Features of persons with leadership status in the criminal environment

Novozhilov Sergei Sergeevich Postgraduate Student, Department of Criminal Law, Moscow State Law University named after Kutafin O.E. 125993, Russia, Moscow, Sadovaya-Kudrinskaya str., 9 sbtantiterror@gmail.com Other publications by this author

With the adoption of Federal Law No. 46-FZ dated April 01, 2019 "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation in Terms of countering organized Crime", the legislator set a course to toughen penalties for crimes committed by members of criminal communities (criminal organizations) and persons occupying the highest position in the criminal hierarchy. The sanction of the criminal law norm provided for in Part 4 of Article 210 ^of the Criminal Code of the Russian Federation was tightened, the norm on participation in the meeting of representatives of the criminal associations in question was separated into an independent part, the fact that a person occupies a higher position in the criminal hierarchy was criminalized as an independent corpus delicti (Article 2101 of the Criminal Code of the Russian Federation)^[1]. All these factors put the task of combating organized crime among the most significant functions of the state, which makes the topic under study the most relevant at the present time. The subject of the study is the criminological features of persons with leadership status in the criminal environment of Russia. The methodological apparatus of scientific research consists of modern methods of scientific cognition: historical, formal-logical, legal-technical, formal-dogmatic, comparative jurisprudence. In the course of the research, such scientific methods and techniques as deduction, modeling, systematization and generalization were applied. The work used a combination of theoretical and empirical information. The scientific novelty of the work is connected primarily with the author's attempt to assess the structural elements of the criminal hierarchical system operating in the Russian Federation, to determine the place of persons with status leadership in it, as well as to understand the definition of the main definitions having an evaluative character.

Theoretical and applied and criminal law issues related to the existence of a criminal hierarchy in Russia and persons occupying the highest position in it (having status leadership) are reflected in the works of E.A. Antonyan, P.V. Agapov, A.V. Brilliantov, S.V. Bondarenko, S.V. Kondratyuk, V.N. Kudryavtsev, A.N. Mondokhonova, I.V. Pikina, P.A. Skoblikova, T.V. Stukalova, V.E. Eminova. However, there are practically no comprehensive monographic studies devoted to the problems of the formation and functioning of the criminal hierarchy in Russia and the presence of persons with status leadership in it. Some scientists believe that the provisions of Article 2101 of the Criminal Code of Russia correspond to the current state of organized crime^[2]. In the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 10, 2010 No. 12 "On judicial practice of consideration of criminal cases on the organization of a criminal community or participation in it (her)", an attempt was made to clarify the content of the concept of "the highest position in the criminal hierarchy". In particular, paragraph 24 of the resolution of the Plenum No. 12 clarifies that resolving the issue of the subject of the crime of Part 4 of Article 210 of the Criminal Code of the Russian Federation, it is necessary to establish his position in the criminal hierarchy.

At the same time, the specified resolution of the Plenum does not contain specific definitions of the above definitions, which creates certain problems in law enforcement practice, since a uniform approach to their interpretation has not yet been developed. Moreover, due to the small number of law enforcement practices under Part 4 of Article 210 and Article 2101 of ^the Criminal Code of the Russian Federation, neither the criminal law nor the Resolutions of the Plenum of the Supreme Court of Russia contain explanations of most of the terms used in these articles. In particular, such concepts as "criminal hierarchy", "superior position" are evaluative in nature and are interpreted differently by the courts of the first and appellate instances. The lack of a unified approach to the definition of these concepts and the meaning of terms such as "thief in law", "poser", "looker" significantly reduces the effectiveness of the application of Part 4 of Article 210 and Article 210 ¹ of the Criminal Code of the Russian Federation, since it is unclear which of these persons are the subjects of these crimes and occupy the highest position in the criminal hierarchy.

 How should law enforcement and court practitioners determine the highest position of the subject in the "criminal hierarchy"?

V.S. Ishigeev, N.L. Romanova, V.L. Lapsha, as well as the well-known criminologist L.M. Prozumentov, believe that without the implementation of a special criminological, socio-psychological research without the criminals themselves and the criminal environment, this is not possible^[3].

