Questions of qualification of complicity of all members of an organized group as co-perpetrators of a crime

Bakradze Andrei Anatol'evich Doctor of Law Professor; Department of Criminal Law, Procedure and Criminalistics; National Research University Higher School of Economics 109028, Russia, Moscow, Bolshoy Trekhsvyatelsky lane, 3, room 445 Bakradzeaa@mail.ru Other publications by this author

In its thematic resolutions, the Plenum of the Supreme Court of the Russian Federation explained approximately uniformly (with the exception of certain nuances) that when an organized group commits a crime, including with a special subject composition, the actions of all its members who participated in the preparation or commission of a crime, regardless of their actual role, should be qualified according to the relevant parts and articles of the Criminal Code The Russian Federation without reference to Article 33 of the Criminal Code of the Russian Federation^[1].

Meanwhile, the Criminal Code does not contain a norm on the basis of which all members of an organized group, regardless of their actual role, who took part in the preparation or commission of a crime, should be held responsible without reference to Article 33 of the Criminal Code of the Russian Federation.

According to the meaning of Parts 2, 3 of Article 34 of the Criminal Code of the Russian Federation, a reference to Article 33 of the Criminal Code of the Russian Federation is not required only in cases where it is a question of the presence of a "pure" and (or) "mixed" (with signs of other types of complicity) of the perpetrator (co-perpetrators) of the crime.

Part 4 of Article 34 of the Criminal Code of the Russian Federation stipulates a rule for certain norms, according to which 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 in this Article, is criminally responsible for this crime as its organizer, instigator or accomplice (i.e. with reference to 33 of the Criminal Code of the Russian Federation – author's note).

Based on this, it can be concluded that, as a general rule, in crimes with a special subject composition, qualification without reference to Article 33 of the Criminal Code of the Russian Federation is allowed only in cases provided for in parts 2, 3 of Article 34 of the Criminal Code of the Russian Federation.

If the organizer, instigator or accomplice in the crime with a special subject were not at the same time his co-perpetrators, the reference to Article 33 of the Criminal Code of the Russian Federation is mandatory.

The interpretation of the meaning of part 3 of Article 35 of the Criminal Code of the Russian Federation expressed in a number of listed resolutions in relation to the subject composition of an organized group, in particular, that it may also include persons who do not possess the characteristics of a special subject, is beyond doubt and does not contradict parts 2-4 of Article 34 of the Criminal Code of the Russian Federation.

Ambiguity remains in the legal justification for the qualification of the complicity of all members of an organized group, without exception, as co-perpetrators of a crime, i.e. without reference to Article 33 of the Criminal Code of the Russian Federation.

If, as a general rule, and otherwise, as noted above, the law does not reveal itself, the criminal liability of the organizer, instigator or accomplice (without signs of the perpetrator) occurs with reference to Article 33 of the Criminal Code of the Russian Federation (Part 3 of Article 34 of the Criminal Code of the Russian Federation), then on what basis should these same actions as part of an organized group be qualified Otherwise?

Paragraph 10 of the PPVS No. 1 clarifies that when a murder is committed by a group of persons and a group of persons by prior agreement, other members of the criminal group (not co-perpetrators) may act as organizers, instigators or accomplices of the murder (complex complicity), and their actions should be qualified according to the relevant part of Articles 33 and paragraph "g" of Part 2 Article 105 of the Criminal Code of the Russian Federation ... when recognizing a murder committed by an organized group, the actions of all participants, regardless of their role in the crime, should be qualified as co-execution without reference to Article 33 of the Criminal Code of the Russian Federation.

The Plenum of the Supreme Court of the Russian Federation adheres to the same position in its rulings on judicial practice in other cases.

As you can see, with regard to a group of persons by prior agreement, the Plenum of the Supreme Court of the Russian Federation indicates the need to qualify the actions of participants in a criminal group (not co-perpetrators) acting as organizers, instigators or accomplices, with reference to Article 33 of the Criminal Code of the Russian Federation.

The Plenum of the Supreme Court of the Russian Federation allowed a departure from this rule when qualifying the actions of members of an organized group who took part in the preparation or commission of a crime, as well as a participant in a criminal community (criminal organization) who is not the perpetrator of a specific crime, but in accordance with the distribution of roles within this community performing the functions of an organizer, instigator or accomplice^[2].

