The organization of a criminal association (criminal organization)...

The organization of a criminal association (criminal organization) or participation in it (it)

(in the amended version of Federal Law No. 245-FZ of November 3, 2009)

1. Creation of a criminal association (criminal organization) for the purpose of jointly committing one or several grave or especially grave crimes or directing such a community (organization) or its structural subdivisions, as well as coordinating criminal actions, creating stable links between various independently operating organized groups, the development of plans and the creation of conditions for the commission of crimes by such groups or the division of spheres of criminal influence and criminal proceeds they, committed by a person using their influence on participants in organized groups, as well as participation in the meeting of organizers, leaders (leaders) or other representatives of organized groups with a view to committing at least one of the specified crimes -

shall be punishable by imprisonment for a term of twelve to twenty years, with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to five years, or without it and with restriction of freedom for a period of one year up to two years (as amended by Federal Law No. 377-FZ of December 27, 2009).

2. Participation in a criminal association (criminal organization) -

shall be punishable by imprisonment for a term of five to ten years, with a fine of up to five hundred thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to three years, or without it and with restraint of liberty for up to one year (as amended by Federal Law No. 377-FZ of December 27, 2009).

3. Acts stipulated by parts one or two of this article, committed by a person using his official position, -

shall be punished by imprisonment for a term of fifteen to twenty years, with a fine of up to one million rubles or in the amount of the wage or other income of the convicted person for a period of up to five years, or without it and with restriction of freedom for a period of one year up to two years (as amended by Federal Law No. 377-FZ of December 27, 2009).

4. Acts provided for in part one of this article committed by a person occupying the highest position in the criminal hierarchy -

is punishable by imprisonment for a period of fifteen to twenty years or by life imprisonment.

Note. A person who voluntarily ceases to participate in a criminal association or a structural subdivision or a constituent unit or an assembly of organizers, leaders (leaders) or other representatives of organized groups and actively contributed to the disclosure or suppression of these crimes, is released from criminal

Responsibility, if its actions do not contain other elements of the crime.

1. The peculiarity of this crime is that criminal responsibility is established for the fact of the organization of a criminal community (a criminal organization) or participation in it, regardless of whether any crimes were committed.

The resolution of the US Armed Forces Plenum of 10.06.2010 No. 12 provides an interpretation of the concept of the criminal community, its signs, as well as signs of all elements of the composition of this crime.

2. The objective side of the act in question is expressed: a) in the creation of a criminal association (criminal organization) for the purpose of jointly committing one or more serious or particularly serious crimes (part 1 of the article being commented); b) the management of such a community (organization) or its structural subdivisions (part 1 of the article being commented); c) coordination of criminal acts (part 1 of the article being commented); d) the establishment of stable links between various independently operating organized groups or the division of spheres of criminal influence and criminal incomes between them (part 1 of the article being commented); e) participation in the meeting of the organizers, leaders (leaders) or other representatives of organized groups (part 1 of the article being commented); f) participation in a criminal community (criminal organization) (part 2 of the article being commented).

3. In part 4 of Art. 35 of the Criminal Code it is determined that the crime is recognized as committed by the criminal community (criminal organization), if it is committed by a structured organized group or an association of organized groups acting under a single leadership whose members are united for the purpose of jointly committing one or more serious ones or especially grave crimes for obtaining directly or indirectly financial or other material benefits.

A criminal community (a criminal organization) differs from other types of criminal groups, including an organized group, a more complex internal structure, the existence of the goal of joint committing grave or especially serious crimes to obtain directly or indirectly financial or other material benefits, and the possibility of combining two or more organized groups for the same purpose.

By direct receipt of financial or other material benefit is understood as the commission of one or several serious or especially serious crimes, as a result of which direct money laundering in favor of members of the criminal community (criminal organization) .

By indirect receipt of financial or other material benefit means the commission of one or more serious or particularly serious crimes that do not directly infringe on someone else's property, but cause further receipt of money and rights to property or other property benefit not only by members of the community (organization), but also by other persons (paragraph 2 of the resolution of the Plenum of the US Armed Forces dated 10.06.2010 No. 12).