In practice, there are problems with the definition of the subject of the crime provided for in Article 2101 of the Criminal Code of the Russian Federation. After all, in the "thieves", as well as the "penitentiary" segment of the criminal hierarchy of Russia, persons of the category "thief in law" (hereinafter referred to as the VVZ), authorities of the criminal environment who do not have the status of the VVZ, as well as "positioners", "watchers", "holders of thieves' common stock" are initiated on a permanent basis.

         Which of these persons occupies the highest position in the criminal hierarchy?

This issue is debatable in the science of criminal law and criminology.

Representatives of the classical school of criminal law point to the problems of law enforcement related to the evaluative content of these provisions of Article 2101 of ^the Criminal Code of the Russian Federation^[4]. Considering that it is not about the signs of the corpus delicti, but about the signs of the criminal's identity.

      If we resort to grammatical and systematic interpretation, then the word "higher" can be defined as a superlative from the adjective "high", from which, according to P.A. Skoblikov, it follows that in the criminal hierarchy that the legislator has in mind, there is a step "higher" (main), as well as located below the "high" step (above most, but not the highest) and the rest, further down. Consequently, the criminal hierarchy referred to in Part 4 of Article 210 ^of the Criminal Code of the Russian Federation and Article 2101 of the Criminal Code of the Russian Federation must have at least four gradations: lower, middle, high and highest^[5].

Therefore, the question arises at what stage of the criminal hierarchy are certain persons and which of the representatives of the criminal environment occupies the highest position there.

A number of authors believe that persons occupying the highest position in the criminal hierarchy, first of all, should include "thieves in law", "posits" and "lookers-on"^[6].

Other experts believe that only "thieves in law" belong to persons occupying the highest position in the criminal hierarchy, and "positioners" and "watchers" are special subjects provided for in Part 1 of Article 210 of the Criminal Code of the Russian Federation^[7].

S.A. Kutyakin adheres to the opposite opinion of these authors, arguing that responsibility for occupying the highest position in the criminal hierarchy is subject, along with "thieves in law", and "positioners" and "watchers", and Part 1 of Article 210 of the Criminal Code of the Russian Federation should be incriminated to "authorities of a lower class"^[8].

A.Y. Grishko, appealing to the experience of Georgia, suggests adding a note to Article 210 of the Criminal Code of the Russian Federation, which would define the concept of a person occupying the highest position in the criminal hierarchy. He notes that other persons may also be liable under Part 4 of Article 210 ^of the Criminal Code and Article 2101 of the Criminal Code if they do not belong to the listed groups, but, according to law enforcement agencies and the court, occupy the highest position in the criminal hierarchy, considering that the list of such persons cannot be closed^[9].

In order to occupy the highest position in the criminal hierarchy, it is not necessary to have the criminal status of "thief in law", "poser" or "looker".

In the history of the criminal world, there are many cases when a person occupied the highest position in the criminal hierarchy, being the leader of a criminal community organized by him (hereinafter-OPS).

P.A. Skoblikov rightly notes that "there are no grounds in the criminal law for a restrictive interpretation of the circle of subjects of the crime provided for in Part 4 of Article 210 of the Criminal Code of the Russian Federation, so that only the leaders of the "thieves' community" fall into it. There are no criminological prerequisites for this either. It is unlikely that anyone will be able to justify that the head (or their group under the collective leadership) of a criminal community, which includes the first persons of the executive and legislative authorities of the subject of the Russian Federation, who have a powerful administrative resource, control the financial flows of the region, by virtue of their official position, having a significant influence on law enforcement agencies and courts, are less dangerous and they are less influential than the leaders of the "thieves' community" (who, as a rule, have previous convictions and are under more or less tight control of law enforcement agencies)."^[10]

A person can be a "thief in law", for example, to make an appropriate amount of money to the "community" and buy a status, such cases are known in history when the so-called "oranges", "lavrushniki" were crowned for money by previously convicted persons who had not been in prison for a single day. In fact, after such a "coronation", they acquired the status of "thief in law", but they had no weight in the criminal environment, did not create criminal communities (organizations), did not manage criminal groups and their structural units, did not coordinate criminal actions, did not live a life of thieves.

It is not uncommon for a person who is a "thief in law" to be "debunked" for committing an act discrediting honor and dignity, deprived of his status at a thieves' meeting. At the same time, if there is not enough "thieves' mass" (the number of delegates) at the specified thieves' meeting, other persons of the "thief in law" category may not consider it legitimate and continue to recognize the status leadership for the specified person.

