ST 33 of the Criminal Code of the Russian Federation.
1. Along with the perpetrator, the organizer, instigator and accomplice are recognized as accomplices to the crime.
2. A perpetrator is a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by this Code. .
3. An organizer is a person who organized the commission of a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them.
4. An instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means.
5. An accomplice is recognized as a person who assisted in the commission of a crime by advice, instructions, provision of information, means or instruments for committing a crime or removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, and equally a person who promised in advance to purchase or sell such items.
Commentary to Art. 33 Criminal Code
1. The criminal law knows three types of performers.
The first of them is the perpetrator who directly commits the crime, i.e. who single-handedly carried out the entire objective side of the crime.
The second type of perpetrator is a co-perpetrator, who is directly involved in the commission of a crime together with other persons. All these persons are called co-perpetrators, since together they perform the objective side of the crime. In this case, to establish co-perpetrators, it is enough that each of the co-perpetrators fulfilled at least part of the objective side of the crime.
The third type of performer is the “mediocre performer.” In this case, a subject who can bear criminal liability uses to commit a crime a person who, for any reason, is not subject to criminal liability. At the same time, the subject capable of incurring criminal liability does not directly participate in the implementation of the objective side of the crime and actually plays the role of an organizer (accomplice, instigator). However, by virtue of the law, he is considered as a mediocre perpetrator of a crime committed by a person not subject to criminal liability.
2. According to Art. 33 of the Criminal Code of Russia, from the definition of an organizer given in Part 3, four types of organizational activities can be distinguished.
Firstly, the organizer of a crime is the person who organized the commission of the crime, i.e. preparing the commission of a crime in whole or in large part by developing a plan for committing a crime, finding accomplices, instruments and means of committing a crime, training accomplices, etc.
Secondly, the organizer is the person who led the execution of the crime, i.e. a person who organizes the activities of accomplices in the direct commission of a crime both at the place of its commission and outside it.
Thirdly, the organizer is the person who created an organized group or criminal community (criminal organization), i.e. a person whose activities result in finding accomplices, instruments and means of committing a crime, developing plans for committing crimes, etc. was the creation of an organized group or criminal community (criminal organization).
Fourthly, the organizer is the person who led an organized group or criminal community (criminal organization), i.e. a person who heads an organized group or criminal community (criminal organization) already created by himself or another person.
3. According to Article 33 of the Criminal Code of the Russian Federation, an instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means. The inducement to commit a crime must be of a specific nature, i.e. cause in an individually determined person a desire to commit a certain crime and be aimed at inciting such a desire, although this does not require clear details of criminal actions.
4. Depending on the nature of the accomplice’s activity, aiding is divided into two types: intellectual and physical.
Intellectual assistance includes giving the perpetrator advice, instructions and providing other information that significantly facilitates the commission of a crime and contains informative information. Intellectual complicity also includes a promise made in advance to hide a criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, as well as a promise given in advance to acquire or sell such objects. The only exception known to judicial practice, when in the absence of a pre-given promise to purchase or sell items obtained by criminal means, such actions can be recognized as complicity, is based on their systematic commission in the past, allowing the perpetrator of the crime to count on similar assistance in committing a crime in the future ( Clause 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 7, 2015 No. 32 “On judicial practice in cases of legalization (laundering) of funds or other property acquired by criminal means, and on the acquisition or sale of property known to be obtained by criminal means”) .
Physical assistance includes providing means or instruments for committing a crime or removing obstacles. Physical complicity is possible through both action and inaction and must provide the perpetrator with significant assistance in committing the crime.
What is incitement: article of the Criminal Code of the Russian Federation
Based on the content of Art. 33 of the Criminal Code of the Russian Federation, incitement is the inducement of another person (persons) to commit a crime. At the same time, the law lists possible ways of involvement in criminal activity: threats, bribery, persuasion, etc.
As investigative and judicial practice shows, the most common type of incitement is bribery, that is, the transfer or promise of reward for performing certain actions that are clearly contrary to the Criminal Code. For example, payment for forgery of documents or, which happens much more often, provision of part of the stolen property for participation in a robbery or theft.
Important! De facto, incitement is often difficult to distinguish from such forms of complicity in a crime as its organization and complicity. Difficulties in qualification are due to many common characteristics. This is especially true for intellectual complicity: just like the instigator, the accomplice in this case exerts a mental influence on the will of the direct perpetrator and his consciousness in order to form and strengthen the determination to break the law.
