, the actions of other accomplices (organizer, instigator, accomplice) are further qualified under the relevant part of Art. 33 of the Criminal Code. The type of complicity is taken into account when determining some forms of complicity.
2. In Art. 35 refers to the commission of a crime by a group of persons. In the theory of criminal law, it is called a form of complicity. From the commented article it follows that the forms of complicity are: 1) a group of persons; 2) a group of persons by prior conspiracy; 3) organized group; 4) criminal community (criminal organization).
Forms of complicity are distinguished depending on the method of joint commission of a crime and the degree of coordination of the actions of the accomplices. The method of committing a crime and the coordination of the actions of accomplices are interrelated features. The lower the degree of consistency, the simpler the method. And vice versa, higher consistency, agreement on the actions performed predetermines a more perfect method of committing a crime.
The content of a group of persons, enshrined in Art. 35, retains its meaning in relation to the concept of “group of persons”, enshrined as an aggravating circumstance in Art. 63 of the Criminal Code, and in all cases indicating a “group of persons” as a qualifying feature of crimes provided for in the articles of the Special Part of the Criminal Code.
In the Criminal Code, the concepts of “group of persons”, “group of persons by prior conspiracy”, “organized group” are disclosed solely on the basis of the content of the institution of complicity (see paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2004 N 11 “On judicial practice in cases about crimes provided for in Articles 131 and 132 of the Criminal Code of the Russian Federation." In this regard, the arguments of some authors who try to consider the group not only in relation to complicity, but also as a sign of the objective side - the method of committing a crime, cannot be considered convincing.
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BVS RF. 2004. N 8.
See: Rarog A., Esakov G. The Supreme Court of the Russian Federation’s understanding of a “group of persons” corresponds to the principle of justice // Russian Justice. 2002. N 1. P. 51 - 53.
According to Part 1 of Art. 35, a crime is recognized as committed by a group of persons if two or more perpetrators jointly participated in its commission without prior agreement. The method of interaction between co-perpetrators is limited either to their spontaneous acts, or to the joining of one person to the beginning of the criminal activity of another.
A group of persons is characterized by two characteristics: it includes only co-executors, and there is no prior agreement between them. Co-perpetrators as accomplices must have all the signs of a subject of a crime, at least at least two of them. Other accomplices who provide any assistance to a group of persons are not included in the group and are not its participants. For example, two teenagers met their enemy and, without saying a word, began to beat him. At this time, their friend was passing by, who invited the teenagers to come to him, “get themselves in order,” wash off traces of blood, change clothes and destroy the bloody clothes. In this case, the group of persons is formed only by teenagers who have committed the objective side of the crime, i.e. those who beat. The third is an accomplice who promised in advance to hide traces of the crime. The accomplice is not a member of the group of persons.
3. Preliminary conspiracy is understood as an agreement between co-perpetrators to commit a crime, reached before the commission of the crime, i.e. at the cooking stage. A conspiracy that took place already in the process of committing a crime is not considered preliminary. Such joint activity of co-executors forms a group of persons. When a group of people has accomplices, the crime as a whole is committed with a distribution of roles, i.e. the form of complicity is a group of persons, and its type is complicity with the distribution of roles.
Crimes are often committed by a group of people. The Criminal Code provides for a group of persons as a qualifying feature of murder (clause “g”, part 2 of article 105 of the Criminal Code), intentional infliction of grievous harm to the health of the victim (clause “a” of part 3 of article 111 of the Criminal Code).
4. In part 2 of Art. 35 provides that a crime is recognized as committed by a group of persons by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime. A group of persons in a preliminary conspiracy is characterized by two characteristics: the participation of only co-principals, the presence of a preliminary conspiracy. Other accomplices (organizer, instigator or accomplice), who did not simultaneously perform the functions of a co-principal, are not included in the group of persons by prior conspiracy. Their actions should be qualified with reference to the relevant part of Art. 33 of the Criminal Code.
Unlike the first group, the co-perpetrators are not directly named as only one member of the group of persons by prior conspiracy. Part 2 of the commented article talks about the participation of persons who have agreed in advance to jointly commit a crime. This formulation was the reason in the theory of criminal law for different understandings of the composition of a group of persons in a preliminary conspiracy. There are statements that a group of persons by prior conspiracy can also be characterized by a distribution of roles.
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See: Naumov A.V. Decree. op. P. 301.
Only co-principals can be members of a group of persons by prior conspiracy.
