Article 34 of the Criminal Code of the Russian Federation. Current edition for 2022, comments and judicial practice

1. The liability of accomplices to a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime.

2. Co-perpetrators are liable under the article of the Special Part of this Code for a crime committed by them jointly, without reference to the article of this Code.

3. Criminal liability of the organizer, instigator and accomplice occurs under the article providing for punishment for the crime committed, with reference to the article of this Code, except for cases where they were simultaneously co-perpetrators of the crime.

4. A person who is not the subject of a crime specifically specified in the relevant article of the Special Part of this Code, who participated in the commission of a crime provided for by this article, bears criminal liability for this crime as its organizer, instigator or accomplice.

5. If the perpetrator does not complete the crime due to circumstances beyond his control, the remaining accomplices bear criminal liability for preparation for a crime or attempted crime. A person who, due to circumstances beyond his control, failed to persuade other persons to commit a crime, is also criminally liable for preparation for a crime.

Article 33. Types of accomplices in a crime
Article 35. Committing a crime by a group of persons, a group of persons by prior conspiracy, an organized group or a criminal community (criminal organization)

Commentary to Art. 34 of the Criminal Code of the Russian Federation

The basis for criminal liability of accomplices is the commission of an act containing all the elements of a crime provided for by law (Article 8 of the Criminal Code of the Russian Federation). However, in relation to accomplices (except for performers), these signs are not fully defined in the article of the Special Part. Therefore, the actions of the organizer, instigator and accomplice are qualified under the relevant article (its part, paragraph) of the Special Part with reference to the relevant part of Art. 33 of the Criminal Code of the Russian Federation.

If a person, being an organizer, instigator or accomplice, then took part in the commission of a crime as a perpetrator, his act as a whole is qualified as an act of a perpetrator without reference to Art. 33 of the Criminal Code of the Russian Federation.

If a person acts as an instigator and accomplice, his act is qualified with reference to two parts of Art. 33 of the Criminal Code of the Russian Federation (parts 4 and 5). If a person, being the organizer of a crime, performed the functions of an instigator or accomplice, the act is qualified with reference to Part 3 of Art. 33 of the Criminal Code of the Russian Federation as an act of an organizer without specifying part 4 or part 5 of this article.

The law does not provide for mandatory toughening or mitigation of punishment depending on the type of accomplice. When assigning punishment for a crime committed in complicity, when deciding on release from liability or from punishment, 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 caused or possible harm are taken into account. Mitigating or aggravating circumstances related to the personality of one of the accomplices (for example, recidivism) are taken into account when assigning punishment only to this accomplice.

In the science of criminal law, there is a long-standing debate about the legal nature of complicity. Proponents of the accessory theory of complicity believe that accomplices are responsible for the act of the performer (the liability of accomplices seems to them additional to the responsibility of the performer). Opponents of this theory proceed from the fact that accomplices are responsible not for the act of the perpetrator, but for their own acts, regardless of the act of the perpetrator. By studying the law and the practice of its application, one can find arguments both for and against the accessory theory of complicity. In general, it can be stated that accomplices are most likely responsible for their own actions, although certain elements of accessory are present in the existing doctrine of complicity. The strongest argument in favor of the accessory theory of complicity is that the actions of all accomplices are classified equally. There are only a few exceptions to this rule:

a) accomplices are not liable for an act not covered by their intent;

b) when qualifying the act of an accomplice, circumstances that relate to the personality of the other accomplice are not taken into account (for example, the age of the accomplice or the fact that a mother killed her newborn child);

c) when qualifying the actions of organizers, instigators and accomplices, reference is made to Art. 33 of the Criminal Code of the Russian Federation;

d) special rules apply when qualifying complicity, divided by law into different offenses, for example, receiving and giving a bribe.

The accessory theory of complicity is most clearly illustrated by the rule for qualifying incitement to a crime if the crime was stopped at the stage of attempt - the act is qualified with reference not only to Art. 33, but also at Art. 30 of the Criminal Code of the Russian Federation (i.e. as incitement to attempt), although the person did not incite an attempt at a crime, but to commit it. Another argument in favor of the accessory theory: the complicated procedure for the voluntary refusal of accomplices to complete the crime. Thus, an accomplice is obliged not only to withdraw his contribution to the crime, but to take all measures within his power to prevent the crime (Part 3 of Article 31 of the Criminal Code of the Russian Federation). The organizer and instigator, in order to apply the rule of voluntary refusal to them, are completely obliged to prevent the commission of a crime (conscientious actions in this direction are not enough). The accessory understanding of complicity is also supported by the possibility of complicity in a crime with a special subject by a person who does not have the characteristics of a special subject (he cannot be a perpetrator, including in cases of indirect infliction, but can act as an organizer, instigator or accomplice).

