Questions: The concept and types of stages of committing a crime.
Preparation for a crime, its signs.
The concept and types of attempted crime.
Finished crime. Peculiarities of the termination of individual elements of crimes.
Voluntary refusal to complete the crime.
The difference between voluntary repentance and active repentance.
1. The concept and types of stages of the commission of a crime.
In reality, a person who has the intention to commit a crime, in some cases, immediately realizes the criminal intent, in others – preliminarily prepares to commit it, or starts to commit it, but does not complete the criminal intent due to various circumstances. Nevertheless, the public danger of the acts, in the last two cases, is obvious. In this regard, the criminal law establishes responsibility not only for the commission of a completed crime, but also for socially dangerous acts that represent unfinished criminal activity.
The stages of the commission of a crime are the stages of the implementation of an intentional crime, which differ significantly from each other in the degree of realization of the intent. Such stages are reflected in crimes with direct intent, since they are the product of a purposeful and volitional activity of a person.
In the theory of criminal law and in criminal law, there are three stages of a crime that have criminal legal significance: preparation for a crime; attempted crime; completed crime. The so-called detection of intent (“bare intent”) – i.e. the intention to commit a crime that has not been expressed outwardly in specific actions is not a crime, does not entail criminal liability, since a crime, according to Article 11 of the Criminal Code, is only an action or inaction.
Preparation for a crime and an attempt is called an unfinished crime , in theory and practice they are also called preliminary criminal activity . The presence of these stages of committing a crime does not mean that all crimes that are committed with direct intent necessarily go through all the stages, or that the presence of stages in general is mandatory for every intentional crime. An attack is qualified as a preparation for a crime or an attempt on it only when the criminal activity is interrupted at the appropriate stage. Every action reaches a certain stage. An act cannot have two stages of its commission, and therefore it must always be qualified according to the most maximal stage in terms of its degree of completion.
Preparation for a crime and an attempt to commit a crime are characterized by the fact that when they are committed, all the signs of the corpus delicti provided for by the norm of the Special Part of the Criminal Code are absent. Preparation is characterized by the complete absence of actions that are described in the disposition of the article of the Special Part, and even more so socially dangerous consequences; for an attempt – the absence of socially dangerous consequences and (and) incomplete or partial performance of the act, which is a sign of the objective side of the corresponding crime. That is, an unfinished crime takes place in the absence of all the obligatory signs of the objective side of the corpus delicti described in the article of the Special Part.
Thus, preparation and attempt constitute a corpus delicti, the signs of which are provided for both by the norm of the Special Part on the corresponding completed crime, and by the norm of the General Part, which provides for an unfinished crime. The composition of an unfinished crime contains signs of a corresponding completed infringement (except for the corresponding signs of the objective side), and the signs of the objective side, which are missing, are “replaced” by signs of preparation for a crime or attempted crime. In such cases, it is necessary to refer to part 1 of article 14 or part 2 or 3 of article 15 of the Criminal Code.
2. Preparation for a crime, its signs.
Art. 14 of the Criminal Code defines preparation for a crime as the search for or adaptation of means or tools, the search for accomplices or conspiracy to commit a crime, the removal of obstacles, as well as other deliberate creation of conditions for the commission of a crime.
An analysis of this norm, theoretical provisions, and practice makes it possible to single out such signs of preparation for a crime : actions are performed that are not described in the disposition of the article of the Special Part of the Criminal Code, i.e. are not included in the objective side of this crime; the perpetrator performs one of the actions that are named in part 1 of article 14 of the Criminal Code as types of preparation for a crime; preparatory actions are completed; criminal activity did not continue for reasons beyond the control of the perpetrator. The transition to the fulfillment of the objective side of the crime means that there is a later stage of its commission – an attempt.
Preparation for a crime is always expressed in concrete actions. As a rule, this is active behavior, but the possibility of cooking by inaction is not excluded (the employee, leaving work, does not close the window in order to enter the premises at night and commit theft).
