No. 11-04 of December 25, 1997
About court practice on cases on racketing
Having considered and having discussed materials of generalization of court practice on cases on racketing of alien property or the right to property, the Plenum of the Supreme Court of the Kyrgyz Republic notes that growth of the specified type of crimes is in recent years noted.
So, if in 1995 in courts of the republic it is considered cases with removal of sentences concerning 167 persons, then in 1996 it is considered - 208 persons, and in 6 months 1997 - 116 persons.
Cases of the specified category by courts were considered generally correctly, according to the law.
At the same time there are shortcomings. Requirements of Art. 21 of the Code of Criminal Procedure of the Kyrgyz Republic about comprehensive, complete and objective investigation of the facts of the case are not always fulfilled. Some courts make mistakes in case of differentiation of racketing from such crimes as robbery, robbery and arbitrariness.
When together with racketing also other crimes are committed, the attention to need of qualification of crimes on their set is not paid.
There is no single practice in case of qualification of racketing, committed repeatedly, by previous concert group of persons, in large size, entailed heavy consequences.
By hearing of cases the reasons and conditions promoting crimes are not opened. In necessary cases private determinations are not taken out on this matter.
For the purpose of elimination of noted shortcomings and uniform application of the law on responsibility for racketing, the Plenum of the Supreme Court of the Kyrgyz Republic decides:
1. Draw the attention of courts to growth and the increased public danger of racketing, need of strict respect for the provisions of the law by hearing of cases of this category.
Observing the principle of inevitability of punishment, investigating bodies and courts on each case shall establish all participants of crime and degree of fault of everyone.
2. In case of differentiation of racketing from robbery and robbery investigating bodies and courts shall mean:
- if in case of robbery and robbery use of violence or threat of its application is made only concerning the victim, then in case of racketing they can be made concerning his relatives, property, the right to property and data which the victim aims to keep in secret;
- in case of robbery and robbery use of violence or threat of its application serve as means of immediate occupancy as property of the victim, in case of racketing the threat of violence is only form of expression of mental violence, serves for reinforcement of threat to apply more serious violence in case of failure to meet requirements of the racketeer;
- in case of robbery and robbery use of violence or threat of its application is followed with simultaneous occupancy of property of the victim, in case of racketing the intention of the guilty person is directed to receipt of required property in the future.
3. The racketing integrated to direct withdrawal of property of the victim in the presence of real cumulative offenses shall be qualified in addition depending on nature of the applied violence as robbery or robbery.
4. As racketing under the threat of announcement of the dishonoring data it is necessary to qualify the requirement of cession of property or the right to the property which is followed by threat of disclosure of data about made by the victim or his relatives of offenses, and equally in other data which announcement can cause dignitary harm of the victim or his relatives. At the same time does not matter whether data under the threat of which disclosure the racketing is made are true.
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