At the same time, there are convincing arguments against the accessory understanding of complicity:

a) a single basis for criminal liability enshrined in the law (Article 8 of the Criminal Code of the Russian Federation);

b) the voluntary refusal of the perpetrator does not exclude the responsibility of other accomplices for preparation for the crime;

c) failed incitement is classified as preparation for a crime (successful incitement is also classified if the crime is stopped at the preparation stage);

d) the concept of the perpetrator’s excesses is formulated in the law unjustifiably narrowly; in reality, excesses are also possible on the part of other accomplices (for example, an instigator incites a person to kill a law enforcement officer, inciting jealousy in him, while having the goal of preventing the lawful activities of this officer, unknown to the perpetrator) ;

e) impossibility of complicity after the commission of a crime;

f) the possibility of bringing accomplices to justice before bringing the performer to justice or without bringing the performer to responsibility (for example, if the performer disappeared or died).

Performer's kurtosis

The excess of the performer is the commission of acts that are included only in the intent of the performer.
In any type of combined crime, excess is possible. That is, the performer exceeds the limits within which he must act when implementing illegal actions. This entails the implementation of a more serious crime. A feature of excess is the absence of a causal connection between the intent of the accomplices and the illegal actions.

Types of excess:

Qualitative excess - a person who directly commits an offense, which is included in the intent of the other accomplices, commits another type of crime that was not covered by intent.
Quantitative excess – the actions of the performer led to more severe consequences. A different result of actions or in the case of a different method of carrying out the crime is also possible. In this case, exceeding the result required by the criminals does not entail an interruption of the crime.

If the crime turns out to be less serious, the perpetrator is provided with a waiver of the more serious crime (mitigates the sentence).

In the case of quantitative excess, accomplices are responsible either for the fact of an unfinished (for example, attempted) crime or a completed one, but part of their plans.

In case of qualitative excess, the punishment for the performer will be based on the totality of actions (both planned and executed).

Complicity begins to appear in legal sources of the Middle Ages. This suggests that this concept is one of the most ancient in the history of criminal law. Moreover, even modern legislation has not been able to eradicate this criminal institution. An example of this is the corruption system that has developed in Russia in recent years.

Judicial practice under Article 34 of the Criminal Code of the Russian Federation

Resolution of the Presidium of the Supreme Court of the Russian Federation dated March 29, 2017 N 27P17
When deciding the issue of reclassifying the actions of the organizer of the crime, it was based on the fact that Part 3 of Art. The Criminal Code of the Russian Federation, regardless of the circumstances relating to the organizer of the crime (including regardless of the direction of intent, the motive, the purpose of his actions), presupposes the qualification of what he has done according to the same norm of criminal law as the actions of the perpetrator.

Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated May 17, 2018 N 203-APU18-6

The court also correctly took into account the fact that, in accordance with Part 2 of Art. and part 5 of Art. Of the Criminal Code of the Russian Federation, participants in an organized group, regardless of the nature of their activities aimed at committing a crime, are recognized as co-perpetrators and are held liable for this crime as for an act committed by them jointly, without reference to Art. Criminal Code of the Russian Federation.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 21, 2018 N 48-APU18-13

According to Part 2 of Art. Under the Criminal Code of the Russian Federation, co-perpetrators bear criminal liability for crimes committed by them jointly. When assigning punishment to Magomedov, the court took into account not only the nature and degree of public danger of the crimes committed, but also other circumstances, including mitigating the punishment - confession of the crime after detention, his statement about it, provided for in paragraph “i” of Part 1 of Art. Criminal Code of the Russian Federation. In addition, the court actually recognized the age of the convicted person and his state of health as mitigating circumstances.

Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated August 22, 2019 N 208-APU19-8

In support of the complaint, lawyer Kuleshov points to the erroneous classification of Grimsultanov’s actions as a completed crime, without reference to Art. of the Criminal Code of the Russian Federation, and in connection with this, the absence in the sentence of the end of his criminal actions. Since the crime prepared by Yusupov was not completed, then Grimsultanov, by virtue of the provisions of Parts 3 and 5 of Art. of the Criminal Code of the Russian Federation, must be held accountable for an unfinished crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 22, 2019 N 33-APU19-16

According to the provisions of Art. According to the Criminal Code of the Russian Federation, the responsibility of accomplices in a crime is determined by the nature and degree of actual participation of each of them in the commission of a crime. In Art. The Criminal Code of the Russian Federation provides for the following forms of committing group crimes that are subject to qualification as co-perpetrators: a group of persons, a group of persons by prior conspiracy, an organized group, a criminal community (criminal organization), which differ from each other in the degree of cohesion, internal organization, and methods of communication of accomplices within the system.

Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated November 19, 2019 N 205-APU19-36

At the same time, the court, in accordance with the requirements of Art. The Criminal Code of the Russian Federation correctly takes into account the nature and extent of Kadyrov’s actual participation in the commission of a crime, the significance of this participation for achieving the goals of criminal activity, its influence on the nature and extent of harm caused to social relations protected by law.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 19, 2018 N 4-APU18-23

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/05/2019 N 31-APU19-1

Contrary to the arguments of the appeals by virtue of Part 2 of Art. and part 5 of Art. Criminal Code of the Russian Federation actions of Ivanov V.N. and other participants are correctly assessed as co-perpetrators of crimes. Grounds for combining the actions of Nikolaev E.A. there is no continuing crime, since the actual circumstances of the transfer of each of the two bundles are different, and therefore cannot be considered as one crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02.02.2017 N 30-APU17-1SP

In accordance with Part 3 of Art. Of the Criminal Code of the Russian Federation, criminal liability of the organizer, instigator and accomplice occurs under the article providing for punishment for the crime committed, with reference to Article 33 of this Code, except for cases where they were simultaneously co-perpetrators of the crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/07/2017 N 32-APU17-2sp

Since Khairulin was convicted of aiding and abetting a crime committed by a group, when sentencing him, the court must be guided not only by the provisions of Part 3 of Art. of the Criminal Code of the Russian Federation, but also taken into account in accordance with Part 1 of Art. , part 1 art. of the Criminal Code of the Russian Federation, the nature and extent of his actual participation in the commission of a crime, the significance of this participation in achieving the goal of the crime.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 18, 2017 N 20-APU17-5

Analysis of the legal provisions of the norms of the criminal law (Article , , , of the Criminal Code of the Russian Federation) does not prevent the qualification of the actions of perpetrators and other accomplices of the crime under different articles and different parts of the same article of the Special Part of the Criminal Code of the Russian Federation, depending on their actions, goals and motive criminal behavior.

Harboring

Unlike complicity, concealment occurs after the unlawful act has been committed. According to the provisions of the Criminal Code, concealment of relatives and spouses is not punishable.

From the objective side, concealment is always an active action. There are 2 types of this assistance: intellectual and physical. Intellectual concealment is not punishable by law. However, there are exceptions - this is a false denunciation (Article 306) and false testimony, including the conclusions of specialists, translators, experts (Article 307), but according to the code they are separate illegal acts.

Physical concealment is divided into:

hiding the culprit from the police (providing housing, fake documents, providing food, money);
destruction of traces (elimination of evidence, concealment of a corpse);
getting rid of tools (destruction, modification, concealment);
purchase or sale of stolen property that was transferred to the concealer by criminals (Article 175).

The subjective side is only intent. The guilty person is punished only if he realizes that he is committing an unlawful act and the actions he takes are desirable for him.

Signs

The presence of objective and subjective signs is the basis of ownership. If a person’s actions lack any of them, the crime of complicity is not recognized.

Objective properties include:

Committing illegal actions by two or more persons. In this case, all perpetrators must be legally competent. If criminals use an insane person or a minor for their own purposes, it cannot be considered committed jointly. The Criminal Code defines actions the implementation of which is possible only if there is a large group of participants. An example is the following articles: 212 of the Criminal Code of the Russian Federation “Mass riots”; 278 “Forcible seizure of power”; 279 “Armed rebellion.”
Community in achieving a criminal goal, as well as mutual responsibility of criminals for each other. The independence of criminals contradicts culpability. For example, if several robbers commit a theft, but they do not cooperate with each other and act at the same time, but separately, there cannot be cooperation.
The result of criminal activity is the same for all accomplices. With a formal composition, the relationship between the work of all participants and the performer is established. In material terms, it is the sequence of actions of each criminal that led to consequences. In a situation where a person gave a gun to the killer, he is considered an accessory to murder only if the death was caused by a shot from that weapon.