Nevertheless, the methods of influence of the accomplice and the instigator are different. The role of the former is to give specific recommendations regarding the course of action in certain situations, provide information necessary to facilitate the commission of a crime, etc. While incitement is aimed specifically at creating conditions for the perpetrator under which he will give consent to participate in illegal actions, and then implements them.
Second commentary to Art. 33 of the Criminal Code of the Russian Federation
1. According to the law, the following types of accomplices in a crime are recognized: perpetrator, organizer, instigator and accomplice.
2. The perpetrator of the crime is:
1) direct executor, i.e. the person who directly committed the crime (who independently carried out the objective side of the crime);
2) co-executor, i.e. a person who directly participated in the commission of a crime together with other persons (who performed the objective side of the crime or part of it together with other co-perpetrators);
3) a mediocre performer, i.e. a person who has committed a crime through the use of other persons who are not subject to criminal liability due to underage, insanity or other circumstances, for example, in the absence of guilt or execution of an order.
3. The organizer of the crime is:
1) the person who organized the commission of the crime (who developed a plan to commit the crime, found accomplices, distributed roles between them, etc.);
2) the person who supervised the execution of the crime (gave instructions to other accomplices, coordinated their actions, etc.);
3) a person who created an organized group or criminal community (criminal organization) (who determined the directions of criminal activity, developed a close relationship between accomplices, distributed roles between them, united organized groups, etc.);
4) a person who led an organized group or criminal community (criminal organization) (developed an activity plan, organized logistics, determined methods for committing and concealing specific crimes, etc.).
4. An instigator is a person who has persuaded another person to commit a crime by persuasion (for example, requests, promises), bribery (providing or promising benefits of a property nature), threats (violence, destruction, damage or confiscation of property, blackmail) or other means (for example , inciting feelings of hatred, issuing a mandatory order or instruction). Incitement must be specific and aimed at inciting in certain persons the desire to commit a specific crime. Appeals, propaganda, justification or approval are not incitement.
5. An accomplice is a person who facilitated the commission of a crime by advice, instructions, provision of information, a promise given in advance to hide the criminal, means, instruments, traces of the crime, objects obtained by criminal means or a promise to acquire or sell such objects (intellectual or mental assistance), as well as a person who provided the means or instruments for committing a crime or removed obstacles to its commission (physical complicity).
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— Part 1 33 of the Criminal Code
accomplices: performer, organizer, instigator, accomplice
Executor
- Part 2 33 of the Criminal Code
who is recognized as the performer:
- Part 2 33 of the Criminal Code
or directly committed
- Part 2 33 of the Criminal Code
or participated with other persons (co-performer)
- Part 2 33 of the Criminal Code
or participated by using others
Organizer
- Part 3 33 of the Criminal Code
who is recognized as the organizer:
- Part 3 33 of the Criminal Code
organizer is someone who organized the commission of a crime
- Part 3 33 of the Criminal Code
or the one who supervised its execution
- Part 3 33 of the Criminal Code
or the one who created an organized group
Instigator
- part 4 33 of the Criminal Code
instigator is someone who incites another person to commit a crime
Accomplice
- Part 5 33 of the Criminal Code
who is recognized as an accomplice:
- Part 5 33 of the Criminal Code
accomplice
- Part 5 33 of the Criminal Code
or promised in advance to hide the criminal, the weapon (
Criminal Code 316
)
- Part 5 33 of the Criminal Code
or promised in advance to acquire what was obtained by crime (
Article 175 of the Criminal Code
)
Interrogation of accomplices
Interrogation of an accomplice
may not be possible if it affects him
ERRORS in qualifying a group of persons in a verdict
I). The Aiding Error
Complicity does not constitute
groups of people - a rule developed by practice
II). Error with co-executor
Co-executor determined
incorrect, error in qualifying a group of persons
Article 33 of the Criminal Code. Types of accomplices in crime
1) Along with the perpetrator, the following are recognized as accomplices to the crime:
- organizer,
- instigator
- accomplice.
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ERRORS in qualifying a group of persons in a verdict
The performer cannot
be alone: error when qualifying a group of people
2) The performer is the person:
- directly committed the crime,
- or directly involved in its commission together with other persons (co-perpetrators),
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— clause 13
Plenum No. 29 theft by manipulation of unauthorized persons
as well as a person who has committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances.
