of September 25, 2003 No. 9
About court practice on cases on the crimes connected with creation and activities of organized groups, gangs and the criminal organizations
Having discussed practice of consideration by courts of cases on the crimes connected with creation and activities of organized groups, gangs and the criminal organizations for the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts that making of crimes by organized groups, gangs and the criminal organizations is the most dangerous form of crime. Therefore comprehensive, complete and objective investigation of circumstances by hearing of cases of this category, establishment of role and extent of participation in the committed crimes of each participant of criminal forming, clarification of the reasons and conditions promoting their creation and activities are important condition of the resolution of right judgment sentence.
2. Owing to p.1 Art. 18 of UK it is necessary to understand intentional participation in it of two or more persons which previously united in the managed steady group for joint criminal activities as crime execution by organized group.
Unlike previous concert of collaborators on making of specific crime (Art. 17 of UK) preliminary jointness of organized group means making of purposeful actions for its creation, forming of structure, determination of the place and role (distribution of functions) of each participant. About preliminary jointness of criminal group can witness, in particular, planning of criminal activities, coordination of actions of accomplices.
3. Recognition of the criminal group managed requires, as a rule, availability in its list of the head (several heads) performing operations on coordination of criminal activities of this group, management of it, to maintenance of the intra group discipline based on subordination of participants of group to her head, supported with his authority, forced force, etc.
About stability of group can witness stability of list of participants or the main kernel of group, and also duration of criminal activities, close interrelation between her members, capability of group to continue the activities in case of disposal of certain participants.
4. The purpose of organized group are the joint criminal activities expected, as a rule, long period of time and making of different crimes, uncertain on duration, or one, but continued crime (for example, plunders).
The isolated fact of the crime execution requiring long preparation can be acknowledged as the act made by organized group only in the presence of proofs that her participants intended to continue also further joint criminal activities.
5. Courts need to mean that gang (Art. 286 of UK) the armed organized group created with the special purpose - for making of attacks on the companies, organizations, organizations or on citizens is recognized.
Armament of gang assumes availability of any weapon recognized by that according to the Law of the Republic of Belarus of November 13, 2001. "About weapon", and also ammunition, explosives or destructive devices, both factory production, and produced by self-made method, at least at one of participants of gang in case of awareness on it of her other members. Use during attack unsuitable to target use of weapons or its prototypes cannot be considered as armament sign even if such objects were perceived injured as real weapon.
It is necessary to understand direct use of violence by participants of gang to other persons for achievement of criminal result as attack, and attack can be expressed not only in violent impact on people, but also in the illegal invasion into the dwelling, other room accompanied with arsons, explosions, riots, hijacking of vehicles, etc. As attack it is also necessary to regard actions of gang in case of which weapon was not used, and the objectives of attack were achieved by way of threat, obvious to the victim, and are equal in case of absence of people at the time of attack on object if the possibility of use of weapons made a reservation participants of gang in advance.
Attack of gang can be not only for the purpose of direct occupancy property, but also for making of others of prestupleniyubiystvo, racketing, taking of hostages, destruction or damage of alien property.
6. Explain to courts that if assault with use of weapon was committed for direct occupancy by property by group which was created and was effective not for the purpose of attack on the companies, organizations, organizations or citizens, and for making of other crimes (for example, smuggling, counterfeit of money) and if it was only one of episodes of criminal activities, such attack should be qualified as the robbery made by organized group (the p. 3 of Art. 207 of UK), but not as gangsterism.
7. Draw the attention of courts that it is necessary to understand any actions which result was formation of the corresponding criminal forming as creation of gang (matching of participants, plan development of criminal activities, cast, acquisition of weapon).
Creation of gang is recognized completed crime from the moment of its education irrespective of real making by gang of attacks. If actions of person for creation of gang did not lead to its education, the deeds are subject to qualification according to Art. 14 and Art. 286 of UK.
8. The participant of organized group, including gang, it is necessary to recognize person who, authentically knowing about the purposes and nature of this group, is its part and participates in any form in preparation or making of crimes. The participant of gang also person who agreed to participation in such criminal forming irrespective of making of any actions for the benefit of gang is recognized.
The person who is not the participant of organized group or gang, but was directly involved in making of any crime in their structure, understanding that is effective together with them, bears responsibility for crime execution by organized group or gang.
The action of the person who rendered assistance to criminal activities of organized group or gang, but not being their part and which was not directly involved in the committed crimes it is necessary to regard as complicity and to qualify according to the p. 6 of Art. 16 and the relevant article of the Special part of UK.
9. According to Art. 19 of UK the criminal organization consolidation of criminal forming which can have signs of both organized group, and gang, either organizers (heads) of such groups, or their participants for achievement of the purposes which are specially called in the law is recognized: development or implementation of measures for implementation of criminal activities or to creation of conditions for its maintenance and development.
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