Subjective signs of complicity in a crime:

awareness of the participating persons about each other and the role of each (performer, accomplice, own); Awareness by accomplices of joint execution of a specific offense. The wrongfulness of one's own and others' behavior. Knowing each of the group members is not necessary. The main thing is to understand that a certain action occurs through the efforts of different people.
the presence of a single intent - the direction of activity towards one crime. The difference in motives and objectives does not matter. So, when ordering the murder of someone, the killer’s motive is profit, while the goal of the customer may be different (revenge, anger, hatred).

Usually, complicity is characterized by activity, but this does not exclude the possibility of co-ownership through inaction. An example of this is the refusal to perform official duties by a security officer in agreement with robbers, whose goal is theft in a protected area.

The legislation of the Russian Federation regulates complicity committed only with direct intent.

However, in theory there is a possibility of negligence.

Complicity is possible in the implementation of ongoing and ongoing offenses

Moreover, what stage the execution is at is not important. The exception is a preliminary promise to hide traces of the case

Types of complicity within criminal law

Article 35 of the Criminal Code of the Russian Federation reflects forms of complicity in a crime. These include:

the criminal act was carried out by a group of citizens, provided that two or more perpetrators took part in this event without prior agreement;
the crime was carried out by agreement if persons who agreed on it in advance took part in it;
the criminal act was carried out by a group (organized) united for this purpose, the citizens agreed on everything in advance;
a criminal act is considered committed by an organization (criminal) if it occurred in the presence of an organized group, an association of citizens who acted under leadership in order to commit a criminal act.

Forms

The criminal legislation of Russia provides for various variations of interaction between subjects whose intention is to jointly commit a crime. The set of characteristic features that unite types of connections into separate groups constitutes forms of involvement.

These signs include:

Feature of the association.
System of interaction between participants.
Level of organization.
Distribution of individual functions.

The qualification of criminal behavior depends on the form. This is a mandatory criterion for determining liability and its limits.

Classification is based on an objective criterion. The nature and method of communication between accomplices and the qualifications of their actions are taken into account.

Based on these facts, specific forms of involvement are identified based on the norms of the Criminal Code:

simple (the number of criminals is equal to the number of perpetrators);
complex;
organized association;
community.

The essence of simple co-perpetration is characterized by the presence of several persons committing a crime in a group. An example would be robbery - one of the criminals threatens a person with a knife, while the other takes away valuables.

In such a situation, both types of conspiracy may be present, that is, both preliminary and in the process of the crime. In principle, conspiracy is not necessary for these offenses. But its absence will lead to the impossibility of complicity.

If a preliminary conspiracy is recognized as an illegal act, it is qualified according to the norms of the special part; Article 33 of the Criminal Code of the Russian Federation is not mentioned.

Complex culpability is indicated for those crimes in which one person or some part of the group is actively involved, while all other accomplices are doing other work (for example, standing on guard, coordinating, covering or getting rid of traces).

A group whose main feature is stability is called organized. This is an association of persons whose goal is to commit a certain number of illegal acts. It is created in advance through conspiracy and can be directed towards the implementation of one act or towards the criminal sphere as a whole. Also, this type of crime is the only one in which all types of connections between accomplices can be present.

To be recognized, a group must meet the following conditions:

Sustainability.
Availability of an organizer.
Increased bond strength.
Cohesion of participants.
Great degree of danger.
Criminal skills of accomplices.
Duration of existence.
Availability of special means.
Distribution of duties.
A precise behavior pattern has been formulated.

In some situations, the very creation of an organized criminal association can serve as a reason for persecution. The fact of illegal activity does not matter here. For example, the Criminal Code of the Russian Federation recognizes the organization of an armed criminal association as banditry (Article 209).

A community should be understood as an organization of several criminal associations. Such a community seems to be the most dangerous form of involvement and sometimes numbers several dozen criminals or more. In some situations it may have an international scope. Community always serves as a basis for criminal prosecution.