Approved by Presidium of the Supreme Court of the Russian Federation on December 7, 2011

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

Court practice on criminal cases

Questions of qualification

1. Person is unreasonably recognized as the helper in murder.

According to sentence, To., O. and person who is not identified by the investigation for the purpose of occupancy by someone else's property committed assault on B. drivers and And. At the same time To., threatening with the injured sawn-off shotgun, and O. - the subject which is not established by the investigation used as weapon forced And. start the car and follow in the direction specified by them. To. and O. sat down in cabin and directed weapon towards the victims. Victim A., being afraid for the life and having intention to disappear from attackers, sent the car to ditch and after the car crashed into column, escaped.

Remained in car K cabin. shot from sawn-off shotgun at B.'s victim, having caused it gunshot bullet wound from which there came death B. After that attackers fled the crime scene.

According to the court verdict of O. the item "z" of the p. 2 of Art. 105 of the Criminal Code of the Russian Federation is condemned on subitem, "in" the p. 3 of the Art. 162, by the p. 5 of the Art. 33,.

The presidium of the Supreme Court of the Russian Federation changed judgments on the following bases.

It agrees to O.'s charge brought by investigation authorities during assault to the victims, being on the highway, having intention on the murder from mercenary motives integrated to robbery and also with the purpose to hide traces of crimes, being effective as a part of organized group, in advance agreed with To. about B.'s murder, then To. made one shot in the victim and killed him.

Thus, only the fact that O. was on site crimes with other convict on the same case and was present at deprivation of life of B. that in itself it is impossible to recognize as participation in murder follows from the charge brought to O.

Proofs of recognition of murder by the court made by organized group are not established.

Qualifying O.'s actions as complicity in murder, the court specified that it rendered assistance to the contractor as with its participation the victim was exported to the place of murder, besides O.'s finding on site of crime execution provided clear physical advantage of attackers and suppressed will of the victims to resistance.

However the specified O.'s actions were not imputed amount of the accusation connected with murder.

Availability at convicts of sawn-off shotgun of the fowling piece and unspecified subject with whom they threatened the victims during assault cannot be the proof of availability at O. of intention on murder B.

Besides, as O. did not render complicity in causing death of B., in its actions there is no qualifying robbery sign "with causing severe harm to health of the victim".

The presidium cancelled sentence and cassation determination concerning O. regarding his condemnation according to the p. 5 of the Art. 33, of the item "z" of the p. 2 of Art. 105 of the Criminal Code of the Russian Federation, proceeedings in this part stopped behind absence in act of actus reus based on item 2 p.1 Art. 24 of the Code of Criminal Procedure of the Russian Federation. The same judgments concerning O. are changed: O.'s actions are requalified with subitem, "in" the p. 3 of Art. 162 of the Criminal Code of the Russian Federation (in edition of the Federal Law of June 13, 1996 N 63-FZ) on the p. 2 of Art. 162 of the Criminal Code of the Russian Federation (in edition of the Federal Law of March 7, 2011 N 26-FZ).

Resolution of Presidium of the Supreme Court of the Russian Federation No. 144P11

2. Reduction of the victim in unconsciousness cannot be considered by actions of the deprivation of life, most guilty of process, as making of murder with use of helpless condition of the victim.

On case it is determined that between the condemned G. and its materyyupoterpevshy R. there was quarrel during which he began to strike to the victim multiple blows with hands and legs to different parts of body and after R. fainted, the convict struck it at least three blows with the axe in the head why there came the death of the victim.

Qualifying G.'s actions according to the item "in" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation as murder of person, obviously for the guilty person who is down and out the court in sentence specified that the victim fainted from blows of the convict in this connection she obviously for it was down and out.

Meanwhile according to the item "in" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation murder of the victim is qualified, to protect not capable itself, to show active resistance to the guilty person owing to physical or mental condition. The seriously ill patients and aged, juvenile children, persons suffering from the mental disturbances depriving of their capability can be carried to such persons, in particular, it is correct to perceive the events.

On case in G.'s relation of the data testimonial of finding of the injured R. during murder down and out, it is not established.

Due to stated the Judicial board on criminal cases of the Supreme Court of the Russian Federation requalified actions of the condemned G. with the item "in" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation on p.1 Art. 105 of the Criminal Code of the Russian Federation as murder because of personal aversions.

Determination No. 58-D11-15

3. In case of qualification of actions of the guilty person the court according to provisions p.1 of Art. 10 of the Criminal Code of the Russian Federation shall apply the new penal statute in the part improving provision of person who committed crime and has no right to apply the new law in the part worsening its situation.

According to the court verdict of February 10, 2011 Z. it is sentenced according to p.1 Art. 30, p.1 Art. 205 of the Criminal Code of the Russian Federation to 8 years of imprisonment in corrective colony of strict regime with restriction of freedom for 1 year, with the restrictions specified in sentence.

Judicial board on criminal cases of the Supreme Court of the Russian Federation, having considered criminal case on cassation representation of the state prosecutor, changed sentence on the following bases.

During making Z. crimes (on September 7 - 8, 2010) Art. 205 of the Criminal Code of the Russian Federation was effective in edition of the Federal Law of December 27, 2009 N 377-FZ which sanction of part one prescribed custodial sanction for a period of 8 up to 12 years with restriction of freedom for a period of up to 2 years.