Nevertheless, the refusal to refer to Article 33 of the Criminal Code of the Russian Federation cannot be justified by the increased public danger of an organized group and a criminal community (criminal organization), since the interrelated provisions of Articles 32-35 of the Criminal Code contain signs common to all forms of complicity that require equal consideration and application.

An organized group as a form of complicity acts as a criminalizing feature (structural element) of a criminal community (criminal organization).

By virtue of Part 4 of Article 35 of the Criminal Code of the Russian Federation, these forms of complicity relate to each other as part and whole, since a criminal community (criminal organization) is a structured organized group or an association of organized groups.

This correlation of two independent forms of complicity suggests that the current requirements and restrictions regarding the qualification of a crime as committed by a criminal community (criminal organization) should also apply to its structural element – an organized group.

In turn, an organized group similarly correlates with a group of persons by prior agreement, in which both simple and complex complicity is possible, and the latter with a group of persons without prior agreement, consisting only of co–executors.

Analyzing the concept of "a group of persons by prior agreement" from the point of view of its subject content, Professor B.V. Yatselenko notes that "on the direct instructions of ch. Article 35 of the Criminal Code of the Russian Federation, co-execution is characteristic exclusively for a group of persons who commit a crime without prior collusion. From the point of view of the letter of the criminal law defining the signs of a group of persons (Part 1 of Article 35 of the Criminal Code of the Russian Federation) and a group of persons by prior agreement (part 2 of Article 35 of the Criminal Code of the Russian Federation), there is no doubt that the content of the latter is formed by the acts of all accomplices, and not only co-executors… This conclusion, which follows from the prescription of ch. 2, Article 35 of the Criminal Code of the Russian Federation, is confirmed in Articles 32 and 33 of the Criminal Code of the Russian Federation (both defining, respectively, complicity as the intentional joint participation of two or more persons in the commission of an intentional crime, and listing the types of persons involved in it)" ^[1].

Being forms of complicity, a group of persons and a group of persons by prior agreement have all its signs (Article 32 of the Criminal Code of the Russian Federation), therefore, mention in parts 1, 2 of Article 35 of the Criminal Code of the Russian Federation for the joint commission of a crime is not required, as, indeed, in Part 4.

In this sense, the absence in Part 3 of Article 35 of the Criminal Code of the Russian Federation of a direct indication of the agreement of accomplices on the joint commission of one or more crimes does not distinguish an organized group from other forms of complicity.

Along with this, the joint commission of a crime does not mean only co-execution, which is directly seen from the interrelated provisions of Articles 32, 33 of the Criminal Code of the Russian Federation, regulating both simple and complex complicity as joint criminal activity.

The impossibility of complex complicity in joint criminal activity is explicitly defined only for a group of persons without prior collusion (Part 1 of Article 35 of the Criminal Code of the Russian Federation).

For this reason, the absence of this feature when describing the concept of an organized group directly in Part 3 of Article 35 of the Criminal Code of the Russian Federation does not mean that the actions of all its members who participated in the preparation or commission of a crime, regardless of their actual role, are qualified without reference to Article 33 of the Criminal Code of the Russian Federation.

An organized group has a sign of compatibility by virtue of Article 32 of the Criminal Code of the Russian Federation, which implies both simple and complex complicity (in Part 1 of Article 18 of the Criminal Code of the Republic of Belarus, the sign of compatibility is explicitly indicated when describing this form of complicity ^{[2, p. 46]}).

Moreover, an organized group is, albeit stable, but still a group of people who have joined together in advance (in other words, by prior agreement) to commit one or more crimes. And if a group of persons by prior agreement (part 2 of Article 35 of the Criminal Code of the Russian Federation) may consist of accomplices with a distribution of roles, then, both in an organized group and in a criminal community (criminal organization), including in crimes with a special subject composition, qualification by roles is necessary.

At the same time, stability as a specific feature of an organized group is the stability of the composition, well–established strong ties and relationships between its members, due to long-term joint activities, etc., as well as other signs ^{[3; 4; 5; 6; 7, p. 134]}, do not even hypothetically justify the qualification of the actions of all its members without reference to art. 33 OF THE Criminal Code OF the Russian Federation.

For example, the status of an accomplice is unlikely to change to a co-executor only on the grounds that he provided the necessary information to an organized group for a long time.