3) The organizer is the person:
- organized the commission of a crime,
- who supervised its execution,
- created an organized group or criminal community (criminal organization) or led them.
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- part 5 34 of the Criminal Code
if the instigator was unable to persuade, he is responsible for preparing
4) An instigator is a person who induces another person to commit a crime by:
- agreement,
- bribery,
- threats
- another way.
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ERRORS in qualifying a group of persons in a verdict
Complicity does not constitute
groups of people - a rule developed by practice
EXAMPLE (case No. 127-UD 19-8)
Example
— the qualifying feature “group of persons” is excluded
5) An accomplice is a person who assisted in the commission of a crime:
- advice, directions,
— providing information, means or instruments for committing a crime,
- removing obstacles,
Url Additional information:
— 316 CC
concealment of crimes
as well as a person who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means,
Url Additional information:
— 175 CC
purchase and sale of property obtained by criminal means
as well as a person who promised in advance to purchase or sell such items.
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Third commentary to Article 33 of the Criminal Code of the Russian Federation
1. Criminal legislation distinguishes the following types of accomplices: perpetrator, organizer, instigator and accomplice. This distinction is based on an objective criterion - the nature of the participation of the perpetrator in the commission of the crime. Such a classification makes it possible to give a specific legal assessment of the action (inaction) of each accomplice in the crime and, therefore, to maximally individualize their responsibility and punishment.
2. According to Part 2 of the commented article, the perpetrator is the person who directly committed the crime, i.e. committed an act containing signs of a specific crime provided for in the article of the Special Part of the Criminal Code of the Russian Federation. For example, a person who causes the death of another person with a pistol shot will be considered the perpetrator of a murder. A perpetrator is also recognized as a person who directly participated in the commission of a crime with other persons (co-perpetrators), in other words, who performed an act that is fully or partially covered by the characteristics of a specific crime provided for in the article of the Special Part of the Criminal Code of the Russian Federation. In case of robbery, the perpetrator will be not only the person who directly took the property from the victim (torn off the gold chain, took off the ring, took away the handbag), but also the person who, during the theft, exerted a mental or physical influence on the victim, paralyzing her will to resist. Two persons will be recognized as perpetrators of counterfeiting, one of whom counterfeited counterfeit money, and the other sold this money. The perpetrator of a crime is only a person who has reached the age of criminal responsibility and is sane and is capable of bearing criminal responsibility. That is why the perpetrators of a crime are also those who deliberately use those who, by virtue of the law, cannot bear criminal liability to achieve a criminal goal. In the theory of criminal law, this type of execution is called mediocre infliction. First of all, the law connects this type of performance with the use of the insane or minors in the commission of a crime, i.e. persons who essentially act as “living instruments” of crime. In such a situation, the perpetrator of the crime will be the person who puts a knife into the hands of a mentally ill person to kill, and a match into the hands of a minor to destroy someone else’s property. In this part, the law could be supplemented with an indication of the use by the perpetrator of animals or various mechanisms and objects to commit a crime. At the same time, there are other types of mediocre infliction. These include, in particular, the use of persons in the commission of a crime: a) acting in a state of extreme necessity; b) acting innocently; c) acting through negligence; d) not possessing the characteristics of a special subject.
3. One of the most dangerous participants in joint activities is the organizer of the crime. Part 3 of the commented article identifies the following types of organizers: 1) the person who organized the commission of the crime; 2) the person who supervised the execution of the crime; 3) a person who created an organized group or criminal community (criminal organization); 4) a person who led an organized group or criminal community (criminal organization). As a rule, the organizer acts as part of an organized group or criminal community (criminal organization). However, this does not exclude the presence of an organizer in less dangerous types of complicity. Thus, organizing the commission of a crime involves developing a plan for criminal activity, finding accomplices for its implementation, distributing roles between them, supplying them with the necessary weapons, documents, etc. Directing the execution of a crime is an activity related, for example, to placing accomplices at the scene of the crime, specifying or adjusting the actions of accomplices in the process of executing the crime. All this suggests that directing the execution of a crime is the second stage after the direct organization of the commission of a crime. Although, of course, these functions can be performed by different persons. The creation of an organized group or criminal community (criminal organization) involves the directed actions of a person, uniting accomplices into criminal associations specified in the law. First of all, a person persuades people to participate in such groups, unites them among themselves, sets appropriate goals for them, develops organizational connections, maintains discipline, etc. Responsibility for the implementation of the criminal goals of an organized group or criminal community (criminal organization) rests with the persons in charge of these associations directly during the commission of specific crimes. The organization of a crime can also be expressed in the form of financing the criminal activities of a criminal association. Taking into account the special danger of such manifestations of organizational activity, the legislator provided for independent liability for its implementation within the framework of the articles of the Special Part of the Criminal Code of the Russian Federation, in which the very fact of creating or leading such associations (for example, a gang or a criminal community) already forms the corpus delicti of a completed crime (Art. Art. 209 and 210 of the Criminal Code).