As an example, we can cite the "thieves' run" in relation to the "thief in law" T.G. Oniani, born on 06/02/1952, the criminal nickname "Taro", who is the leader of the "Kutaisi criminal group", who was repeatedly declared "not a thief".

There are also cases when the criminal status of a person of the "thief in law" category is "frozen" before a decision is made by a thieves' meeting, at the specified time the person actually occupies a neutral status, he has authority and weight in the criminal environment, is able to solve certain issues, but the status of "thief in law" in relation to him is suspended.

In addition, a person may be "uncrowned" and not have the status of a "thief in law", but occupy the highest position in the criminal hierarchy of the current criminal community.

As an example, we can cite A.V. Severov, born on 04/25/1959, the criminal nickname "Sasha Sever", who is a legend of the criminal world.

While serving his sentence in the Federal Penitentiary Institution T-2 of the Federal Penitentiary Service of Russia in the Vladimir region in 1993, a "thieves' approach" was made to him by persons with leadership status in the criminal environment, R.G. Tsitsishvili ("Tsitska"), R.V. Bukhnikashvili ("Petso"), S.A. Boytsov ("Fighter"), who at the so-called "thieves' meeting" assigned Severov a status position in the criminal hierarchy, in accordance with the ceremony established in the criminal community and the subsequent notification of the results to a wide range of interested persons. For more than 20 years of his life, Alexander Severov was a crowned "thief in law" and was responsible for the "thieves' move" in the Tver region. In 2014, at one of the thieves' gatherings, Sergei Volkov, criminal nickname "Wolf", Yuri Pichugin ("Pichuga"), Vasily Khristoforov ("Vasya has Risen"), made a joint decision to "uncrow" Severov. There must be very good reasons for removing the crown. And they were provided. The "North" was accused of the incorrect distribution of the "thieves' commissary". He was accused of sending unjustifiably small amounts to the All-Russian "thieves' commissary", and spending the remaining money for other purposes. The second accusation was that he communicates with journalists and gives interviews on topics that are not accepted to advertise in the thieves' community. The third accusation was made on the topic of his drug use. But the loudest accusation was that he filed a claim in order to obtain material damage, which goes against the concepts established in the "thieves' segment" of the criminal community. A theoretical question arises, can a person like Alexander Severov, after "uncrowning", lead an organized criminal community and occupy the highest position in the criminal hierarchy of the criminal organization led by him?

Of course it can. "Uncrowning" does not entail the loss of his criminal authority, earned over the years by impeccable "thieving behavior" and compliance with all the requirements of the thieves' subculture.

Now consider the following question: "Are the "poser", "looker", "holder of the thieves' commissary" persons occupying the highest position in the criminal hierarchy?" 

A.Y. Grishko believes that these persons are occupying the highest position in the criminal hierarchy^[11].

We can partially agree with this position, because, in our opinion, not every "poser", "looker", "holder of a thieves' commissary" occupies the highest position in the criminal hierarchy.

In the appellate ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 29.05.2018 No. 51-APU 18-4 (criminal case against M.A. Chkadua), the court thoroughly investigated the question of the meaning of the criminal concepts of "thief in law", "poser", "looker", "criminal hierarchy", which was of great importance to establish the actual circumstances of the case and the legal assessment of the actions of the convicted.

A "thief in law" is a person who occupies the highest position in the criminal hierarchy, and therefore has an indisputable authority in the criminal world with all its representatives below him.

"Posenets" is the main person in the criminal world in the territory of a particular region, put by "thieves" ("thief"), is in fact a trusted person of the thief, acts on his behalf. In this regard, all the "criminal people" in the specified territory should treat him with respect.

A "looker" is a person who was chosen by the local "criminal administration" (i.e., the structure) as the main one in a particular territory (city, district), that is, responsible for everything that happens on "his" territory^[12].

