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

of December 27, 2002 No. 29

About court practice on cases on theft, robbery and robbery

For the purpose of ensuring the correct application of the legislation on criminal liability for thefts, robberies and assaults and in connection with the questions Plenum of the Supreme Court of the Russian Federation which arose in court practice decides to make to courts the following explanations:

1. By hearing of cases about the theft, robbery and robbery which are the most widespread property offenses, courts should mean that according to the law plunder is understood as the wrongful uncompensated taking and (or) the address of alien property for benefit of the guilty person or other persons which caused damage to the owner or other owner of this property made with a mercenary motive.

On each such case courts should research the available proofs for the purpose of the correct legal qualification of actions of persons guilty of making of these crimes, non-admissions of the mistakes connected with misinterpretation of concepts secret and the opened plunders of alien property, and also in case of assessment of the circumstances provided in quality of the essential element of offense aggravating punishment.

2. As secret plunder of alien property (theft) it is necessary to qualify actions of person who made unlawful taking of property in the absence of the owner or other owner of this property, or strangers or though at their presence, but it is imperceptible for them. When specified persons saw what is stolen, however the guilty person, proceeding from surrounding situation, believed what is effective secretly, the deeds also are secret plunder of alien property.

3. Open plunder of alien property, the stipulated in Article 161 Criminal Code of the Russian Federation (robbery), such plunder which is committed in the presence of the owner or other owner of property or in full view of strangers when person committing this crime understands that persons who are present at the same time understand illegal nature of its actions irrespective of whether they took measures to suppression of these actions is or not.

4. If person which is present at unlawful taking of alien property does not understand illegality of these actions or is close relative of the guilty person who expects with respect thereto that during withdrawal of property he will not meet counteraction from the specified person, the deeds should be qualified as theft of alien property. If the listed persons took measures to suppression of plunder of alien property (for example, required to stop these illegal actions), then responsibility of the guilty person for deeds comes under article 161 Criminal Code of the Russian Federation.

5. If during making of theft of action of the guilty person are found the owner or other owner of property or other persons, however the guilty person, understanding it, continues to make unlawful taking of property or its deduction, the deeds should be qualified as robbery, and in case of use of violence, life-threatening either health, or threat of application of such violence - as robbery.

6. Theft and robbery are considered ended if the property is withdrawn and the guilty person has real opportunity to use it or to dispose at discretion (for example, to turn stolen property in own favor or for benefit of other persons, to dispose of it with a mercenary motive otherwise). Robbery is considered ended from the moment of assault for the purpose of plunder of the alien property committed using violence life-threatening or health, or with threat of application of such violence.

7. Do not form structure of theft or robbery the illegal actions directed to occupancy by someone else's property not with a mercenary motive, and, for example, for the purpose of its temporary use with the subsequent return to the owner or in connection with the expected right to this property. Depending on the facts of the case such actions in the presence to that the bases are subject to qualification under article 330 Criminal Code of the Russian Federation or other articles of the Criminal Code of the Russian Federation.

When unlawful taking of property is made in case of hooliganism, rape or other criminal acts, it is necessary to establish, for what purpose person withdrew this property.

If person pursued the mercenary aim, deeds to them depending on occupancy method property shall be qualified on sets as the corresponding property offense and hooliganism, rape or other crime.

8. If the organizer, the instigator or the helper directly did not participate in making of plunder of alien property, the deeds cannot be qualified by the principal offender as made by group of persons by previous concert. In these cases owing to part three of article 34 Criminal Code of the Russian Federation of action of the organizer, the instigator or the helper it is necessary to qualify with reference to article 33 Criminal Code of the Russian Federation.

9. In case of qualification of actions of guilty persons as making of plunder of alien property group of persons by previous concert the court should find out whether such collusion of accomplices prior to the actions which are directly directed to plunder of alien property whether the arrangement on cast for the purpose of implementation of felonious intent and also what specifically actions are made by each contractor and other assisting offenders took place took place. In sentence it is necessary to estimate proofs concerning each contractor of the committed crime and other accomplices (organizers, instigators, helpers).

10. Proceeding from sense of part two of article 35 Criminal Code of the Russian Federation criminal liability for theft, the robbery or robbery committed by group of persons by previous concert comes and when according to the preliminary arrangement between accomplices direct withdrawal of property performs one of them. If other participants according to cast made the coordinated actions directed to rendering direct assistance to the contractor in crime execution (for example, person did not get into the dwelling, but participated in breaking of doors, locks, lattices, according to in advance taken place arrangement exported stolen, secured other accomplices from possible detection of the committed crime), deeds them is soispolnitelstvy and owing to part two of article 34 Criminal Code of the Russian Federation does not require additional qualification under article 33 Criminal Code of the Russian Federation.

Actions of person who was directly not participating in plunder of alien property, but promoting making of this crime by councils, instructions or in advance promising to hide traces of crime, to eliminate the obstacles which are not connected with assistance to direct principal offenders, to sell stolen, etc., it is necessary to qualify as partnership in deeds in the form of complicity with reference to part the fifth article 33 Criminal Code of the Russian Federation.

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