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Approved by Presidium of the Supreme Court of the Russian Federation on September 28, 2011

The overview of court practice of the Supreme Court of the Russian Federation for the second quarter 2011

Court practice on criminal cases

Questions of qualification of crimes

1. The face which for the purpose of theft making provided information on availability at the victim of large amount of money and time of its absence in the apartment is reasonably recognized as court the helper in this crime though other accomplices (contractors) committed robbery.

The item, having information on availability in the apartment K. large amount of money, at least 100 000 US dollars, previously agreed with N., At., T. and the other person concerning whom criminal case is allocated in separate production, about plunder of money by theft. Shall receive 10% of the stolen amount for provision of information of P., personally without participating in theft.

Having received from P. the message that the victim is absent in the city, N., At. and the other person concerning whom criminal case is allocated in separate production for the purpose of making of theft tried to get through window into the apartment and to steal money, but could not make it as the victim appeared in the apartment and found criminal encroachment. Convicts fled the scene.

However at the same night, having convinced that the victim did not call police officers, specified persons made the second attempt as a result of which they fraudulently got into the apartment and, having applied violence to the victim, stole at it money and property.

P.'s actions are qualified by court according to the p. 5 of the Art. 33, subitem "and", "in", "" of the p. 2 of Art. 158 of the Criminal Code of the Russian Federation (in edition of the Federal Law of June 13, 1996 N 63-FZ).

The condemned P. and its lawyer in writs of appeal asked to requalify P.'s actions on the p. 5 of the Art. 33, of the p. 3 of the Art. 30, of subitem "and", "in", "" of the p. 2 of Art. 158 of the Criminal Code of the Russian Federation as the first attempt to commit theft was not successful, and afterwards the property at the victim was stolen in a different way about what P. did not agree with convicts.

The judicial board on criminal cases of the Supreme Court of the Russian Federation left sentence without change, and writs of appeal - without satisfaction, having motivated the decision with the following.

By court it is determined that the initial intention of convicts was directed to plunder of money at the victim by theft. But they could not commit theft of money and through insignificant period, continuing to pursue the occupancy aim money, attacked the victim and stole the money and things found in the apartment, that is finished the felonious intent.

As actions of specified persons for occupancy by money by robbery were not covered by P.'s intention and were excess of contractors, P.'s actions are correctly qualified by court as complicity in theft making by group of persons by previous concert, with illegal penetration into the dwelling, with causing significant damage to the citizen.

 

Determination N 78-O11-18

2. The actions of the convict connected with destruction or damage of the car of which he took control during assault represent order method stolen property (in criminal and legal sense) and do not require additional qualification according to the p. 2 of Art. 167 of the Criminal Code of the Russian Federation.

It is determined that on February 6, 1997 at E., To. and Sh., following in the car of the injured O., arose intention by assault to take control of money and property of the driver. Having stopped the car in the desert place, convicts committed murder O. Zavladev money and property of the victim, convicts fled the scene by the stolen car.

On the night of February 9, 1997 E. and To. burned the car belonging to O., having caused damage on the amount of 11 210 000 not denominated rubles.

According to the court verdict (taking into account the made changes) actions E. subitems "з", "to" the p. 2 of the Art. 105, are qualified by the p. 2 of Art. 167 of the Criminal Code of the Russian Federation on subitem "and", "in" the p. 3 of the Art. 162,.

Presidium of the Supreme Court of the Russian Federation, having considered criminal case according to the supervising claim of the convict E., cancelled the taken place judgments regarding his condemnation according to the p. 2 of Art. 167 of the Criminal Code of the Russian Federation and stopped proceeedings in this part.

The presidium motivated the decision with the following.

By court it is determined that E. in the course of assault took control of the victim's car, and also other property in this connection its actions are qualified on subitem "and", "in" the p. 3 of Art. 162 of the Criminal Code of the Russian Federation. The cost of the stolen car and the property which was in it is included in the extent of the damage caused as a result of robbery.

