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 effects.
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.
If about the victim or his relatives data of obviously slanderous or offensive nature are announced, the deeds in the presence to that the bases should be qualified on set with slander, insult.
5. The racketing should be considered numerous in all cases when person made earlier: theft, robbery, robbery, gangsterism, plunder of firearms, ammunition or explosives and plunder of drugs, irrespective of whether it was condemned for them.
Not momentariness is absent if by the time of making of racketing the criminal record for former crime is removed or extinguished in the procedure established by the law, prescriptive limits of criminal prosecution for former crime expired, person was legally exempted from criminal liability for former crime.
Do not form not momentariness of the requirement 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.
6. In case of qualification of racketing on the basis of the requirement of cession of property in large size, it is necessary to be guided by the same cost criterion which is established for the large amount of plunder. At the same time the property value is recognized large according to the Resolution of General Court of Jogorku Kenesh of the Kyrgyz Republic of February 16, 1996 No. 343-1, if it by 200 times exceeds the minimum monthly wage of work at the time of crime execution.
7. It is necessary to understand racketing in which two or more persons who in advance agreed about its joint making directly participated as the racketing made by previous concert by group of persons.
Preliminary should consider the collusion which took place both long before the beginning of making of racketing, and just before its beginning.
Have no period between collusion and the beginning of actions of crucial importance.
In case of making by the member of criminal group of other crime which is going beyond agreed actions of the guilty person are subject to qualification as execution excess under the relevant articles of the Criminal Code of the Kyrgyz Republic.
8. The racketing integrated to premeditated murder is covered by disposition of item 8 of Art. 97 of UK of the Kyrgyz Republic in edition of September 18, 1997 and does not require additional qualification about racketing.
If murder is committed for the purpose of concealment of the fact of racketing, actions of the guilty person should be qualified on cumulative offenses (Art. 170 and item 13 of Art. 97 of UK in edition of September 18, 1997).
9. Explain to courts that the racketing made under the threat of use of violence, using violence with causing to the victim of any bodily harms is covered by the corresponding parts of Art. 170 of UK in edition of September 18, 1997 and does not require additional qualification.
10. In case of the racketing integrated to taking of the hostage, kidnapping, illegal imprisonment of the imposed requirement to the third parties which was injured for achievement as conditions of release, actions of the guilty person should be qualified on set with the relevant articles of the Criminal Code of the Kyrgyz Republic.
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