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On judicial practice in cases of banditry

PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

DECISION

ABOUT THE PRACTICES OF APPLICATION BY THE COURTES OF LEGISLATION

ON LIABILITY FOR BANDITISM

In connection with issues arising in the courts in the application of legislation that provides liability for banditry, the Plenum of the Supreme Court of the Russian Federation decides:

1. To draw the attention of the courts to the particular danger of banditry posing a real threat both for the personal safety of citizens and their property, and for the normal functioning of state, commercial or other organizations.

2. A gang should be understood as an organized, stable armed group of two or more persons who have previously united to commit attacks against citizens or organizations. The gang can also be created to accomplish one, but requires careful preparation of an attack.

3. From other organized groups, the gang is distinguished for its armament and its criminal purposes - the perpetration of attacks against citizens and organizations.

4. The stability of the gang can be evidenced in particular by such signs as the stability of its composition, the close relationship between its members, the consistency of their actions, the persistence of forms and methods of criminal activity, the duration of its existence and the number of crimes committed.

5. A mandatory feature of the gang provided for in Art. 209 of the Criminal Code of the Russian Federation, is its armament, presupposing that the participants have a gang of firearms or cold, including missile weapons, both factory-made weapons and improvised explosive devices, as well as gas and pneumatic weapons.

The use by participants of an attack of a weapon unfit for targeted use or its mock-ups can not be considered as a sign of their armament.

When deciding whether to recognize weapons used by members of a gang during an attack, the provisions of the Russian Federation Arms Act, and, where appropriate, the conclusion of experts, should be guided.

The gang is recognized armed if there is a weapon at least of one of its members and awareness of it by other members of the gang.

6. The attack should be understood as actions aimed at achieving a criminal result by using violence against a victim or creating real threat its immediate application.

The attack of the armed gang is considered to be held also in those cases when the weapons the gang members did not use.

7. The creation of a gang presupposes the commission of any actions resulting in the formation of an organized, stable armed group with a view to attacking citizens or an organization. They can be expressed in collusion, in the search for accomplices, in financing, in the acquisition of weapons, and so on.

The creation of an armed gang is in accordance with Part 1 of Art. 209 of the Criminal Code of the Russian Federation with the completed composition of the crime, regardless of whether the crimes that she planned were committed.

In those cases when the active actions of a person aimed at creating a stable armed group, due to their timely suppression by law enforcement agencies or other circumstances beyond their control, did not lead to the formation of a gang, they should be qualified as an attempt to create a gang.

8. Under the leadership of the gang is understood the adoption of decisions related to both the planning, material support and organization of the criminal activities of the gang, and with the commission of specific attacks.

9. Participation in a gang is not only a direct participation in the attacks, but also the performance by gang members of other active actions aimed at financing it, providing weapons, transport, finding objects for attack, etc.

10. In accordance with Part 2 of Art. 209 of the Criminal Code as banditry should qualify for participation in the attack and those who, not being members of the gang, realize that they are participating in the crime committed by the gang.

The actions of persons who were not members of the gang and who did not take part in the attacks that they committed, but who assisted the gang in its criminal activities, should be classified under art. 33 and the corresponding part of Art. 209 of the Criminal Code.

11. Under the commission of banditry with the use of their official position (part 3 of article 209 of the Criminal Code of the Russian Federation), one should understand the use by a person of his authority or other official powers, uniforms and attributes, service certificates or weapons, as well as information that he possesses in connection with his official position, in preparing or committing a gang attack, or in financing its criminal activities, weapons, material equipment, the selection of new members of the gang, etc.

12. Article 209 of the Criminal Code of the Russian Federation does not provide as an obligatory element in the composition of banditry any specific purposes of the armed bandits' attacks. This can be not only the direct seizure of property, money or other values of a citizen or organization, but also murder, rape, extortion, destruction or damage to someone else's property, etc.

13. Courts should bear in mind that Art. 209 of the Criminal Code of the Russian Federation, which establishes responsibility for the creation of a gang, leadership and participation in it or in its attacks, does not provide for responsibility for the commission of criminal acts by members of the gang in the course of an attack forming independent crimes; in this connection, . 17 of the Criminal Code of the Russian Federation, according to which, in the aggregate of crimes, the person is liable for each crime under the relevant article or part of the article of the Criminal Code of the Russian Federation.

14. According to the meaning of Art. 209 of the Criminal Code of the Russian Federation, any of the forms of banditry provided for by law are possible only with direct intent.

The subject of this crime may be a person who has reached the age of 16. Persons aged 14 to 16 who committed various crimes within the gang are liable only for those specific crimes for which responsibility is provided from the age of 14 (Article 20 of the Criminal Code of the Russian Federation).