The Federal Law of December 9, 2010 N 352-FZ to p.1 Art. 205 of the Criminal Code of the Russian Federation made changes according to which the sanction of this law provides imprisonment from 8 to 15 years, and restriction of freedom is excluded.

Because the law existing during making Z. crimes, prescribed less stiff primary punishment, the court shall qualify actions of the convict and impose to it penalty under this law. Taking into account the sanction of this law, and also provisions of the p. 2 of Art. 66 of the Criminal Code of the Russian Federation the court had no right to appoint Z. more than 6 years of imprisonment.

At the same time, as p.1 Art. 205 of the Criminal Code of the Russian Federation of December 9, 2010 does not contain additional punishment in the form of restriction of freedom in edition of the Federal Law and this law improves provision of the convict, the court according to Art. 10 of the Criminal Code of the Russian Federation had no right to appoint Z. additional punishment.

Based on stated the Judicial board changed sentence concerning Z., requalified its actions with p.1 Art. 30, p.1 of Art. 205 (in edition of the Federal Law of December 9, 2010 N 352-FZ) on p.1 Art. 30, p.1 of Art. 205 of the Criminal Code of the Russian Federation (in edition of the Federal Law of December 27, 2009 N 377-FZ) and imposed to him custodial sanction for a period of 6 years.

Determination N 20-O11-6

Assignment of punishment

4. The court reasonably recognized recurrence of crimes as earlier he is judged for crime of average weight in actions of the convict and before repayment of criminal record committed especially serious crime.

According to the court verdict of December 10, 2010. And. (judged on April 23, 2009 according to the item of the p. 2 of Art. 158 of the Criminal Code of the Russian Federation by 160 o'clock of obligatory works, it is struck off the register on July 11, 2009 after punishment departure) sentenced according to the item "and" of the p. 2 of Art. 105 of the Criminal Code of the Russian Federation to 15 years of imprisonment in corrective colony of strict regime with restriction of freedom for a period of 1 year.

The court correctly recognized availability in actions And. recurrence of crimes since murder was committed by it (on April 4, 2010) within year after execution of the penalty which is earlier imposed to it in the form of obligatory works for making of intentional crime of average weight. The judgment on the matter corresponds to provisions p.1 of Art. 18 of the Criminal Code of the Russian Federation and the item of the p. 3 of Art. 86 of the Criminal Code of the Russian Federation.

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

Determination N 49-O11-13

5. Assignment of punishment in the form of corrective works is excluded from sentence as the court in violation of the law (Art. 50 of the Criminal Code of the Russian Federation and item 4 p.1 of Art. 308 of the Code of Criminal Procedure of the Russian Federation) did not specify the amount of deduction in the income of the state.

According to the court verdict of T. it is sentenced according to p.1 Art. 139 of the Criminal Code of the Russian Federation to 6 months of corrective works and other articles of the Criminal Code of the Russian Federation.

According to чч. 1 and 3 Art. 50 of the Criminal Code of the Russian Federation corrective works are appointed condemned, not having principle place of employment, and are left in the places determined by local government bodies in coordination with the body performing punishment in the form of corrective works, but near the residence of the convict.

From the salary of the convict to corrective works deduction in the income of the state in the amount of, established by the court verdict, ranging from five to twenty percent are made.

The Trial Court did not specify in sentence the amount of deduction from its salary in the income of the state, that is punishment for the crime prescribed p.1 by Art. 139 of the Criminal Code of the Russian Federation, according to requirements of the law did not appoint.

The Supervisory Court excluded from sentence specifying about appointment to the Criminal Code of the Russian Federation condemned punishments according to p.1 Art. 139.

Resolution of Presidium of the Supreme Court of the Russian Federation N 116P11

6. Restriction of freedom is appointed by the minor convict only as main type of punishment.

According to the court verdict of October 25, 2010 S. is sentenced using provisions p.1 by Art. 62 of the Criminal Code of the Russian Federation on subitem "in", "з" the p. 2 of Art. 105 of the Criminal Code of the Russian Federation to 6 years 6 months of imprisonment with restriction of freedom for 1 year 6 months, according to the item "in" the p. 4 of Art. 162 of the Criminal Code of the Russian Federation for 6 years of imprisonment, according to Art. 324 of the Criminal Code of the Russian Federation for 6 months of corrective works with deduction of 5% of the salary in the income of the state. Based on the p. 3 of Art. 69 of the Criminal Code of the Russian Federation on cumulative offenses of S. 10 years of imprisonment with restriction of freedom are appointed to 1 year 6 months.

The judicial board on criminal cases of the Supreme Court of the Russian Federation left on February 10, 2011 sentence concerning S. without change.

The deputy attorney general of the Russian Federation in supervising representation raised question of exception of instruction sentence of S.'s appointment for the p. 2 of Art. 105 of the Criminal Code of the Russian Federation of punishment in the form of restriction of freedom as according to the p. 5 of Art. 88 of the Criminal Code of the Russian Federation this type of punishment as additional to the minor is not designated.

The presidium of the Supreme Court of the Russian Federation satisfied supervising representation and changed judgments, having specified the following.

According to the p. 2 of Art. 53 of the Criminal Code of the Russian Federation restriction of freedom is appointed for a period of two months up to four years as main type of punishment for crimes of small and average weight, and also for a period of six months up to two years as auxiliary view of punishment to imprisonment in the cases provided by the relevant articles of the Special part of the Criminal code.

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