4. An instigator of a crime is a person who deliberately arouses in the mind of another person the determination to commit a specific crime. The means and methods of committing incitement can be very diverse. Their choice depends on the identity of the instigator and the instigated, their relationship, the nature of the alleged crime, etc. Most often, the instigator uses persuasion, bribery, threats, advice, and deception. In any case, they are always active. It is impossible to arouse in the minds of a person the determination to commit a crime through passive behavior. It should, however, be emphasized that by using various methods of influence, the instigator evokes the determination to consciously decide to commit a crime. Otherwise, there is no incitement, and we can only talk about mediocre infliction. For example, a person, inciting a crime, uses physical violence, which causes a state of extreme necessity in the instigated person. Incitement is possible in relation to a specific person and is aimed at committing a specific crime, and not at engaging in criminal activity in general. Incitement should be considered completed from the moment when the determination to commit a specific crime arose in the mind of the person. If this does not happen, then the behavior of such an instigator should be assessed as preparation for a crime. The actions of an instigator are also qualified as preparation when a person, having agreed to commit a crime, subsequently abandons his decision and does not commit criminal acts. From the subjective side, incitement is always committed intentionally. It does not matter what motives the instigator had. The instigator differs from the perpetrator in that he does not directly participate in the commission of the crime. If a person not only persuaded someone to commit a crime, but also took part in it as a perpetrator, then he is subject to liability as a perpetrator. Of course, this circumstance will be taken into account when determining the nature and extent of his participation in the commission of a crime, and, consequently, when assigning a fair punishment to the perpetrator. The instigator should also be distinguished from the organizer of the crime. Thus, unlike the organizer, the instigator does not develop a plan for criminal activity, does not distribute roles among accomplices, and does not provide leadership in the execution of the crime. His role is to persuade a person to commit a crime. 5. An accomplice is a person who assists the perpetrator in committing a specific crime. Depending on the choice of methods and means of providing assistance in committing a crime, two types of assistance are distinguished: intellectual and physical. Physical complicity includes actions that help the perpetrator to carry out the objective side of the crime. Such actions can be expressed in providing the perpetrator with the necessary means to commit a crime (for example, providing a car to commit theft of property on a large scale); in removing obstacles to the commission of a crime by the perpetrator (for example, leaving a warehouse where material assets are stored open by a storekeeper for their subsequent theft). Intellectual assistance is expressed in providing the perpetrator with the necessary information, giving advice on how to commit a crime, avoid arrest, hide from prosecution, etc. From the subjective side, complicity in a crime is characterized only by direct intent. Although there are opinions that intent may be indirect, this position seems to us untenable. The perpetrator is aware of the nature of the crime being prepared, foresees the possibility of harmful consequences and desires the occurrence of these consequences (material composition). With a formal composition, the accomplice is aware of the illegality of his actions and the actions of the perpetrator and desires their commission.
As with incitement, the motives and goals of the accomplice and the perpetrator may be different in content.
An accomplice differs from an instigator in that by his behavior he does not arouse the determination of the other accomplice to commit a crime, but only strengthens such determination, since it arises before the commission of complicity. An accomplice differs from an organizer in that he does not act as an initiator and inspirer of a crime and his activities are not characterized by the versatility and other features of the organizer’s criminal behavior described above. Failed complicity, when the person’s assistance remains unclaimed, does not constitute complicity. In this case, the person is subject to responsibility for preparing for the crime, the commission of which he sought to assist. ‹ Article 32. The concept of complicity in a crimeUp Article 34. Responsibility of accomplices in a crime ›
Article 33. Types of accomplices in a crime
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- Article 33. Types of accomplices in a crime
1. Along with the perpetrator, the organizer, instigator and accomplice are recognized as accomplices to the crime.
2. A perpetrator is a person who directly committed a crime or directly participated in its commission together with other persons (co-perpetrators), as well as a person who committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances provided for by this Code. .
