of January 17, 1997 No. 1
About practice of application by courts of the legislation on responsibility for gangsterism
Due to the questions arising at courts in case of application of the legislation providing responsibility for gangsterism, the Plenum of the Supreme Court of the Russian Federation decides:
1. Draw the attention of courts to special peril of the gangsterism posing real threat as for personal security of citizens and their property, and for normal functioning of the state, commercial or other organizations.
2. It is necessary to understand organized steady armed group from two and more persons which in advance united for making of attacks on citizens or the organizations as gang. The gang can be created also for making of one, but requiring thorough training of attack.
3. The gang differs from other organized groups in the armament and the criminal objectives - making of attacks on citizens and the organizations.
4. About stability of gang can witness, in particular, such signs as stability of its structure, close interrelation between her members, coordination of their actions, permanency of forms and methods of criminal activities, duration of its existence and quantity of the committed crimes.
5. The obligatory sign of gang provided by Art. 209 of the Criminal Code of the Russian Federation is her armament assuming availability at participants of gang of fire or cold, including throwing weapon, both factory production, and self-made, different destructive devices, and also gas and pneumatic weapon.
Use by participants of attack unsuitable to target use of weapons or its prototypes cannot be considered as sign of their armament.
In case of the solution of question of recognition by weapon of the objects used by members of gang during attack it is necessary to be guided by provisions of the Law of the Russian Federation "About weapon", and in necessary cases and the expert opinion.
The gang is recognized armed in the presence of weapon at least at one of her members and awareness on it of other members of gang.
6. It is necessary to understand the actions directed to achievement of criminal result by use of violence over the victim or creations of real threat of its immediate application as attack.
Attack of the armed gang is considered taken place and when the weapon which was available for members of gang was not used.
7. Creation of gang assumes making of any actions which result was formation of organized steady armed group for the purpose of attack on citizens or the organizations. They can be expressed in collusion, finding of accomplices, financing, acquisition of weapon, etc.
Creation of the armed gang is according to p.1 Art. 209 of the Criminal Code of the Russian Federation the ended actus reus irrespective of whether the crimes planned by it were committed.
When the active actions of person directed to creation of steady armed group owing to their timely suppression by law enforcement agencies or on other circumstances which are not depending on this person, did not lead to emergence of gang, they shall be qualified as attempt at creation of gang.
8. Under the direction of gang decision making, connected as with planning, material security and the organization of criminal activities of gang, and with making of specific attacks by it is understood.
9. Participation in gang represents not only direct participation in the assaults committed by it, but also accomplishment by members of gang of other active actions directed to its financing, providing with weapon, transport, identification of objects for attack, etc.
10. According to the p. 2 of Art. 209 of the Criminal Code of the Russian Federation as gangsterism participation in the committed assault and such persons who without being members of gang shall be qualified, understand that take part in the crime committed by gang.
Actions of the faces which were not consisting members of gang and not taking part in the assaults committed by it but which rendered assistance to gang in its criminal activities should be qualified according to Art. 33 and the corresponding part of Art. 209 of the Criminal Code of the Russian Federation.
11. With use of the official position (the p. 3 of Art. 209 of the Criminal Code of the Russian Federation) it is necessary to understand use by person of the imperious or other office powers, uniform and attributes, official IDs or weapon as making of gangsterism, and equally in data which it has in connection with the official position, by preparation or making by gang of attack or during the financing of its criminal activities, arms, material equipment, matching of new members of gang, etc.
12. Article 209 Criminal Code of the Russian Federation does not provide in quality of obligatory element of structure of gangsterism of any specific purposes performed by the armed gang of attacks. It can be not only direct occupancy property, money or other values of the citizen or the organization, but also murder, rape, racketing, destruction or damage of alien property etc.
13. Courts should mean that Art. 209 of the Criminal Code of the Russian Federation establishing responsibility for creation of gang, management and participation in it or in the assaults committed by it does not provide responsibility for making by members of gang in the course of attack of the criminal acts forming independent crime components in this connection in these cases it is necessary to be guided by provisions of Art. 17 of the Criminal Code of the Russian Federation according to which in case of cumulative offenses person bears responsibility for each crime under the relevant article or part of the article of the Criminal Code of the Russian Federation.
14. In sense of Art. 209 of the Criminal Code of the Russian Federation making of any of the gangsterism forms provided by the law perhaps only with direct intention.
Person which reached 16-year age can be the subject of this crime. Persons aged from 14 up to 16 years, the committed different crimes as a part of gang, are subject to responsibility only for those specific crimes, responsibility for which is provided from 14-year age (Art. 20 of the Criminal Code of the Russian Federation).
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