A criminal community (a criminal organization) can carry out its criminal activities in the form of a structured organized group or a union of organized groups operating under a single leadership.

By structured organized group should be understood as a group of persons who have previously united for the commission of one or more serious or particularly serious crimes, consisting of units (subgroups, links, etc.), characterized by stability of the composition and consistency of their actions. In addition to the unified leadership of such a group, the interaction of its various units is inherent in order to realize common criminal intentions, the distribution of functions between them, the existence of a possible specialization in the performance of specific actions in the commission of a crime and other forms of ensuring activities.

Under the structural subdivision of a criminal association (criminal organization) should be understood as a functionally and (or) territorially separate group consisting of two or more persons (including the leader of this group), which, within and in accordance with goals of the criminal community (criminal organization) carries out criminal activities. Such structural units, united to solve common tasks of a criminal community (criminal organization), can not only commit certain crimes, but also perform other tasks aimed at ensuring their functioning.

The unification of organized groups assumes the existence of a single leadership and stable links between independently operating organized groups, joint planning and participation in the commission of one or more serious or especially serious crimes, joint implementation of other actions related to the functioning of such association.

4. Characteristic features of the criminal community (criminal organization) are the organization, structuredness and special purpose of the joint commission of serious or especially serious crimes to obtain directly or indirectly financial or other material benefits.

Organizationality assumes a clear distribution of functions among accomplices, careful planning of criminal activity, provision of criminal activity with tools and means for committing a crime, community security, establishing links with corrupt officials, having a common material and financial base, etc.

For example, in the case of S., E. and D., the conviction regarding the conviction under Part 2 of Art. 210 UK, E. for Part 1 of Art. 210 of the Criminal Code and the case was dismissed for lack of corpus delicti in their actions, since such circumstances are not established.

The character of the structure of the criminal community (criminal organization) characterizes its (its) structure, internal structure, including the availability of leadership, the hierarchy of organized groups, units, criminal specialization, established rules of relationships and behavior of members of the criminal community , discipline, etc.

For example, in the case of X., K., S., B., G., it is recognized that a criminal community was created with the aim of committing embezzlement of citizens' money by fraud. Convicts engaged in "scam". with the purpose of committing theft of money by fraudulent means. In each group, referred to as the "brigade", there was a clear distribution of roles, the definition of "jobs", the development of new "points", the collection of money, the involvement of citizens, submission to the leader of the group, the daily definition of the start and end of criminal activity. The units of the criminal community were associations of 10 or more persons under a single leadership with a clear distribution of roles between participants, rigid internal discipline. Simultaneously, either one or several organized groups acted in turn, the stolen money of citizens accumulated by the leaders of criminal groups.

Sign of the criminal community (criminal organization) is the presence of the specified in Part 1 of Art. 210 of the Criminal Code special purpose of the joint commission of one or more serious and especially serious crimes.

Although the sign of cohesion of the criminal community (criminal organization) is not directly specified in the law, however their criminal activity is determined by the compatibility of crimes.

Criminal responsibility for the creation of a criminal association (criminal organization) or for participation in it (it) occurs in cases when the leaders (organizers) and members of this community (organizations) are united by the intention to commit grave and (or) especially grave crimes at awareness of the common goals of the functioning of such a community (organization) and its belonging to it (it).

5. The composition of the crime in question is formal.

Creation of a criminal association (criminal organization) for the purpose of joint execution of one or more serious or especially serious crimes is considered to be "finished" from the moment of their actual formation, the creation of an organized group of structural units or an association of organized groups and committing actions that testify to the readiness of the criminal community (criminal organization) to realize their criminal intentions, regardless of whether the planned crimes are committed.

This can be expressed, for example, in obtaining the consent of the members of the community, organizing, uniting organizers, leaders for joint united criminal activity, subordination to the leader of previously created and already existing organized groups, planning the commission of grave or especially serious crimes, the division of territories, zones of influence, industries, the scale of criminal activity, its financing, the preservation of the subculture, penalties and incentives, the legalization of criminal proceeds, e law enforcement agencies, the establishment of the qualified legal aid, criminal ties with the authorities, bribery, and other necessary for the implementation of criminal activity and action, etc.

