Features of voluntary renunciation of complicity in a crime

Yakovleva Elena Olegovna ORCID: 0000-0003-1733-3904 PhD in Law Associate Professor; Department of Criminal Law; Southwestern State University 94, Fifty Years of October str., Kursk, Kursk region, 305040, Russia pragmatik-alenka@yandex.ru Tarikin Vladimir Konstantinovich Associate Professor; Department of Criminal Law; Southwestern State University 305040, Russia, Kursk region, Kursk, ul. Fifty Years of October, 94 tarykin.vladimir@yandex.ru

Lubentseva Kristina Aleksandrovna Student; Faculty of Law; Southwestern State University 305040, Russia, Kursk region, Kursk, ul. fifty years of October, 94 pragmatik-alenka@yandex.ru

Introduction

At the moment, the prevention of crimes in criminal law is one of the main tasks. The legislator uses various means to solve it, these include measures of criminal law enforcement and regulations that stimulate positive social activity of the individual ^[1]. The latter includes the institution of voluntary renunciation of crime. Many Russian jurists studied the provisions of this institute: S. V. Sheveleva, A. I. Sitnikova, A.V. Naumov, A. A. Klyuev, A. I. Orlova, A. A. Shakirova and others. Despite the extensive list of scientific research works, the importance of which we recognize, nevertheless, the institution of voluntary refusal in criminal law is associated with the need to overcome a number of contradictions that have not yet been eliminated, which determines the relevance of this study. Thus, the issue of qualification of voluntary refusal to participate in the refusal to bring criminal acts to an end by the co-executor remains controversial. The object of the study will be public relations related to the voluntary renunciation of complicity in crimes.

In the current legislation, the voluntary refusal of complicity in a crime is enshrined in article 31 of the Criminal Code of the Russian Federation. It is commonly understood as the termination of actions (inactions) that correspond to the functional roles of accomplices in their criminal formation, when realizing the real possibility of bringing these actions (inactions) to an end. It is worth noting that the specifics of the refusal of accomplices are determined primarily by the form of complicity, as well as the components of the crime and the way it is carried out – by action or inaction. In addition, an important role in the application and regulation of this institution is played by theoretical understanding and the development of recommendations for the practical implementation of the norm in question. The crime itself, followed by voluntary renunciation of it, can be committed by one or more interacting persons ^[2].

Under complicity in a crime, the legislator recognizes the deliberate joint participation of two or more persons in the commission of an intentional crime (Article 32 of the Criminal Code of the Russian Federation). The criminal legislation provides for norms establishing that voluntary refusal is carried out according to the general rules, according to Article 31 of the Criminal Code of the Russian Federation ^[3]. However, analyzing the features of the application of voluntary refusal of one of the accomplices of the crime, the researchers asked a number of questions: how to determine the activity of a given person's actions, his role in the commission of a crime and personal characteristics ^[4].

The institution of voluntary refusal is characterized by an individual character. This is confirmed by the fact that with a voluntary waiver of responsibility, only the person who did it of his own free will can be released. In addition, if it is established that the voluntary refusal of the performer was provoked by convincing requests from the organizer or instigator, who themselves desired it, then the voluntary refusal will apply to the activities of these participants ^[5].

The opposite is the situation when the perpetrator voluntarily refused to bring his criminal actions to an end, despite numerous requests from other accomplices to finish the crime he started. In such circumstances, it would be wrong, taking into account these circumstances, to attribute the voluntary refusal of the performer also to the activities of other accomplices as a circumstance mitigating their guilt. It is also worth noting that in specific cases, by court decision, with the voluntary refusal of the performer, his individual qualities can be taken into account, which usually, according to general rules, do not serve as a basis for mitigating the responsibility of accomplices ^[6].

The specifics of the voluntary refusal of accomplices from a crime depend not only on the role that everyone performs, but also on the recognition by the legislator of the organization of a stable criminal group (organized group and community) ^[7]. In cases where the fact of the creation of a criminal group is not provided for as an independent corpus delicti, it is possible for its participants to voluntarily refuse until the end of the first crime for which the group was created. However, the subsequent actions of the accomplices should be considered as active repentance. This also includes the fact that the criminal group retains its existence, despite the subversive efforts of its creator, since they did not withdraw their contribution to the joint crime ^[8].

Materials and methods

The methodological basis of this work is the dialectical method of cognition, thanks to which it was possible to study the object and subject of research in conjunction with the norms of criminal, penal enforcement legislation and other normative legal acts. The theoretical and methodological basis of the research is also various logical techniques and means of scientific cognition, general scientific and private scientific methods: scientific deduction, formal logical, method of normative legal analysis, historical and legal analysis, formal legal and comparative legal analysis.