3. An organizer is a person who organized the commission of a crime or supervised its execution, as well as a person who created an organized group or criminal community (criminal organization) or supervised them.
4. An instigator is a person who persuaded another person to commit a crime by persuasion, bribery, threat or other means.
5. An accomplice is recognized as a person who assisted in the commission of a crime by advice, instructions, provision of information, means or instruments for committing a crime or removing obstacles, as well as a person who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, and equally a person who promised in advance to purchase or sell such items.
Commentary on Article 33
In Art. 33 of the Criminal Code of the Russian Federation regulates the issue of types of accomplices to a crime, which are determined depending on the nature of their actions performed during the commission of a crime. Depending on this indicator, the law classifies participants in a crime into the following types: perpetrator, organizer, instigator, accomplice.
Performers
persons are recognized:
a) those who directly committed the crime (i.e., those who fulfilled the objective side of the crime);
b) directly involved in the commission of a crime (i.e., those who performed the objective side of the crime or part of it) together with other persons (co-perpetrators). Speaking about direct participation in the commission of a crime, attention should be paid to the fact that this is not only the personal and direct performance of actions that form the objective side of the crime, but also the commission of a crime as part of an organized group, when the actions of all accomplices, regardless of their role in deeds are subject to qualification as co-perpetrator without reference to Art. 33 of the Criminal Code of the Russian Federation;
c) those who have committed a crime through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances (for example, due to the absence of guilt or the form or type of guilt that is necessary to qualify the act under the relevant article of the Criminal Code of the Russian Federation) (direct infliction) . Thus, if a person has committed theft through the use of other persons who are not subject to criminal liability due to age, insanity or other circumstances, the actions of this person who organized the crime or persuaded these persons to commit a crime, in the absence of other qualifying criteria, should be qualified under Part 1 of Art. . 158 of the Criminal Code of the Russian Federation as the direct perpetrator of the crime (Part 2 of Article 33 of the Criminal Code of the Russian Federation).
Indirect fulfillment of the objective side of the crime (indirect infliction) may also occur in some other cases. Thus, the Plenum of the Supreme Court of the Russian Federation in paragraph 20 of Resolution No. 6 of May 27, 2008 “On judicial practice in cases of smuggling” explained: “In cases where a person who has the right to own and use goods in the customs territory of the Russian Federation, actually carried out their movement across the customs border of the Russian Federation in the ways listed in Part 1 of Article 188 of the Criminal Code of the Russian Federation, through a figurehead (for example, through an unemployed person who was formally indicated in the constituent documents as the head of an organization performing legally significant actions with goods under customs control) control), his actions should be qualified under Article 188 of the Criminal Code of the Russian Federation as the actions of the perpetrator of this crime, and the actions of another person, by virtue of Part 4 of Article 34 of the Criminal Code of the Russian Federation - as his accomplice, if he was aware that he was participating in the commission of smuggling, and his intent covered the commission this crime."
In some cases, the actions of the person who gave the order aimed at committing a crime by his subordinates are also assessed in the same way as the actions of the perpetrator. Thus, “an official or a person performing managerial functions in a commercial or other organization, who suggested that an employee subordinate to him in service, in order to achieve the desired action (inaction) in the interests of his organization, give a bribe to an official, is liable under the relevant part of Article 291 of the Criminal Code of the Russian Federation as a performer crimes, and the employee who carried out his instructions - as an accomplice in giving a bribe" <1>. The issue is resolved in a similar way when transferring the subject of bribery to a person performing managerial functions in a commercial or other organization. Attention should be paid to the fact that it is proposed to evaluate the actions of the employee who carried out the assignment as the actions of another accomplice (not the performer), although such fulfillment of the assignment forms the objective side of the relevant crime, which, on the basis of Part 2 of Art. 33 of the Criminal Code of the Russian Federation should be assessed as the actions of the performer.
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<1> See: paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery” // Bulletin of the Supreme Court of the Russian Federation. 2000. N 4.