It is the commission of a crime by such a group, as co-perpetrators, that increases the social danger of the crime. Combining the efforts of previously agreed persons gives a greater effect when these persons are directly involved in carrying out the objective side of the crime. The social danger of the committed act is, as a rule, higher when it was directly carried out by several persons who previously agreed on their actions. The commission of a crime by one person, who was assisted by an organizer, accomplice, instigator, does not reach the degree of public danger that is characteristic of a group of persons by prior conspiracy. Therefore, not any commission of a crime by accomplices by prior conspiracy, but only its implementation by a group of persons socially determined the need to distinguish this form of complicity. The concept of a group of persons by prior conspiracy has the same content in relation to the articles of the General and Special Parts of the Criminal Code.
Judicial practice understands a group of persons by prior conspiracy as co-principals. On the concept of preliminary conspiracy, see the commentary on the concept of a group of persons.
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BVS RF. 2002. N 2. S. 16, 17; pp. 21, 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2007 N 51 “On judicial practice in cases of fraud, misappropriation and embezzlement” // BVS RF. 2008. N 2.
The commission of a crime by a group of persons by prior conspiracy is provided for in many articles of the Special Part of the Criminal Code as a qualifying feature of the crime. In all forms of theft, in many crimes against life and health, against public safety, etc., increased criminal liability is established when a crime is committed by such a group. Acts of members of a group of persons by prior conspiracy are qualified only under the article of the Special Part of the Criminal Code, the part, the paragraph of the article providing for the analyzed form of complicity. A criminal legal assessment of the activities of other accomplices of this group requires an additional reference to the relevant part of Art. 33 of the Criminal Code.
5. In part 3 of Art. 35 provides that a crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes. An organized group is characterized by prior agreement and stability.
A preliminary agreement may relate to several or to one act. The agreement must be preliminary, i.e. take place before the execution of the objective side of the crime begins. An agreement among participants in an organized group is not simply a coordination of individual actions of accomplices, but a specification of the commission of crimes, a detailing of the participation of each accomplice, and a determination of ways to optimally implement the criminal plan.
The presence of detailed agreement indicating the functions and actions of the accomplices indicates a greater degree of co-organization compared to a group of persons in a preliminary conspiracy. Often, in an organized group, especially when it is formed to commit one crime, there is a detailed, detailed plan (for example, for a terrorist act, robbery).
Stability as a sign of an organized group consists in the establishment of close ties between participants, repeated contacts for detailing and elaboration of future actions. A special kind of interaction relationship arises between accomplices in the process of committing a crime.
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BVS RF. 2001. N 10. P. 17.
An organized group may consist of co-executors, or may include other accomplices. The stability and special coordination of the members of such a group increase its social danger so much that the distribution of roles between accomplices is the achievement of objective and subjective organization for the purpose of committing several crimes.
In one of the cases, the court specifically emphasized the importance of the form of complicity for the criminal legal assessment of the activities of an accomplice. Within the meaning of the criminal law, in the case of a theft with penetration into a home by prior conspiracy by a group of persons in the absence of signs of an organized group, the actions of persons who are aware of the goals of the participants in the theft and assisted them in transporting them to the crime scene and back, but did not provide assistance in directly entering the housing or seizure of property are subject to qualification as complicity in a crime in the form of aiding and abetting.
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BVS RF. 2002. N 1. P. 21.
In an organized group, indicated as a sign of the main or qualified crime, all its participants are co-perpetrators. They are held accountable only under the article of the Special Part of the Criminal Code without reference to Art. 33 of the Criminal Code, regardless of the fact that they did not actually fulfill the objective side of the crime.
In the above example, the behavior of a person who assisted in committing theft by delivering accomplices to the crime scene and back was assessed as aiding a group of persons by prior conspiracy. The same actions of a person who was a member of an organized group receive a different legal assessment: as a co-performer within the organized group.
An organized group is provided for in many articles of the Special Part of the Criminal Code as a qualifying feature of the crime, for example, for the production or sale of counterfeit money or securities (Part 3 of Article 186 of the Criminal Code). A type of organized group is a gang, the creation of which is provided for as a completed crime (Article 209 of the Criminal Code).
If an organized group commits a crime that, according to criminal law, does not have qualifying features in the form of a group of persons, a group of persons by prior conspiracy or an organized group, the actions of its participants, except for the perpetrator (co-perpetrators), must be qualified with reference to Art. 33 of the Criminal Code. When assigning punishment to all members of an organized group, it is necessary to take into account the commission of a crime as part of an organized group as an aggravating circumstance (clause “c” of Part 1 of Article 63 of the Criminal Code).