Then with the purpose to hide traces of crime, more than two days later from the moment of assault making, E. took part in extermination of the kidnapped person of the car and the property which was in it that received independent legal evaluation according to the p. 2 of Art. 167 of the Criminal Code of the Russian Federation.

On this case by the basis for qualification of actions of the convict E. on subitem "and", "in" the p. 3 of Art. 162 of the Criminal Code of the Russian Federation and the p. 2 of Art. 167 of the Criminal Code of the Russian Federation the facts of encroachments determined by court made at different times on the same subject of crime which only once was disposed from legal ownership of the owner of property were.

Besides, condition of approach of criminal liability on Art. 167 of the Criminal Code of the Russian Federation is causing significant damage owing to intentional destruction or damage of property.

Under such circumstances bases for condemnation E. according to the p. 2 of Art. 167 of the Criminal Code of the Russian Federation was not available.

 

Resolution of Presidium of the Supreme Court of the Russian Federation N 57P11

3. Deduction of the gun in the course of attack cannot be considered as the illegal carrying firearms and ammunition giving the grounds for qualification of actions of the guilty person according to the p. 2 of Art. 222 of the Criminal Code of the Russian Federation.

As it is established by the court verdict, B. and H. for the purpose of occupancy by money attacked on the injured V., And. and To. At the same time X., threatening with the gun, demanded to transfer it the money which was at the injured V., and B. put to the victim at this time To. blow by knife in back.

In response to encroachments the injured V. and And., defending, made shots in X. After X. fell, B. lifted its gun, but was disarmed and detained by the victims.

According to the court verdict of B. it is condemned on subitem, "in" the p. 4 of Art. 162 of the Criminal Code of the Russian Federation (in edition of the Federal Law of July 21, 2004 N 73-FZ).

On the same sentence of B. the subitem "and", "з" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation and the p. 2 of Art. 222 of the Criminal Code of the Russian Federation is justified behind the absence of evidence of a crime based on item 1 of the p. 2 of Art. 302 of the Code of Criminal Procedure of the Russian Federation on accusations according to the p. 3 of the Art. 30,.

In cassation representation the state prosecutor asked to cancel sentence regarding B.'s justification on a charge of illegal carrying firearms and ammunition. The author of representation believed that the time spent of the gun in B.'s hands does not matter for qualification of its actions according to the p. 2 of Art. 222 of the Criminal Code of the Russian Federation.

The judicial board on criminal cases of the Supreme Court of the Russian Federation left the court verdict without change, and cassation representation - without satisfaction.

Follows from case papers that after occupancy by the gun B. directly it was disarmed by the victims in this connection its actions for deduction of the gun in the course of attack cannot be considered as illegal carrying firearms and ammunition.

 

Determination N 78-O11-15

4. If the intention of the guilty person was directed to murder of one person, but was caused by shots not only the death of this person, but also harm to health is done by other victim to average weight, then actions of the guilty person are qualified on cumulative offenses, the provided items "e" of the p. 2 of Art. 105 of the Criminal Code of the Russian Federation and the item "and" of the p. 2 of Art. 112 of the Criminal Code of the Russian Federation.

It is determined that during joint drinking of alcohol between B. and And. there was quarrel which passed into fight. During B.'s fight from the gun which was available for it made shots in And., from which the victim died afterwards. At the time of shots near the victim I. there were also other citizens, in particular the victims And. and M. which B.'s actions did to average weight harm to health.

B.'s actions are qualified by court according to the item "e" of the p. 2 of the Art. 105, according to the item "and" of the p. 2 of Art. 112 of the Criminal Code of the Russian Federation and p.1 Art. 222 of the Criminal Code of the Russian Federation.

In the writ of appeal the lawyer of the convict asked to cancel sentence, to stop production according to the p. 2 of Art. 112 of the Criminal Code of the Russian Federation due to the lack in actions of the condemned actus reus.

The judicial board on criminal cases of the Supreme Court of the Russian Federation left sentence without change, and the writ of appeal - without satisfaction.

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