If a person does not directly or indirectly fulfill the objective side of the crime, he cannot be recognized as a perpetrator. Thus, “the actions of a person who was not directly involved in the theft of someone else’s property, but who contributed to the commission of this crime with advice, instructions, or who promised in advance to hide traces of the crime, to remove obstacles not related to providing assistance to the direct perpetrators of the crime, to sell the stolen property, etc., must be qualify as complicity in the act in the form of aiding and abetting with reference to part five of Article 33 of the Criminal Code of the Russian Federation" <1>.
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<1> See: paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2002 N 29 “On judicial practice in cases of theft, robbery and robbery” // Bulletin of the Supreme Court of the Russian Federation. 2003. N 2.
According to Part 3 of Art. 33 of the Criminal Code of the Russian Federation by the organizer
the person admits:
a) who organized the commission of a crime;
b) who supervised its execution;
c) created an organized group or criminal community (criminal organization);
d) who led an organized group or criminal community (organization).
Organization
committing a crime is expressed at a minimum in planning the criminal actions of other accomplices, giving them instructions that they agree to carry out. For example, simply paying for a contract killing will not be organizing a crime, but inciting it to be committed.
Management
committing a crime or a group (community, organization) involves the subordination of the accomplices (part of them) to the will of the organizer. The creation of an organized group or criminal community (organization) is understood as the commission of any actions that resulted in their formation (conspiracy, search for accomplices, etc.).
A person who has created an organized group or criminal community
(organization) or
who led them
is subject to criminal liability for all crimes committed by this group (community, organization) that were covered by his intent (Part 5 of Article 35 of the Criminal Code of the Russian Federation). At the same time, however, the Supreme Court of the Russian Federation in paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 10, 2008 No. 8 “On judicial practice in considering criminal cases involving the organization of a criminal community (criminal organization)” explained that the actions of such an organizer should be qualified as “ without reference to Part 3 of Article 33 of the Criminal Code of the Russian Federation,” i.e. as the actions of the performer. Thus, the Supreme Court of the Russian Federation considers “a person who created an organized group or criminal community (criminal organization) or led them” not as an organizer (as is expressly stated in Part 3 of Article 33 of the Criminal Code of the Russian Federation), but as a perpetrator of a crime .
In a number of cases, when establishing the type of accomplice in a crime, law enforcement agencies do not always correctly determine the functional role that persons perform when committing a crime together. Thus, when qualifying the actions of an accomplice, which include signs of an instigator and an organizer, the following should be kept in mind. The main difference between an organizer and an instigator is that the latter does not plan the commission of a crime and does not direct its preparation or commission. In those cases where a person not only persuaded another person to commit a crime, but subsequently also carried out organizational actions, the actions of an accomplice should be qualified only as organizational, since in their essence they are more dangerous than incitement. Organizing a crime involves actions aimed at inducing another person to commit a crime.
Instigator
is recognized as a person who has persuaded another person to commit a crime by persuasion, bribery, threat or other means. Thus, incitement is an active action aimed at arousing in a person the desire to commit a crime. Endorsement of any action cannot be qualified as incitement. It is impossible to commit incitement by omission.
The law provides only an approximate list of methods of incitement. It is impossible to list them all, since they are diverse and are applied depending on the specific situation, the properties and characteristics of a particular person inclined to commit a crime. The most common methods of incitement are persuasion, deception, and threats. But incitement can also be carried out, for example, by issuing instructions or orders that are mandatory for execution by a certain person, for example a military serviceman.
Incitement can only be carried out in relation to a specific crime. General calls to commit crimes cannot be considered incitement.
In all cases, the instigator acts with direct intent. His consciousness covers the nature of his actions, the actions that a person inclined to commit a crime must perform, and the causal relationship between his own actions and the emergence of another person’s desire to commit a crime. Reckless incitement is possible in principle, but it does not constitute a crime. Thus, if a subject boasts that he has achieved material well-being by committing crimes, but does not have the intention of inciting a desire to commit a specific crime, then his actions can certainly contribute to the formation of a desire to commit a crime, but such actions are not criminally punishable.
In a number of cases, the legislator attaches independent significance to incitement, establishing independent criminal liability for specific types of incitement. For example, Art. 150 of the Criminal Code of the Russian Federation establishes liability for involving a minor in the commission of a crime, Art. 205.1 of the Criminal Code of the Russian Federation - for facilitating terrorist activities, which may include incitement to commit a crime.