6. In accordance with Part 4 of Art. 35, a crime is recognized as committed by a criminal community (criminal organization) if it is committed by a structured organized group or a union of organized groups operating under a single leadership, whose members are united for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefit.
The basis of a criminal community is formed by an organized group. A criminal community, in addition to the characteristics related to an organized group, is also characterized by structure, creation for the purpose of jointly committing one or more serious or especially serious crimes in order to obtain directly or indirectly financial or other material benefits. The characteristics of an organized group discussed above—sustainability and preliminary coordination of activities—retain their significance for the concept of a criminal community.
A structured organized group should be understood as a group of persons who have united in advance to commit one or more serious or especially serious crimes, consisting of units (subgroups, units, etc.) characterized by stability of composition and coordination of their actions. Such a group, in addition to a single leadership, is characterized by the interaction of its various divisions in order to implement common criminal intentions, the distribution of functions between them, the presence of possible specialization in performing specific actions when committing a crime, and other forms of ensuring the activities of the criminal community. A structural unit of the latter is a functionally and (or) territorially isolated group consisting of two or more persons (including its leader), which, within the framework and in accordance with the goals of a criminal community (criminal organization), can not only commit individual crimes (giving bribes , forgery of documents, etc.), but also to perform other tasks aimed at ensuring its functioning (clauses 3 and 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 2010 N 12 “On the judicial practice of considering criminal cases on the organization of criminal community (criminal organization) or participation in it (it) ").
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BVS RF. 2010. N 8.
The criminal community is distinguished by a clear structure in the form of an association of organized groups. Here, each organized group is an independent structural unit of the criminal community and is subordinate to a single leadership.
A criminal community is created for the purpose of jointly committing one or more grave or especially grave crimes in order to obtain directly or indirectly financial or other material benefits. The law specifies that a grave or especially grave crime is committed to obtain directly or indirectly financial or other material benefits. Only when two goals are combined: committing a serious or especially serious crime and obtaining the specified benefit, there is a criminal community.
On the concept of grave and especially grave crimes, see commentary. to part 4 and 5 art. 15 of the Criminal Code.
Obtaining directly or indirectly financial or other material benefits may include the acquisition of property or rights to property, entering a new market for products, gaining access to the disposal of financial resources, influencing decisions on concluding contracts, obtaining a profitable position, etc.
All the considered characteristics of a criminal community (criminal organization) together form the most dangerous form of complicity. Only when they exist together does such a criminal community exist.
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BVS RF. 2001. N 9. S. 9, 10.
The criminal community has an increased social danger, which is taken into account by the legislator. In the current Criminal Code, the organization of a criminal community is provided for as an independent crime in Art. 208 of the Criminal Code - organization of an illegal armed group; in Art. 210 of the Criminal Code - organization of a criminal community (criminal organization) and in Art. 282.1 of the Criminal Code - organization of an extremist community for the purpose of committing crimes of an extremist nature, which are classified as grave or especially grave crimes (see commentary to Article 282.1).
The peculiarity of the listed crimes is that they are recognized as completed at the moment of creation of the corresponding formation or organization. Regardless of whether a criminal community (Article 210 of the Criminal Code) has committed a serious or especially serious crime or has not yet committed it, from the moment of its creation the crime is considered completed. These acts are constructed according to the type of crimes with truncated elements, in which the preparatory actions themselves are recognized as a completed crime.
Participation in a criminal community is an aggravating circumstance (Article 63 of the Criminal Code). Persons who are not members of a criminal community, who provided him with any assistance, are recognized as accomplices of the criminal community and are held accountable with reference to Art. 33 of the Criminal Code.
According to Part 5 of Art. 35, a person who created an organized group or criminal community (criminal organization) or led them is subject to criminal liability for their organization and management in cases provided for in Art. Art. 208, 209, 210 and 282.1 of the Criminal Code, as well as for all crimes committed by an organized group or criminal community (criminal organization) that were covered by its intent.
The organizer is held criminally liable for all crimes committed by such groups, if there is his intent. This means the responsibility of the organizer in situations where he did not personally direct the crime, but was aware of the commission of the latter and it was committed under his general leadership.