In the Resolution of the Vologda Regional Court No. 2-2/2021 (2-11/2020) dated 02.12.2021 on the case against the "thief in law" N.D. Jinchvelashvili, the court determined the content of the key terms used during the court hearing. In particular, he defined the "criminal hierarchy" as an established system of relationships between persons who have committed a crime, depending on their status, that is, a certain order of subordination of the lower elements of this system to the higher ones. Further, he pointed out that the "holder of the thieves' common fund" is a person authorized by the leaders of the criminal environment for the responsible storage and distribution of a set of material resources, financial resources accumulated, controlled and distributed in the interests of the criminal world or its representatives.

Let's look into the criminological content of these concepts.

The "poser" is appointed by the "thief in law" and he is responsible to the thief, most often, the "poser" is appointed responsible for the order in places of deprivation of liberty. Not every "poser" has real power, moreover, posers are not equal to each other in their status and authority in the criminal environment, a "poser" can be removed by a thief who "put him in a position", or he can be removed by the decision of a thieves' meeting if he commits actions discrediting him honor and dignity, will allow lawlessness or innocent blood will be shed through his fault. He has a temporary status, unlike a "thief in law", whose status leadership is lifelong.

Moreover, the "positioners" are persons serving sentences in places of deprivation of liberty, where they are "put in a position", after their release, such a person loses his status, and on the outside he may not enter the current criminal hierarchy at all and not occupy the highest position in it, since the structure of the criminal hierarchy on the outside and the criminal hierarchy in places of deprivation of liberty (prison hierarchy) are not identical.

 In addition, there is always a "thief in law" above the "poser", who occupies a higher place in the criminal hierarchy, since the "poser" is responsible to him and is bound to him by the framework of strict criminal subordination. A "poser" cannot sign a "thief's run" and act on his own behalf, always acting on behalf of a "thief in law".

As for the "looker", his criminal-legal status is even more "blurred" than that of the "layman". Unlike the "poser", the "looker" can also be appointed by the "bratva" and, therefore, he will be responsible to her, and the "poser" is always appointed by the "thief in law".

In addition, the criminal status of the "beholder" implies its division into types. For example, "watching the game", "watching the general".

Can a "looker" behind the game, limited by strictly assigned functions, occupy the highest position in the criminal hierarchy? Obviously not. The analysis carried out allows us to conclude that persons of the category of "poser" and "looker", as well as "holder of thieves' commissary", except in cases when they are the leaders of organized criminal communities (criminal organizations) those who have a multilevel hierarchical system in their structure, which has a higher position in its composition, are persons who occupy not a higher, but a "high" position. In other words, persons of this category are in the criminal hierarchy lower than the "thief in law" and therefore the subjects of crimes provided for in Part 4 of Article 210 and Article 2101 of ^the Criminal Code of the Russian Federation are not.

         The most important point continues to be the question, can a person who is a "thief in law", whose status is the highest in the thieves' segment of the criminal hierarchy, not occupy the highest position?

 There are many "thieves in law" who are at an advanced age, including those who are disabled, who were crowned back in Soviet times and have retained their criminal status (their thieves' name) to this day, but due to their state of health are unable to manage a criminal community (criminal organization) and, moreover, to occupy the position of a leader there, which, of course, requires tremendous dedication (in other words, they cannot fulfill the objective side of the crime).

A person who is at an advanced age is physically not always able to solve such issues and take responsibility, therefore, due to the loss of his capabilities, he is physically unable to occupy the highest position in the criminal hierarchy, although the status of a "thief in law" remains with him.

In addition, a person can gradually retire from business, but, due to his impeccable behavior, compliance with all standards of behavior of the thieves' subculture, does not lose his status, can such a person occupy the highest position in a multi-stage criminal hierarchy, carrying out a continuous struggle for the spheres of criminal influence?

Obviously not.

         Therefore, it can be concluded that not every person, even those who have the status of VVZ, is a person occupying the highest position in the criminal hierarchy.

With regard to persons who occupy the highest position in the criminal hierarchy and are on the outside, it should be noted that they are not identical to "thieves in law", "posits" and "lookers".

In the history of Russian criminality, there are many cases when a person actually occupied the highest position in the criminal hierarchy, but at the same time did not have the status of an air Force, moreover, there are cases when such a person has never even been brought to criminal responsibility (being the leader of an organized criminal community that created itself).

 As an example, we can cite the leaders of the so-called "Orekho-Medvedkovsky" organized criminal group (hereinafter -the organized criminal group) operating on the territory of the Moscow region from 1988 to 2000.