15. To draw the attention of the courts to the importance of strict adherence to the principle of individualization of responsibility when assigning punishment to persons guilty of banditry. To this end, it is necessary to carefully investigate and take into account the totality of the circumstances of the case and the data on the identity of the defendants: the role and degree of the person's participation in the organization and criminal activity of the gang, the severity of the consequences resulting from the attacks that it has committed, and so on.

17. With the adoption of this Decree, the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 1993 N 9 jurisprudence on cases of banditry. "

Chairman of the Supreme Court

Russian Federation

V.M. LEPEDEV

Secretary of the Plenum,

judge of the Supreme Court

Russian Federation

VVDEMIDOV

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Having discussed the practice of examining cases of banditry by courts and taking into account that when applying the law the courts had issues requiring clarification, the Plenum of the Supreme Court of the Republic of Belarus

decides:

2. To explain to the courts that the gang is a cohesive, stable, controlled armed group of two or more persons, organized to commit armed attacks on citizens or enterprises, institutions, organizations.

A gang can be created to commit one, but requires a thorough preparation attack.

The gang from a criminal organization is distinguished by its weapons and a criminal aim - the commission of attacks. If the activity of a criminal organization included the manifestation of banditry, responsibility should be imposed on the totality of crimes under art. 74-2 and art. 74 CC.

3. The stability of the gang can be evidenced in particular by such signs as the stability of its composition, the close relationship between the participants, the cohesion, the permanence of forms and methods of criminal activity.

4. The necessary sign of the gang is the presence of weapons: combat, sports, hunting fire, gas and cold, as well as various explosive devices.

A sign of armament will also be in cases when the gang is armed with chemical, biological, electrical, laser, radioactive weapons.

The gang is recognized armed with the presence of weapons, at least one of its participants and awareness of it by other gang members.

5. The use of an unsuitable weapon or its mock-ups during an attack can not be considered as a sign of armament.

6. The attack should be understood as the violent impact of gang members on individuals in order to achieve a criminal result. Violence can be both physical and mental.

The attack can be expressed not only in the violent impact on people, but also in the destruction of property, buildings, premises (explosions, arsons), seizure of vehicles. Therefore, the qualification of art. 74 CC It is not excluded in cases when in the attack on specific objects there were no people there.

7. To explain that the organization of an armed gang consists in uniting the efforts of two or more persons in a stable armed group with the aim of committing attacks. Actions to organize the gang consist in selecting and recruiting participants, obtaining weapons, financing, planning attacks, distributing roles among gang members, etc.

The organization of an armed gang is a completed crime since the creation of the gang, regardless of whether the crimes that it planned were committed.

If the organizational actions of the person who preceded the creation of the gang did not lead to the formation of a gang, they are subject to qualification under Art. 15 and art. 74 CC.

8. Participation in a gang refers to activities in its interests: leadership, financing, supply of weapons, harboring gang members and instruments of crime, property obtained by criminal means, finding targets for attack, providing transport, and participating in attacks by the gang.

9. For the composition of banditry, the purpose of the attacks carried out by the gang does not matter. This can be not only the direct seizure of property, money or other values of a citizen or enterprise, institution, organization, but also murder, rape, extortion, destruction or damage to someone else's property, etc.

10. Banditry, unlike robbery and extortion committed by an organized group or by prior agreement by a group of individuals, is committed by a cohesive and stable armed group.

11. In the case of a gang committed crimes for which a more severe liability is imposed than for banditry, the offense should be qualified for a combination of crimes.

12. The courts should bear in mind that the crime provided for in Art. 74 CC , is characterized only by intentional guilt in the form of direct intent.

13. Subjects of banditry can be people who have reached the age of 16. Persons aged 14 to 16 years are responsible only for those crimes committed as part of a gang, the responsibility for which is provided from the age of 14 (Article 10

Russian Federation

Decision of the Plenum of the Supreme Court of the Russian Federation of 17.01.97 No. 1 "ON THE PRACTICE OF APPLICATION OF THE LEGISLATION ON LIABILITY FOR BANDITISM BY THE COURTS"

In connection with issues arising in the courts in the application of legislation that provides liability for banditry, the Plenum of the Supreme Court of the Russian Federation decides:

3. From other organized groups, the gang is distinguished for its armament and its criminal purposes - the perpetration of attacks against citizens and organizations.

5. A mandatory feature of the gang provided for art. 209 The Criminal Code of the Russian Federation is its armament, which presupposes the presence of a gang of firearms or cold, including missile weapons, both factory-made and homemade, various explosive devices, as well as gas and pneumatic weapons.

The use by participants of an attack of a weapon unfit for targeted use or its mock-ups can not be considered as a sign of their armament.