6. Concerning the leadership of the criminal community (criminal organization) or the structural units completed , the act must be recognized from the moment of obtaining the consent of the person to perform the relevant management functions.

By leadership of the criminal community (criminal organization) or the structural units within it, it is necessary to understand the implementation of organizational and (or) managerial functions in relation to the criminal community (criminal organization), his (her) structural units, as well as its individual participants, both in the commission of specific crimes, and in ensuring the activities of the criminal community (criminal organization).

Such leadership can be expressed, in particular, in the definition of goals, in the development of general plans of activity, in the preparation for the commission of specific grave or especially serious crimes, in the performance of other actions aimed at achieving the set goals, for example, in the distribution of roles between members community, in the organization of material and technical support, in developing ways of committing and concealing committed crimes, in taking security measures, in secrecy, in distributing funds received from a criminal activity nosti in the legalization (laundering) of funds obtained by criminal means, the recruitment of new members, the implementation of the criminal members of the community (criminal organization) to state authorities.

The leadership of a criminal community (a criminal organization) can be carried out solely by the leader of the criminal community (criminal organization) and by two or more persons united for joint leadership (for example, the leader of the criminal community (criminal organization), the head of the structural unit, the head ( leader) of an organized group).

7. By coordination of criminal acts it is necessary to understand their coordination between several organized groups belonging to a criminal community (criminal organization), for the purpose of joint fulfillment of planned crimes.

By creating stable links between various independently operating organized groups, it is necessary to understand, for example, the actions of a person to unite such groups in order to carry out joint actions for planning, committing one or several serious or especially serious crimes.

Responsibility for the coordination of criminal activities, the establishment of stable links, the development of plans and the creation of conditions for the commission of crimes or the division of spheres of criminal influence and criminal proceeds committed by a person using his influence on participants in organized groups comes from the moment of actual establishment of contacts and interaction in the purpose of committing these criminal acts.

The criminal responsibility of a person who took part in a meeting of organizers, leaders (leaders) or other representatives of organized groups, occurs when such a meeting discussed issues related to the planning or organization of the commission of acts described in the disposition of Part 1 commented article.

8. The person who created the criminal community (criminal organization), his (her) leader, and also the persons who are in charge of collective management of such a community (organization) bear criminal responsibility under part 1 of the article being commented for committing at least one of the criminal actions indicated in it, and also on the relevant articles of the Criminal Code for all crimes committed by other participants in the criminal community (criminal organization), even if they did not directly participate in the commission of specific crimes, but they taken up and their intent.

Additional qualification of the actions of the organizer or leader of the criminal community under Part 2 of the article is not required.

9. Participation in a criminal association (criminal organization) is considered to be "completed" from the moment of the commission of at least one of the specified crimes or other specific actions to ensure the activity of the criminal community (criminal organization).

Under participation in a criminal community (criminal organization) should be understood as entering the community (organization), as well as developing plans for the preparation of one or more serious or particularly serious crimes and (or) direct the commission of these crimes or the performance of a person's functional duties to ensure the activities of such a community, for example, financing, information supply, documentation, creation of conditions for committing crimes, etc.

Persons who are not members of a criminal association (criminal organization), in providing one-time assistance to their activities, are responsible for complicity in the form of complicity, as well as for actions that constitute an independent crime.

10. The criminal liability of a participant in a criminal association (criminal organization) comes regardless of his awareness of the actions of other participants and the circumstances of planned and committing crimes.

In cases where a participant in a criminal association (a criminal organization) commits a crime that was not covered by the intent of the other participants, when the crime was committed not in connection with the plans of a criminal association (criminal organization), its actions are considered an excess of the performer.

In the absence of an agreement with other members of the criminal community (criminal organization), the actions committed by the participant of this community (organization) aimed at ensuring the functional activity of the community (organization) are subject to qualification under the relevant article of the Criminal Code and the article being commented.