The instrument of committing a crime is what the crime is directly committed with (a weapon, a knife, an ax, a baton, etc. for murder and bodily harm, special devices for theft – hooks, lassoes, etc.). A means of committing a crime is that which facilitates the commission of a crime, that is, creates conditions for its subsequent commission, including using the instrument of crime. For example, with the help of a ladder, a thief gets through the fence into the yard (a means of committing a crime), and then with a specially made hook through the window vent steals bottles of alcoholic beverages; fake documents – to commit unauthorized appropriation of power or the title of an official (Article 353 of the Criminal Code); narcotic drugs – to bring the injured person into a helpless state for the purpose of rape (Article 152 of the Criminal Code); a diskette with a computer virus – for illegal interference in the operation of electronic computers (computers), systems and computer networks (Article 361 of the Criminal Code); trap – for illegal hunting (Article 248 of the Criminal Code).
Types of acts that constitute preparation for the commission of a crime:
Investigation – involves any means of acquiring tools and means of committing a crime, both legal and illegal (purchase, receiving as a debt, means of payment, finding, obtaining for temporary use, kidnapping (in the latter case, there is a set of crimes).
Manufacturing involves the manufacture (creation) of an object from beginning to end (key, weapon, master key, etc.).
An adaptation is a modification of an already existing object (a sawn-off shotgun barrel, sharpening a metal rod, key processing, etc.).
The search for accomplices in a crime consists in the selection of persons who will help to commit a crime or directly participate in it, including finding out their “business” qualities, awareness, skills, etc. For example, an accomplice – to conceal a crime, an organizer – to obtain appropriate instructions regarding the commission of a crime.
Conspiracy to commit a crime is a discussion of the circumstances of a future crime and the achievement of an agreement on cooperation when it is committed, including the definition of the object of the crime (attack), the division of money (property) obtained by criminal means, hiding the traces of the crime, distribution of roles, etc. The conspiracy should be considered completed from the moment the discussion of the terms of the commission of the crime began, regardless of the agreement reached, since such contacts create the conditions for the subsequent commission of the crime.
Elimination of obstacles is the removal of possible or actual obstacles to the commission of a crime ( for example, poisoning a dog before theft, creating excess property in a warehouse for the purpose of subsequent theft, not turning on the alarm or disabling it in order to freely enter the premises for the illegal use of special technical means of covert obtaining information ).
Other deliberate creation of conditions for the commission of a crime includes various actions that facilitate the commission of a crime, create conditions for hiding the traces of a crime, provide an alibi, etc. These include the development of a plan for the commission of a crime, the search for a victim of a crime, the advance preparation of a repository for property obtained by criminal means, the organization of an ambush, etc.
Actions of preparation for a crime may form part of another completed crime. For example, the forgery of financial documents for the illegal taking of another’s property through abuse of official position constitutes a crime under Art. 358 of the Criminal Code. In such cases, the committed must be qualified according to the totality of crimes: as preparation for a crime and as another completed crime – Art. 358 and part 1 of Art. 14 and the corresponding part of Art. 191 of the Criminal Code.
Preparation must be distinguished from the detection of intent to commit a crime. Everything that is not expressed in the act is outside the scope of criminal law regulation, and does not matter for criminal law. Therefore, the intention to commit a crime that has not been physically embodied in a socially dangerous act cannot be assessed as a crime. Detection of intent is the stage when the intent has already been formed, moreover, it has become known to other persons (for example, a husband tells his wife about the intention to commit a theft). However, although there is intent, its objectification (embodiment outside) does not occur, since no real actions have yet been taken to implement it. The discovery of intent can move into the stage of preparation if this is followed by actions to implement it (the husband not only tells his wife about the intention to commit a crime, but also begins to prepare for it, studies the scene of the alleged crime or persuades his wife to take part in its commission). In this case, the conditions for the commission of a crime are already beginning to be created.
Preparation for a crime of minor gravity does not entail criminal liability ( Part 2, Article 14 of the Criminal Code).