There are other points of view here, in particular, one-time (so-called "attached") complicity requires a reference to Part 5 of Article 33 of the Criminal Code of the Russian Federation, and if it is carried out on an ongoing basis, then this is not necessary, since in the latter case the roles are distributed within the group ^{[8, p. 59]}.

"The subjective connection of accomplices" or "special relations between participants" as differentiating signs of complicity ^{[9, pp. 18, 19; 10, p. 59]} do not add clarity to this issue.

The position of the PVS of the Russian Federation is not only not based on the law, it does not contain legal instruments that could justify the qualification of a crime as committed by an organized group consisting of a single perpetrator and other accomplices, including in the constituent entities^[3].

The study of investigative and judicial practice showed that in order to substantiate the qualification without reference to Article 33 of the Criminal Code of the Russian Federation, it was enough to identify at least one member of an organized group with the characteristics of a special subject.

So, by the verdict of the court, K., K. and A. were found guilty of embezzlement committed by an organized group.

Justifying its conclusion, the court pointed out that the commission of a crime by the defendants as part of an organized group is evidenced by the presence of more than two participants in the group, the distribution of roles in the commission of a crime, stability due to the connections between the members of the group and specific methods of activity for the preparation and commission of a crime, careful planning of the crime, a significant period of time of its existence, consistency of actions of the participants groups, awareness of all participants about the crime being committed, etc.

Along with this, the court actually established that only one person possessed the signs of a special subject of appropriation (the position of vice-president of the Bank, which grants the right to dispose of the property of a credit institution on the basis of a power of attorney)^[4].

Professor A.V. Naumov believes that "with complex complicity (with the distribution of roles), there should be at least two co-executors in a group of persons by prior agreement" ^{[11, p. 206]}.

According to Professor Egorova N.A., "in an organized group of officials (managers of commercial and other organizations) there should be at least two, otherwise a paradoxical situation develops: for a group of persons by prior agreement, at least two special subjects are needed, and for an organized group (a more dangerous form of complicity) one is enough" ^{[12, p. 185]}.

At the same time, the issues of the quantitative and qualitative composition of the participants of an organized group (a structural unit of a criminal community, gang) continue to be a subject of scientific interest ^{[13, p. 193, 194; 14; 15; 16]}.

Indeed, when describing the concept of "groups of persons" in Part 1 of Article 35 of the Criminal Code of the Russian Federation, the legislator, in fact, included co–execution as a sign in relation to all forms of complicity (for a criminal community – indirectly through an organized group - a stable group of persons, etc.).

Similarly, Part 3 of Article 35 of the Criminal Code of the Russian Federation imposes minimum requirements on the composition of an organized group, the structure of which cannot be less than a group of persons united as co-perpetrators to commit at least one crime.

For example, within the meaning of Part 2 of Article 33, Part 1 of Article 35 of the Criminal Code of the Russian Federation, the commission of crimes by an organized group listed in paragraph 28 of PPVS N 48 is possible only with the participation of at least two special subjects (co-executors), whereas other participants may not have such signs.

The constitutive feature of an organized group is the concept of a "group of persons" with all its inherent features, including the requirements of the law on mandatory special subject composition (at least two co-executors) of the named form of complicity.

A literal interpretation of certain provisions of the Criminal Procedure Code of the Russian Federation only allows us to assume that persons who do not have the characteristics of a special subject may be part of an organized group along with special subjects of crime united in a group of persons (at least two), but not instead of them. This is indicated by the union "also", meaning "in addition" (See paragraph 2 of paragraph 28 of the PPVS No. 48).

In our opinion, additional clarifications are required here, as well as the rejection of the accepted practice of qualification without roles.

In particular, the actions of other persons – members of an organized group who took part in the preparation or commission of a crime, but do not have the characteristics of a special subject, should be qualified with reference to Article 33 of the Criminal Code of the Russian Federation (Part 4 of Article 34 of the Criminal Code), while such an organized group should consist of at least two special performers subjects.

This approach has been shaping investigative and judicial practice for a long time^[5].

It was based on the differentiation of criminal liability by roles, due to the individual contribution of each accomplice ^{[17, p. 138; 18; 19]}, including real, not nominal performers.

Similarly, that is, according to the actual role and the number of perpetrators (at least two), the issue of crimes with a common subject should be resolved.