Using the methodology, scientific articles published in 2018-2020 on the qualification of voluntary refusal to participate in a crime, as well as the features of this institute, were selected.

Based on the conducted research, the main conclusions and recommendations for improving the current legislation governing voluntary refusal were formulated.

Results and discussions

One of the problems of qualifying voluntary renunciation of the crime of complicity is the question of the refusal to bring criminal acts to an end by the co-executor. There are several positions in the theory of criminal law on this issue:

– in order for the co-executor to refuse to commit a crime, it is necessary to stop the criminal act as a whole. At the same time, it does not matter whether he has fulfilled his part of the objective side or not;

– it is enough for the co-executor to stop only his actions (inaction);

– the prevention of the completion of a crime by another co-perpetrator is mandatory only if the roles are distributed among the co-perpetrators.

Cases of voluntary refusal in co-execution require special consideration, since it is hardly possible to speak unequivocally about the sufficiency of these legislative provisions. In the legal literature, this issue has also not found a definite solution. I. D. Kozochkina, V. N. Borkov adhere to the point of view that in case of voluntary refusal, the co-perpetrator of the crime must prevent other accomplices from committing a crime. I. A. Khitrov, on the contrary, believes that giving the co-perpetrator an obligation to prevent the commission of a crime by another co-perpetrator does not comply with the law, since The latter imposes the obligation to prevent a crime only on the organizer and instigator ^[9].

It is important to note that if voluntary refusal is traced in the actions of one of several performers, then criminal liability of his accomplices may occur for such criminal acts as an attempt or a completed crime. Therefore, in practice, the voluntary refusal of the co-executor from bringing criminal actions to an end does not always lead to the prevention of a criminal result.

In our opinion, it is advisable to fix in a separate article of the Criminal Code of the Russian Federation, devoted to the voluntary refusal of accomplices, a model for qualifying the actions of co-executors. It can be formulated as follows: "A co-perpetrator of a crime is not subject to criminal liability if, realizing the possibility of completing the crime, he voluntarily stops creating conditions for committing an intentional crime or committing actions (inaction) directly aimed at committing a crime, or hinders a criminal result. When a crime is committed by a group of persons by prior agreement, an organized group or a criminal community (criminal organization), the co-perpetrator of the crime, who began to commit actions (inaction) directly aimed at committing a crime, is not subject to criminal liability if he does not allow other co-perpetrators of the crime to commit a crime, and voluntarily stops any actions (inaction)". This is justified by the fact that in order for the co-perpetrator to voluntarily refuse to commit a crime, he must cease his active role in this act and stop any actions or omissions that contribute to the achievement of a criminal goal. This will disrupt the causal relationship between his actions and the criminal result, which, in turn, will lead to the termination of the crime as a whole. Also, such a participant can actually prevent other co-perpetrators from committing a crime. If the co-perpetrator of the crime really tried to prevent it from being committed by other participants, this may indicate a lesser degree of his guilt. In this case, the exemption from liability can be justified by the principle of justice.

An accomplice to a crime is also an organizer, who in criminal law is recognized as a person who organizes the activities and work of other participants in order to commit a crime and achieve a common criminal result, while not taking part in it ^[10]. In turn, the voluntary refusal of the organizer is recognized only if he commits active actions that contribute to preventing the occurrence of harmful consequences of the crime. M. R. Khanbabaev notes that the similarity of the voluntary refusal of the organizer and the performer will be the fact that it can be committed only at the stage of preparation or an unfinished attempt ^[11]. As for the instigator, the perpetrator and the accomplice, if the organizer voluntarily refuses, they will still be responsible for preparing to commit a crime.

So, for example, if the organizer of a contract killing informs in advance about the conspiracy with the perpetrator and provides details of the organization of this crime to law enforcement agencies, he actually takes active steps to prevent the crime. If law enforcement agencies have sufficient time, resources and capabilities to prevent this crime, the actions of the organizer can be considered as a voluntary refusal to commit a crime.

Article 33 of the Criminal Code of the Russian Federation establishes that the person who incites to commit a crime acts as an instigator. Commenting on the essence of this norm, A. A. Savin and A.V. Barinov rightly assert that by their actions the instigator arouses the determination of another person to commit a crime ^[12]. The activity of his role in the commission of a crime means that if he wants to make a voluntary refusal, then, just like the organizer, he is obliged to take all possible measures aimed at the performer's refusal to commit a crime in order to prevent the occurrence of a criminal result. However, in general, we believe that a person should be active and take all possible measures to prevent a crime if he really wants to voluntarily abandon the commission of a crime.

