RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of August 18, 1992 No. 10

About accomplishment by courts of the leading explanations of the Plenum of the Supreme Court of the Russian Federation on application of the legislation on responsibility for racketing

Having discussed the course of accomplishment of the resolution of the Plenum of the Supreme Court of RSFSR of May 4, 1990 No. 3 "About court practice on cases on racketing", the Plenum notes that the explanations made in this resolution promoted the correct application by courts of the legislation on responsibility for racketing and those samympovysheniya of quality of justice.

At the same time the carried-out generalization showed that by hearing of cases of this category not in all cases requirements of the law on need of comprehensive, complete and objective investigation of circumstances of the committed crime are consistently fulfilled; Plenum explanations concerning criteria of otgranicheniye of the racketing connected to the violence from robbery and robbery and recognition of crime committed by organized group are not always considered. Mistakes in case of qualification of criminal acts and assignment of punishment by the guilty person are as a result made.

Not isolated facts when courts do not fulfill requirements of the law on obligatory purpose of confiscation of property for qualified types of racketing and do not consider Plenum explanations that non-use of confiscation in these cases is possible only in the presence of the conditions provided by Art. 43 of UK RSFSR with indication of in sentence of motives of the made decision.

Along with it materials of generalization demonstrate that courts experience difficulties in case of qualification of racketing on the basis of causing major damage, in case of determination of nature of the violence applied in the course of making of these criminal acts and differently resolve issue of availability or absence in actions of persons accused of such qualifying sign as frequency.

The plenum of the Supreme Court of the Russian Federation decides:

1. Draw the attention of courts to need of elimination of noted shortcomings and further enhancement of practice of hearing of cases about racketing taking into account explanations of the Plenum of the Supreme Court of the Russian Federation on application of the legislation on responsibility for this crime.

2. Due to the changes in the legislation and need of explanation of some questions of its application to bring in the resolution of the Plenum of the Supreme Court of RSFSR of May 4, 1990 N3 "About Court Practice on Cases on Racketing" the following changes and amendments:

a) add the resolution with Items 3a, 3b, 3v, 5a and 5b of the following content:

"3a. The racketing should be considered repeated in all cases when person made one of the crimes specified in notes to st.st.89 and 144 UK RSFSR earlier regardless of whether it was condemned for them.

The racketing cannot be qualified as repeated if by the time of making of this crime prescriptive limit of criminal prosecution for earlier committed crime specified in notes to st.st.89 and 144 UK RSFSR expired and also if the criminal record for it is extinguished or removed according to Art. 57 of UK RSFSR, or is removed owing to the act of amnesty or pardon.

Do not form frequency the numerous requirements of cession of property or the right to property turned to one or several persons if these requirements are combined by single intention and are directed to occupancy by the same property.

3b. In case of qualification of crime on the sign provided by the p. 3 of Art. 95 UK RSFSR - causing major damage should be guided UK RSFSR containing in the note to Art. 89 by the cost criterion established by the Law of the Russian Federation of December 5, 1991 according to which act is considered to the state or public organization which caused major damage if it is made on the amount pyatidesyatikratno exceeding the minimum wage established by the legislation of the Russian Federation.

At the same time it is necessary to proceed from the minimum wage existing at the time of crime execution. If by the time of legal proceedings, the resolution of sentence or consideration of the case in higher degrees of jurisdiction the legislation establishes higher minimum wage, then this circumstance cannot form the basis for exception of accusation of the specified qualifying sign.

3 century. Qualifying racketing of personal property of citizens (the p. 3 of Art. 148 of UK RSFSR) on the basis of causing major damage, it is necessary to consider the cost of the withdrawn, damaged or destroyed property, and also its quantity and the importance for the victim, financial position of the last, in particular the sizes of its income, availability of dependents, etc.

5a. Under violence, not life-threatening and health as the qualifying racketing sign (the p. 2 of Art. 95 and the p. 2 of Art. 148 of UK RSFSR) it is necessary to understand beating, causing the slight injury which did not entail short-term disorder of health or insignificant permanent disability and also other violent acts connected with causing to the victim of physical pain or with restriction of its freedom if it did not create danger to life and health.

5b. Under violence, life-threatening and health as the qualifying racketing sign (the p. 3 of Art. 95 and the p. 3 of Art. 148 of UK RSFSR) the victim of less heavy bodily harm should understand causing, or the slight injury which entailed short-term disorder of health or insignificant permanent disability, and also other violence which though did not do the specified harm, but at the time of application created real danger to life and health of the victim";

b) exclude from Item 6 of the word "causing by it in the course of racketing of the heavy bodily harms listed in p.1 Art. 108 of UK RSFSR";

c) state the first paragraph of Item 7 in the following edition:

"If the racketing is made with causing heavy bodily harms, the deeds should be qualified on cumulative offenses, provided by the p. 3 of Art. 95 (the p. 3 of the Art. 148) and the corresponding part of Art. 108 of UK RSFSR".

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