The gang is recognized armed if there is a weapon at least of one of its members and awareness of it by other members of the gang.

6. The attack should be understood as actions aimed at achieving a criminal result by using violence against a victim or creating a real threat of its immediate application.

The attack of the armed gang is considered to be held also in those cases when the weapons the gang members did not use.

The creation of an armed gang is in accordance with Part 1 art. 209 Criminal Code of the RSFSR ended the composition of the crime, regardless of whether the crimes that she planned were committed.

In cases where the active actions of a person aimed at creating a stable armed group, due to their timely suppression by law enforcement agencies or other circumstances beyond their control, did not lead to the formation of a gang, they should be qualified as an attempt to create a gang.

10. In accordance with Part 2 of Art. 209 of the Criminal Code of the RSFSR as banditry should qualify participation in the attack and such persons who, not being members of the gang, realize that they are participating in a crime committed by a gang.

The actions of persons who were not members of the gang and who did not take part in the attacks that they committed, but who assisted the gang in its criminal activity, should be qualified by art. 33 and the relevant part art. 209 The Criminal Code.

13. Courts should bear in mind that Art. 209 of the Criminal Code of the Russian Federation, which establishes responsibility for the creation of a gang, leadership and participation in it or in its attacks, does not provide for responsibility for the commission by members of the gang in the course of an attack of criminal acts constituting independent offenses, and in this case, art. 17th The Criminal Code of the Russian Federation, according to which, in the aggregate of crimes, a person is liable for every crime under a relevant article or part of an article of the Criminal Code of the Russian Federation.

14. According to the meaning of Art. 209 of the Criminal Code of the Russian Federation, any of the forms of banditry provided for by law are possible only with direct intent.

The subject of this crime may be a person who has reached the age of 16. Persons aged 14 to 16 who have committed various crimes within the gang are liable only for those specific crimes for which responsibility has been foreseen since the age of 14 art. 20 CC RF).

17. With the adoption of this Resolution, the Resolution of the Plenum of the Supreme Court of the Russian Federation from December 21, 1993 N 9 "On judicial practice in cases of banditry."

Chairman of the Supreme Court
Russian Federation
V.M. LEPEDEV

Secretary of the Plenum,
judge of the Supreme Court
Russian Federation
VVDEMIDOV

In connection with issues arising in the courts in the application of legislation that provides liability for banditry, the Plenum of the Supreme Court of the Russian Federation

decides:

In this regard, when considering cases of crimes committed by organized armed groups, it should be ascertained whether the activities of these groups contain any signs of banditry, and take appropriate measures and ensure that all those guilty of organizing gangs and taking part in gangs or committed they were brought to justice, provided by law for this serious crime.

2. An armed gang should be understood as a stable organized armed group of two or more persons who previously united to commit one or several attacks on citizens or on enterprises, institutions, organizations.

3. The stability of the gang can be evidenced in particular by such signs as the stability of its composition and organizational structures, the cohesion of its members, the persistence of forms and methods of criminal activity. 4. Obligatory sign of the gang, stipulated in Article 77 of the Criminal Code of the RSFSR, is

I have weapons from its members. First of all, this is combat and hunting firearms and cold steel of factory production and homemade, various explosive devices, gas weapons. When deciding whether to recognize weapons used by members of a gang during attacks, the provisions of the Law of the Russian Federation "On Arms" should be followed, and, if necessary, the conclusion of experts.

The gang is recognized armed with the presence of weapons at least of one of its members and awareness of this of other members of the gang, who admitted the possibility of its use.

5. The organization of an armed gang should be understood as any action resulting in the creation of a stable armed group with the aim of attacking citizens or enterprises, institutions and organizations.

They can be expressed in collusion, the search for accomplices, the acquisition of weapons, the development of plans and the distribution of roles among members of the gang, etc. The organization of an armed gang is in accordance with Article 77 of the Criminal Code of the RSFSR, the completed composition of the crime, regardless of whether the crimes planned by it were committed.

In those cases when active actions aimed at creating a stable armed group because of their timely suppression by law enforcement agencies or for other reasons did not lead to the creation of a gang, they should be qualified as an attempt to organize an armed gang.

6. Participation in an armed gang should be understood not only as a direct participation in gangs' attacks, but also for performing other actions in the interests of the gang: leadership, financing, supplying weapons, finding targets for attack, providing transport, etc.

7. In accordance with Article 77 of the Criminal Code of the RSFSR, banditry should be qualified to participate in the attack and those who are not members of the gang, they are aware that they are participating in the crime committed by the gang.

The actions of persons who were not members of the gang and who did not take part in the attacks that they committed, but who assisted the gang in its criminal activities, should be qualified according to articles 17 and 77 of the Criminal Code of the RSFSR.