At the same time, the combination of the efforts of the perpetrators, who facilitate the commission of a crime to each other and thereby gain an advantage (depends on the organization), should act as a criterion for distinguishing forms of complicity (Article 35 of the Criminal Code of the Russian Federation), including public danger ^{[8, p. 59]}, from other types of complicity (Article 33 of the Criminal Code of the Russian Federation).

If the objective side is performed by one person, then there are no signs of group criminal activity in the context of Article 35 of the Criminal Code of the Russian Federation, while the number of other accomplices (not performers) does not matter here.

In this case and in the presence of other sufficient data, the qualification should be limited by reference to Article 33 of the Criminal Code of the Russian Federation.

In the science of criminal law, there are other quite convincing positions on this topic.

For example, if our arguments concerned mainly the unjustified overstatement of criminal liability for some accomplices (not performers), then in the case of the organizer, who is often more dangerous than the performer, on the contrary, we may be talking about "beneficial" for him to "equalize" the status to common with all other accomplices ^{[20, p. 88; 21, pp. 32, 33]}.

Summing up, I would like to note that the issues of qualifying the actions of all members of an organized group and a participant in a criminal community (criminal organization) who is not the perpetrator of a particular crime, but in accordance with the distribution of roles within this community performing the functions of an organizer, instigator or accomplice, as co-perpetrators of a crime regardless of their actual role, i.e. without references to Article 33 of the Criminal Code of the Russian Federation, and a return to the practice of qualification by roles through appropriate clarifications of the Plenum of the Supreme Court of the Russian Federation require rethinking, taking into account the accumulated theoretical knowledge and applied solutions in the science of criminal law.

Along with this, and by analogy with a group of persons by prior agreement, it is necessary to clarify that in crimes committed by an organized group and a criminal community (criminal organization) with a common and special subject, there must be at least two perpetrators.

In order to unify the criminal law, it is proposed to exclude from Part 2 of Article 33 of the Criminal Code of the Russian Federation, parts 1, 2, 4 of Article 35 of the Criminal Code an indication of the "compatibility" of the commission of a crime, since this feature is already embedded in them through Article 32 of the Criminal Code of the Russian Federation.

^[1] See: paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 01/27/1999 No. 1 (as amended on 03.03.2015) "On judicial practice in murder cases (Article 105 of the Criminal Code of the Russian Federation)"//Bulletin of the Supreme Court of the Russian Federation, No. 3, 1999. (hereinafter – PPVS No. 1); paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/27/2002 No. 29 (as amended on 12/15/2022) "On judicial practice in cases of theft, robbery and robbery"//Bulletin of the Supreme Court of the Russian Federation, No. 2, 2003.; paragraph 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation from 09.07.2013 No. 24 (as amended on 12/24/2019) "On judicial practice in cases of bribery and other corruption crimes"//Bulletin of the Supreme Court of the Russian Federation, No. 9, September, 2013. (hereinafter – PPVS No. 24); paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/17/2015 No. 56 "On Judicial practice in cases of extortion (Article 163 of the Criminal Code of the Russian Federation)"// Bulletin of the Supreme Court of the Russian Federation, No. 2, February, 2016.; paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 11/30/2017 No. 48 (ed. from 12/15/2022) "On judicial practice in cases of fraud, embezzlement and embezzlement"// Bulletin of the Supreme Court of the Russian Federation, No. 2, February, 2018. (hereinafter – PPVS No. 48), etc.

^[2] See paragraph 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/10/2010 No. 12 "On the judicial practice of considering criminal cases on the organization of a criminal community (criminal organization) or participation in it (her)"//Bulletin of the Supreme Court of the Russian Federation, No. 8, August, 2010.

^[3] See paragraph 16 of the PPVS No. 24.

^[4] See The verdict of the Nikulinsky District Court of Moscow dated July 10, 2019 in the case № 01-0003/2019 (01-0285/2018) [ The electron. resource] // Moscow City Court [website]. URL: https://https://mos-gorsud.ru/rs/nikulinskij/services/cases/criminal/details/c31be88e-750d-4f08-b638-16237a13c5c1?CaseNumber=01-0003/2019 (accessed: 08/02/2024).

^[5] See paragraphs 22, 23 Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/27/2007 No. 51 "On judicial practice in cases of fraud, embezzlement and embezzlement"//Bulletin of the Supreme Court of the Russian Federation, No. 2, February, 2008.