Accomplices
persons are recognized:
a) those who assisted in the commission of a crime by advice, instructions, provision of information, who promised in advance to hide the criminal, means or instruments of committing a crime, traces of a crime or objects obtained by criminal means, as well as to acquire or sell such objects (intellectual assistance);
b) assisted in the commission of a crime by providing means or instruments for committing a crime (physical complicity);
c) contributed to the commission of a crime by removing obstacles (can be either intellectual or physical).
It is customary to distinguish between two types of complicity - physical and intellectual. The first type includes the actions of an accomplice, aimed at facilitating the execution by the perpetrator of the objective side of the crime through physical actions, provision of tools and means of committing it. Intellectual complicity consists of actions aimed at the mental side of the act: strengthening the determination to commit a crime, finding ways to perform the most effective actions. Forms of intellectual complicity include giving advice, instructions on committing a crime, information support for the actions of the perpetrator, pre-promised concealment or connivance (as the removal of obstacles).
Complicity is possible with both direct and indirect intent. The consciousness of an accomplice covers both his own actions and their results, and the act of the perpetrator; it is necessary to understand the consequences of committing a crime (at least in a generalized form) and the desire or conscious assumption of the possibility of their occurrence. The motives and goals of the accomplice and the perpetrator may not coincide.
It should be taken into account that the pre-promised concealment, acquisition or sale of items obtained by criminal means
, is not physical, but intellectual complicity. Complicity constitutes the very promise to perform the actions specified in the law. The actual fulfillment of this promise and even the intention to fulfill it is not required to qualify the act as complicity.
The law provides an exhaustive list of acts that constitute complicity. The law does not consider any other assistance in committing a crime as aiding and abetting. For example, a pre-promised failure to report (if the person was not obliged to report or otherwise prevent the commission of a crime) or assistance to a criminal by supplying him with food necessary to maintain strength during the commission of a crime is not complicity.
An exhaustive list of forms of complicity, enshrined in Part 5 of Art. 33 of the Criminal Code, entails problems in judicial and investigative practice, which are resolved through a broad interpretation of the law.
Thus, the systematic acquisition of items obviously obtained by criminal means is in practice equated to a pre-given promise to acquire them and is qualified as complicity in a crime (see, for example, paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998 No. 14 “On the practice of application by courts of legislation on liability for environmental offenses”).
In a number of cases, the actual performance of the objective side of the crime by an intermediary is considered as complicity, which, according to the letter of the law, should be considered as the actions of the perpetrator. In particular, paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 No. 6 states: “Courts should keep in mind that the criminal liability of an intermediary in bribery, depending on the specific circumstances of the case and his role in giving or receiving a bribe occurs only in cases provided for in Article 33 of the Criminal Code of the Russian Federation.” But at the same time, the actions of the intermediary often consist in the fact that he fulfills the objective side of the crime under Art. 291 of the Criminal Code of the Russian Federation - transfers the subject of the bribe to the official. Such actions are not covered by Part 5 of Art. 33 of the Criminal Code of the Russian Federation in its literal interpretation, but in practice they are qualified as actions of an accomplice.
Problems also arise when classifying crimes with a special subject, the objective side of which was carried out by persons who do not possess the characteristics of a special subject. For example, there is no uniformity in the qualification of the act in the event of violent acts against a superior (crime against military service, provided for in Article 334 of the Criminal Code of the Russian Federation), when violence is used jointly by a military personnel and another person who is not a military personnel. On the one hand, a person who is not a military personnel does not have the characteristics of a special subject of this crime. Therefore, it is proposed to qualify his act as complicity. But it is obvious that the act of the person who directly used violence, i.e. who actually fulfilled the objective side of the crime, encroaching on the identity of a serviceman, under none of the forms of complicity listed in Part 5 of Art. 33 of the Criminal Code of the Russian Federation does not fall under. Therefore, the qualification of what he did under Part 5 of Art. 33 of the Criminal Code of the Russian Federation cannot be acceptable. It seems that in such situations, each person, in accordance with Part 2 of Art. 33 of the Criminal Code of the Russian Federation must be held accountable as a perpetrator for the crime of which he is the subject. This conclusion does not contradict the provisions of Part 4 of Art. 34 of the Criminal Code of the Russian Federation, which defines the grounds for bringing to criminal liability other than perpetrators, accomplices who are not subjects of the crime committed. It seems that this approach is more correct, although it suffers from certain shortcomings.