8. The attack should be understood as actions aimed at achieving a criminal result by using violence against a victim or creating a real threat of its immediate application. The attack of the armed gang should be considered to be held also in cases when the weapons that the gang members did not use, and the purpose of the crime was achieved at the expense of the threat, expressed or obvious for the victim, of its use.

9. Article 77 of the RSFSR Criminal Code does not provide as an obligatory element of banditry composition any specific goals carried out by an armed gang of attacks. This can be not only the direct declaration of property, money or other values of a citizen, enterprise, institution, organization, but also murder, rape, extortion, destruction or damage to someone else's property, etc.

10. The courts should bear in mind that Article 77 of the Criminal Code of the RSFSR, which establishes responsibility for the organization of armed gangs, participation in them and in the attacks that they carry out, does not provide for liability for the possible consequences of criminal actions by armed gangs, the consequences of attacks forming an independent composition of a serious crime (Article 7-1 of the Criminal Code of the RSFSR).

11. To draw the attention of the courts to the fact that according to the meaning of Article 77 of the Criminal Code of the RSFSR, any of the forms of banditry provided for by law are possible only with direct intent. The subject of this crime may be a person who has reached the age of 16.

Persons aged 14 to 16 who have committed various crimes within the gang are liable only for those specific crimes for which responsibility is provided from the age of 14 (art. 10 of the Criminal Code of the RSFSR).

12. From other crimes committed by groups of people with the use of violence - part 2 of article 91 and 146, part 2 and 3 articles 91 and 148 of the Criminal Code of the RSFSR - banditry differs by a higher degree of internal organization, stability , cohesion and the armed forces of a criminal group - gangs.

13. To draw the attention of the courts to the importance of strict adherence to the principle of individualization of responsibility when assigning punishment to persons guilty of banditry. To this end, it is necessary to carefully investigate and take into account the totality of the circumstances of the case and the data on the identity of the defendants: the role and degree of the person's participation in the organization and criminal activity of the gang, the severity of the consequences resulting from the attacks that it has committed, and so on. Of particular importance is the observance of this principle when deciding on the application of an exceptional measure of punishment.

Collection of current resolutions of plenums of the Supreme Courts of the USSR, the RSFSR and the Russian Federation in criminal matters Mikhlin AS

3.32. Resolution of the Plenum of the Supreme Court of the Russian Federation "On the practice of the courts applying legislation on liability for banditry" of January 17, 1997, No. 1

In connection with issues arising in the courts in the application of legislation that provides liability for banditry, the Plenum of the Supreme Court of the Russian Federation decides:

3. From other organized groups, the gang is distinguished for its armament and its criminal purposes - the perpetration of attacks against citizens and organizations.

The use by participants of an attack of a weapon unfit for targeted use or its mock-ups can not be considered as a sign of their armament.

When deciding whether to recognize weapons used by members of a gang during an attack, the provisions of the Law of the Russian Federation "On Arms", and, if necessary, the conclusion of experts, should be guided.

The gang is recognized armed if there is a weapon at least of one of its members and awareness of it by other members of the gang.

6. The attack should be understood as actions aimed at achieving a criminal result by using violence against a victim or creating a real threat of its immediate application.

The attack of the armed gang is considered to be held also in those cases when the weapons the gang members did not use.

9. Participation in the gang is not only a direct participation in the attacks, but also the performance by members of the gang of other active actions aimed at financing it, providing weapons, transport, finding objects for attack, etc.

11. Under the commission of banditry with the use of their official position (part 3 of article 209 of the Criminal Code of the Russian Federation), one should understand the use by a person of his authority or other official powers, uniforms and attributes, service certificates or weapons, as well as information that he possesses in connection with his official position, in preparing or committing a gang attack, or in financing its criminal activities, armament, material equipment, the selection of new members of the gang, etc.

12. Article 209 of the Criminal Code of the Russian Federation does not provide as an obligatory element in the composition of banditry any specific purposes of the armed bandits' attacks. It can be not only the direct seizure of property, money or other values of a citizen or organization, but also murder, rape, extortion, destruction or damage to someone else's property, etc.

14. According to the meaning of Art. 209 of the Criminal Code of the Russian Federation, any of the forms of banditry provided for by law are possible only with direct intent.

17. With the adoption of this Decree, the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 1993 No. 9 "On Judicial Practice in Cases of Banditry", has been rendered invalid.

author Mihlin AS

2.2. Decision of the Plenum of the Supreme Court of the USSR "On the practice of the courts applying legislation on the fight against recidivism" of June 25, 1976 No. 4 (as amended by the decisions of the Plenum of the Supreme Court of the USSR of 09.12.1982 No. 10 and from 16.01.1986 No. 5) In solving the problems of