Other members of an organized group or criminal community (criminal organization) bear criminal liability either for participation in them in cases provided for in the articles of the Special Part of the Criminal Code, or for crimes in the preparation or commission of which they participated (Part 5 of Article 35). In the first case, the responsibility of accomplices is provided for membership in such groups, for example, a participant in a criminal organization (Part 2 of Article 210 of the Criminal Code) is responsible for being a member of it as a person responsible for the logistics of the criminal community.
In the second case, a member of an organized group preparing a murder is responsible for preparing for it as part of an organized group under Part 1 of Art. 30 and paragraph “g”, part 2, art. 105 of the Criminal Code.
The creation of an organized group in cases not provided for in the articles of the Special Part of the Criminal Code entails criminal liability for preparation for the crimes for which it was created (Part 6 of Article 35). Members of an organized group preparing the deliberate destruction of property by explosion (Part 2 of Article 167 of the Criminal Code) are held criminally liable for preparing for such destruction in complicity. The actions of each accomplice are qualified under Part 1 of Art. 30, part 2 art. 167 and the corresponding part 3, 4 or 5 of Art. 33 of the Criminal Code.
7. The commission of a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) entails a more severe punishment on the basis and within the limits provided for by the Criminal Code (Part 7 of Article 35).
The commission of a crime by any of these groups, provided as a qualifying or constitutive sign of the crime, is reflected in the qualifications of other accomplices who are not members of such a group. They are held accountable under the article of the Special Part of the Criminal Code containing the specified sign, with obligatory reference to Art. 33 of the Criminal Code. When a group of persons, by prior conspiracy, who committed, for example, theft from a shopping pavilion, was helped by an accomplice, taking the stolen property from the scene of the crime, such an accomplice is held accountable for aiding this group of persons under Part 5 of Art. 33 and paragraph “a”, part 2, art. 158 of the Criminal Code. This qualification is explained by the fact that assistance must be taken into account not only to one performer, but to a group of persons.
8. In an organized group and criminal community, all participants, despite the actual distribution of roles, are legally co-principals. When the commission of a crime by an organized group is enshrined in an article of the Criminal Code as a qualifying feature, then all members of this group are held accountable only under this article of the Special Part of the Criminal Code. For example, an organized group smuggles tobacco products. Although this group includes an organizer, two co-executors and two accomplices, all of them must be held liable under Part 4 of Art. 188 of the Criminal Code (without reference to Article 33 of the Criminal Code for the organizer and accomplices). The basis for this qualification is that an organized group characterizes the objective side of the crime; therefore, all its participants legally fulfill at least some part of the objective side of the crime, i.e. are co-executors.
The commission of a crime by a criminal community is not provided for in the criminal law as a qualifying circumstance. The commission of a serious crime by its participants, for example, extortion in order to obtain property on a large scale, entails their liability as follows:
1) all members of a criminal community are prosecuted for participation in a criminal community; organizer - under Part 1 of Art. 210 of the Criminal Code, and other participants - under Part 2 of Art. 210 CC;
2) all participants in a criminal community are responsible for extortion committed by an organized group and for the purpose of obtaining property on a large scale (clauses “a”, “b”, part 3 of article 163 of the Criminal Code);
3) to all participants of this community, when assigning punishment for extortion, an aggravating circumstance is taken into account - the commission of a crime as part of a criminal community (clause “c” of Part 1 of Article 63 of the Criminal Code). The need to take into account an aggravating circumstance for each accomplice is explained by the fact that members of the criminal community were brought to justice for committing extortion by an organized group. In fact, the crime was committed by a criminal community whose degree of danger to society is higher than the danger of an organized group. What is not taken into account in the qualification of the acts of accomplices - the commission of extortion by this community - is implemented when assigning punishment to them as an aggravating circumstance.
9. The responsibility of accomplices in a crime is connected not only with the qualification of their role and the form of complicity. Their responsibility is also affected by the rules for assigning punishment. In accordance with Art. 63 of the Criminal Code, the commission of a crime as part of a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization) is recognized as an aggravating circumstance.
According to Art. 67 of the Criminal Code, when assigning punishment for a crime committed in complicity, the nature and extent of the person’s actual participation in its commission, the significance of this participation in achieving the goal of the crime, its impact on the nature and extent of the damage caused or possible are taken into account. This legal requirement predetermines the individual responsibility of each accomplice prosecuted under the same article of the Special Part of the Criminal Code and punished within the limits of its sanctions.
