Complicity in the commission of a crime is a type of participation, expressed in the commission of certain actions (inaction), implying both physical and intellectual participation, even without direct presence at the place of commission of illegal actions. Article 33 of the Criminal Code of the Russian Federation (Part 5) establishes that responsibility for involvement in a crime will depend on the degree of participation of each person in accordance with the current legislation of the country for the totality of all crimes covered by the intent of each person individually.
Other accomplices
Article 33 of the Criminal Code, in addition to complicity, identifies several other types of involvement in a crime:
- execution - a person commits certain illegal actions aimed at fulfilling a criminal intent independently or through other participants;
- organization - coordinating the actions of group members, distributing roles, developing a plan, etc.;
- incitement - involving other persons in criminal activities in various ways: offering a share of the stolen property, persuasion, threats, etc.;
- complicity - organizing assistance in committing a crime through advice, recommendations and other means.
Complicity is somewhat different from other forms of complicity in that it has the smallest role directly in fulfilling the objective side, i.e. an accomplice can only know that a crime is being committed and not consciously resist its commission due to receiving a certain benefit.
Complicity as a form of complicity
The article for complicity presupposes the following types of complicity:
note
An intellectual accomplice will bear appropriate liability only if his advice and other assistance were used in the commission of criminal acts.
- the criminal assists with instructions, advice, recommendations, providing certain information (intellectual accomplice), or removes obstacles and barriers that prevent the rapid commission of a crime and concealment of its traces (physical accomplice);
- concealment of other criminals, stolen property and other objects of crime, means by which the crime itself was committed;
- assistance in the sale of items obtained by criminal means, or their acquisition.
Complicity is recognized as a complex form of participation in a crime, i.e. there is the participation of several persons with a pre-promised distribution of roles (performer, organizer, accomplice).
If a person knows about a crime, but does not participate in it and does not receive any benefit, he cannot be classified as an accomplice. Verbal support of intentions to participate in a crime is also not considered complicity. For example, if your friend knows that you want to rob a warehouse, his knowledge will not be qualified as complicity. It’s another matter when the guard guarding this warehouse has such knowledge. The role of the watchman must be thoroughly studied and qualified according to a certain part of Article 33 of the Criminal Code.
The corpus delicti – complicity in murder
The object of such an offense is human life. At the same time, legal science reflects both aspects of this concept: both the physiological process itself and the opportunity provided by law for a citizen to exist in society on equal rights with its other members.
Important! Euthanasia is not allowed on the territory of the Russian Federation, so it will also be regarded as murder, even if the deceased himself left evidence that, due to his serious illness, he himself wanted to die.
The objective side means:
- An action or inaction that resulted in the death of a person.
- The final result of the incident was the death of the citizen.
- There is a cause-and-effect relationship between both of the above events.
If we talk about the subjective side, then there can be both direct and indirect intent in the actions of the criminal.
In the first case, the citizen has set himself the goal of killing another person, and in the second, the perpetrator may not want the death of another person, but he is fully aware that through his actions or inaction he is contributing to this.
The subject of the offense is a sane citizen who has reached the age of 14 at the time of the crime.
Liability for aiding and abetting
The amount of punishment for accomplices, as well as other participants in the crime, is calculated depending on the degree of participation of each person in illegal activities.
Among the features of the qualification of acts committed in a group with a distribution of roles, the following can be noted:
- The performer and co-performers are responsible for all acts committed by them in accordance with the qualification rules under the relevant article of the Special Part of the Criminal Code of the Russian Federation. No additional reference to Article 33 of the Criminal Code is required;
- accomplices, organizers and instigators are liable under the article of the Special Part of the Criminal Code, to which their involvement is directly established, with reference to the relevant part of Article 33 of the Criminal Code;
- if for some reason the perpetrator did not complete his intention, then the remaining persons involved in the implementation of the objective side of the crime must bear responsibility for the preparation or attempted crime. You can read about the attempted fraud here;
- if the perpetrator voluntarily refused to commit a crime, then the remaining participants bear responsibility in accordance with the actions that they committed;
- if there was an excess (action error) of the performer, i.e. obvious going beyond what was agreed upon by the group’s accomplices (committing murder during theft, if the agreement was only for theft, etc.), then only the direct perpetrator is responsible for his actions. Other persons are liable only for those acts that were covered by their intent.
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 ›
Arbitrage practice
Judicial practice in cases where there were several participants playing different roles is quite extensive. Each individual criminal case requires careful analysis and establishment of the share of participation of each person in the overall case.
It must be borne in mind that assisting one person in committing a crime will not be considered the commission of a crime by a group of persons.
Thus, an excellent example of incorrect practice can be the verdict of the Moskovsky District Court (Kaliningrad), where citizen S. was convicted of committing acts of complicity with her husband K. in the illegal sale of a narcotic drug by prior conspiracy by a group of persons. When pronouncing the sentence, the judge did not take into account that the crime itself and the evidence collected during the preliminary investigation did not indicate that S. was assisting a group of people, but only spoke of aiding S. alone.
Under such circumstances, set out in the materials of the criminal case and in the verdict of the court of first instance, the cassation court recognized the erroneous classification of the actions as a group of persons guilty on the basis of a preliminary conspiracy and excluded this criterion from the conviction.