The founder and leader of the "Orekhovo-Medvedkovsky" organized criminal group was S.I. Timofeev, born on 18.07.1955, criminal nickname "Sylvester".

Timofeev has never been crowned, has never had the status of a "layman" or a "looker", but, despite this, he had a huge influence in the criminal environment, occupying the highest position in the criminal hierarchy.

Also, the authorities and leaders of the Orekhovskaya organized criminal group, who came to manage the group after the death of Sylvester, S.Y. Butorin, born on 11/19/1964, the criminal nickname "Osia", Marat Polyansky, who is the "right hand", were neither "thieves in law", nor "postioners", nor "watchers". Butorina.

Were S.I. Timofeev, S.Y. Butorin persons occupying the highest position in the criminal hierarchy?

It is safe to say that they were.

We draw this conclusion from their influence in the criminal environment, the leadership of the criminal community (organization) and its structural units, subordination to them of persons occupying a lower position in the criminal hierarchy of the Orekhovskaya organized criminal group. 

A similar situation was typical for the Kurgan organized criminal group, one of the most violent criminal groups in Moscow in the 1990s.

The Kurgan organized criminal group originated in 1990 in Kurgan, its leaders were former athletes Vitaly Ignatov born in 1962, Andrey Koligov born in 1964, Oleg Nelyubin born in 1965, all three were previously not convicted. In the late 1980s, they worked as gravediggers at the Kurgan city cemetery. Together with them, Alexander Solonik, a cadet of the Higher School of the Ministry of Internal Affairs, worked as a gravedigger (who later became a full-time killer of the group).

Were the leaders of the "Kurgan" organized criminal group, Ignatov, Koligov, Nelyubin, persons occupying the highest position in the criminal hierarchy?

Based on the criteria outlined above, it is safe to say that they were, however, they did not have any criminal status in the criminal environment, they were neither persons of the category "thief in law", nor "positioners" and neither "watchers".

When investigating the criminal activities of the "Kurgan" organized criminal group, an interesting fact is the death of some of the leaders of the "Kurgan" organized criminal group who found themselves in prison.

In particular, it is known that on 01.10.2005 Andrey Koligov committed suicide while in the colony (according to the official version of the FSIN staff).

At the same time, according to an unofficial version, Koligov was raised to the gallows at night by his cellmates executing the sentence, "thieves in law", according to whom, a person involved in the organization and commission of murders, including authorities and leaders of the criminal environment, cannot live in places of imprisonment where the "thieves' move" operates", that is, the rules established by "thieves in law" apply, and the zone is "black". On 17.01.1998, on one day in the pre-trial detention center No. 1 of the Federal Penitentiary Service of Russia in Moscow (Matrosskaya Tishina), the leaders of the "Kurgan" organized criminal group Oleg Nelyubin and his "right" hand Pavel Zelenin, who is the authority of the "Kurgan" organized criminal group, died in fights with cellmates (according to the employees of the Federal Penitentiary Service). 

Summarizing the examples given, it is possible to draw a general conclusion of the conducted research that the list of persons occupying the highest position in the criminal hierarchy cannot be exhaustive, these persons include both "thieves in law" and the leaders of independent criminal communities (criminal organizations) in their composition having a criminal hierarchy providing for the presence of the highest position in it. At the same time, we are convinced that such categories of the criminal "elite" as "the poser", "the looker", "the holder of the thieves' commissary" occupy not the highest, but the "high" position, which is one step lower in the criminal hierarchy and may be the subjects of crimes provided for in Part 4 of Articles 210 and 210 ¹ of the Criminal Code of the Russian Federation only if they are the leaders of independent organized criminal communities (criminal organizations) in which there is a multi-level criminal hierarchy providing for a higher position. In addition, it should be noted that not every "thief in law" occupies the highest position in the criminal hierarchy. In particular, when determining whether the accused occupied the highest position in the criminal hierarchy, the court must take into account all the available facts, namely, to establish from what time the person occupied the highest position, whether he is deprived of his criminal status, whether, due to old age and the presence of severe chronic diseases, he is able to perform the objective side of the crime. And only based on the results of an objective and comprehensive study of all the facts and evidence presented, to involve a person under Part 4 of Articles 210 and 210 ¹ of the Criminal Code of the Russian Federation.