If the members of the criminal community (criminal organization), along with participation in the community (organization), created a stable armed group (gang) or led it, then the deed forms a real set of crimes, subject to qualification under art. 209 CC and the commented article, and if there are also grounds for participation in another specific crime.

11. The subjective side of the crime is characterized by direct intent. A mandatory goal is a special goal - the joint commission of one or more serious or especially serious crimes.

12. The subject of the crime is a sane individual who has reached the age of 16. Persons aged 14 to 16 years who committed specific crimes together with members of a criminal association (criminal organization) are liable to criminal liability only for those crimes for which responsibility is provided for in Art. 20 of the Criminal Code from the age of 14.

13. Part 3 of the commented article provides for qualified composition of the crime - committing the acts provided for in Parts 1 and 2 of the article being commented, by a person with using his official position. The subject of this crime is special.

By using your official position should be understood as similar to those provided in Art. 209 CC. This is not only the deliberate use by the person of his official powers, but also the influence, based on the importance and authority of the office he occupies, on the person in his subordination to perform certain actions aimed at creating a criminal community (criminal organization) or participating in (her).

Persons who committed such acts should be referred to as officials, as well as civil servants and employees of local self-government bodies who are not among the officials, as well as persons permanently, temporarily or by special authority performing organizational, administrative or economic duties in a commercial organization regardless of the form of ownership or in a non-profit organization that is not a state or municipal institution.

14. Part 4 of the commented article also provides for qualified composition crimes - the acts provided for by part 1 of the article being commented committed by a person occupying the highest position in the criminal hierarchy.

When deciding on such a subject, it is necessary to establish the position occupied by this person in the criminal hierarchy, in which the actions of such a person to create or direct a criminal community (criminal organization) or to coordinate criminal acts, create stable links between various independently operating organized groups or under the division of spheres of criminal influence and criminal incomes, as well as other criminal acts that testify to its authority and leadership in criminal co-operation exist (criminal organization). The leadership of such a person in the criminal hierarchy can be evidenced by the existence of links with extremist and (or) terrorist organizations or the presence of corruption ties, etc.

15. In Primach, three conditions for the complete release of a person from criminal liability are provided for in the commented article: 1) voluntary termination of participation in a criminal association (criminal organization) or its structural subdivision, or meeting of organizers, leaders (leaders) or other representatives of organized groups; 2) active promotion of the disclosure or suppression of this crime; 3) the absence of a different crime in his actions.

Voluntary implies the termination of a person's participation in a criminal community (criminal organization) of his own free will, regardless of motives, in the absence of forced circumstances, provided he has an objective opportunity to continue his participation. For example, a person realized his error and error of participation in the relevant criminal formation, the futility of further participation, repented, began to fear for his fate or for the fate of family members, close personalities, etc.

Active promotion assumes such actions by a person as the appearance of a guilty party, reporting to the law enforcement authorities certain data about the criminal community (criminal organization), its leaders, committed crimes, money and property obtained by criminal means, weapons and means of crime, etc., which can be committed both during the period of the person's being in the criminal structure, in particular with a view to terminating his activity, and after his actual withdrawal from it.

If there is a crime in the actions of the guilty person of another crime, criminal responsibility for this crime is not ruled out.

16. It should be noted that the Criminal Code does not envisage the commission of a crime by a criminal association (a criminal organization) in any of the crimes as a qualifying or particularly qualifying feature. However, if the criminal community (criminal organization) commits a crime where an organized group is indicated as a qualifying or particularly qualifying attribute, then this crime is qualified on this basis, since the criminal community (criminal organization) is one of the types of organized group. If the composition of the committed crime does not provide for the commission of an organized group as a qualifying sign, then the actions of the person are subject to qualification on the basis of a qualifying criterion "group of persons by prior conspiracy," and, in its absence, on the basis of a "group of persons".

For example, in the case of B., 3., S., C., K. and others it is recognized that the actions of persons who participated in the criminal community for the purpose of theft of petroleum products from the pipeline and committed thefts are reasonably qualified under Part 2 of Article . 210 and by a & quot ;, b Part 3 of Art. 158 CC.

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