An accomplice is a person who assists in the commission of a crime with the help of advice or removes obstacles, as well as helps conceal the perpetrator, tools and means of committing a crime, traces and evidence. This concept is enshrined in Article 33 of the Criminal Code of the Russian Federation. In general, the role of an accomplice is considered to be less active, unlike other participants, since it does not provoke the perpetrator to commit a crime, but only, if necessary, contributes to achieving a criminal result. It is generally accepted to distinguish in the science of criminal law physical and intellectual complicity, which differ from each other in the way they influence another subject ^[13]. For example, if the complicity was characterized by the provision of funds and tools necessary for the perpetrator to commit a crime, as well as if the accomplice committed a number of actions aimed at eliminating circumstances preventing the commission of a crime, then for voluntary refusal this person will need to withdraw the funds and tools found by him, as well as direct all efforts to restore the eliminated circumstances [14A.V. Goncharova draws attention to the fact that after the voluntary refusal of the accomplice is considered to have taken place, the court should not involve the accomplice in performing any actions aimed at preventing the perpetrator and other participants from completing the crime [15].

Intellectual complicity is expressed in the promise for the organizer or performer of guaranteed shelter, if necessary, or the acquisition and sale of property obtained by criminal means. It is important to take into account here that for the voluntary refusal of the person who made such promises, it will only be sufficient to inform the executor of their invalidity ^[16].

There is only one exception to this rule, which is that the voluntary refusal of an accomplice in some cases will be valid when committed in a passive form, that is, by refraining from further assistance in the commission of a criminal act ^[17].

It should be noted that at present the problem of intellectual assistance is not solved when the contribution made to the crime by providing recommendations, instructions and information cannot be extracted from the consciousness of the perpetrator, and he can use this information at any time, despite the change in the desire of the accomplice ^[18].

If the accomplice voluntarily refuses to complete the crime, the distribution of responsibility among the remaining accomplices is regulated in a special order: if the perpetrator voluntarily refuses to complete the crime not of his own free will, but as a result of the influence of another participant in criminal activity, then the voluntary refusal will be classified to the actions of the person who influenced the perpetrator. It is worth noting that the actions of these participants will not go unpunished, as they will be criminally responsible for acts preceding the refusal, such as: preparation for the commission of a crime and an attempt on it. There are also situations when the actions of the accomplice were unsuccessful. Then the court will consider his confession as an active repentance, and the rest of the accomplices will be equally responsible for the crime committed by the perpetrator ^[19].

Conclusions

The problems associated with the qualification of criminal acts of accomplices, the definition of their role and the imposition of punishment are complex and diverse. Group crimes, due to their prevalence, require a deeper study and development of theoretical foundations, legislative regulation and practical aspects for the correct legal assessment of such acts. This will make it possible to fairly choose punishment for each accomplice and correctly resolve situations related to voluntary refusal in group criminal behavior.

Based on the conducted research, the following features of the institute of voluntary refusal can be distinguished:

Firstly, voluntary refusal to commit a crime has two mandatory signs: a person must voluntarily refuse to carry out criminal actions to the end, and he must also have a real opportunity to finish the crime he started. This means that a person must consciously make a decision not to commit a crime and take actions that confirm his intention to abandon the criminal plan.

Secondly, an important role in considering a person's voluntary refusal will be played by how he planned to commit the crime – alone or as part of a group of accomplices. If a person acted alone, his motives and circumstances that prompted him to abandon the crime will be evaluated differently than in the case when he was part of a criminal group.

Thirdly, if the voluntary refusal of the performer was provoked by convincing requests from the organizer or instigator, who themselves desired it, then the voluntary refusal will also apply to the activities of these participants^[20]. That is, if the organizer or instigator actively contributed to the perpetrator's refusal to commit a crime, then this fact can be taken into account when assessing their own role in a possible crime.

Fourth, the voluntary refusal of an accomplice is most often expressed in the form of active activity, since by his intervention he seeks to destroy the contribution made to the commission of a criminal act. An accomplice who helps in the commission of a crime usually must take active actions aimed at preventing a crime, for example, reporting an impending crime to law enforcement agencies or otherwise preventing its commission.

Another conclusion of the study is the idea that at the moment the process of bringing to criminal responsibility is complicated by the multiplicity of evaluative categories and concepts. The institution of voluntary refusal to commit a crime is a vivid example of such an assessment category and requires a qualified approach, professional experience and a high level of legal awareness from law enforcement officers.

In addition, it is important to consolidate the features of the voluntary refusal of accomplices, considered in this study, in a separate legal norm, which should be included in the Criminal Code of the Russian Federation. Such norms should be placed in Chapter 7 of the Criminal Code of the Russian Federation, devoted to complicity, taking into account the specifics. This will make it possible to unify the legal aspects of complicity, avoid mistakes in qualifying the voluntary refusal of accomplices from completing the crime, and also ensure justice when bringing to justice participants in a group crime.