In the case of finding or adapting means or instruments for committing a crime, which, by their properties, are capable of causing harm, but in this case their quantity, qualitative characteristics do not allow this, even with the continuation of criminal activity (for example, the acquisition of a poisonous substance in an amount that the victim consumes does not lead to his death, the manufacture of an explosive device with insufficient power to cause the harm that is planned, etc.). Criminal liability for preparation with insufficient funds occurs regardless of whether the perpetrator himself chose such means – unaware of their harmless nature, or the lack of funds turned out to be independent of his will. Cooking with missing means consists in appropriate actions regarding objects that at a given time, in a given situation, do not have harmful, damaging properties. For example, acquiring a damaged gun is the responsibility of the preparation. If a person knew that in the current state the tools or means are not capable of causing harm, and, nevertheless, performed certain actions, planning to bring them into proper condition in the future, at this stage they cannot be considered preparation for a crime.
3. The concept and types of attempted crime.
The concept of attempted crime is contained in Part 1 of Article 15 of the Criminal Code. Attempt to commit a crime is the commission by a person with direct intent of an act (action or inaction) directly aimed at committing a crime provided for by the relevant article of the Special Part of the Code, if the crime was not brought to an end for reasons that did not depend on his will.
Signs of an attempt: actions are performed that are directly aimed at committing a crime. This means that in the course of an attempt, an action is performed that is described in the disposition of the article of the Special Part, which is included in the objective side of the crime; the objective side of the crime is not completed – the consequences do not occur, or even the actions are not carried out to the end; the crime was not completed for reasons that did not depend on the will of the perpetrator. Thus, an attempt to commit a crime is an unsuccessful attempt to commit a crime, when the subject made every effort to carry out all the planned actions, but the consequences desired for the guilty person did not occur regardless of his will, or the guilty person could not perform all the actions that he intended to commit ( the reasons for the non-occurrence of consequences may be different: the resistance of the victim, the intervention of unauthorized persons, technical malfunctions of the instrument of crime, etc.).
The signs of the objective side of the crime planned by the perpetrator determine the content and nature of such an attempt. They can be: action (inaccurate shot) or inaction (failure by a medical worker to provide assistance to a patient); an action that did not bring the desired consequences (a shot that did not kill, but only wounded the victim); an action that did not cause any consequences (breaking into a garage where there was no car with the aim of stealing a vehicle). From the standpoint of the subjective side, an attempted crime is possible only with direct intent, since a person must be aware of the socially dangerous nature of his act, foresee socially dangerous consequences and consciously desire the occurrence of such consequences.
To delicts, in respect of which an attempt is impossible, first of all, is causing harm when the limits of necessary defense are exceeded (Articles 118 and 124 of the Criminal Code), in a state of strong emotional excitement – Articles 116 and 123 of the Criminal Code. It is also impossible to attempt those crimes with a formal composition, the objective side of which includes only one mandatory action or inaction.
The criminal law distinguishes the types of attempted crimes according to the degree of realization of criminal intent – completed and unfinished.
According to part 2 of Art. 15 of the Criminal Code, an attempt to commit a crime is considered completed if the person performed all the actions that he considered necessary to complete the crime, but the crime was not completed for reasons that did not depend on his will. In the criminal law literature, this attempt is also called unsuccessful. For example, an attacker tried to shoot the victim for the purpose of murder, but a misfire occurred.
An attempt to commit a crime is incomplete if the person, for reasons that did not depend on his will, did not perform all the actions that he considered necessary to complete the crime (part 3 of article 15 of the Criminal Code). For example, the criminal entered the premises, but did not have time to steal anything, as he was detained, or the weapon was knocked out of the hands of the criminal before he had time to shoot, etc. With an unfinished attempt, criminal consequences are not only absent, but also theoretically impossible , because all the actions necessary to end this crime have not been completed.
Depending on the suitability of the object of infringement and the means of infringement, an attempt to commit a crime can be carried out on an unusable object or unsuitable means. An attempt on an unsuitable object occurs when the object of the crime is devoid of characteristic properties, due to which the commission of the crime becomes impossible. For example, the erroneous theft from a pharmacy of a substance mistaken for a narcotic, or a shot in a corpse, mistaken for a living person. Attempt with unsuitable means occurs when a person mistakenly uses such means with which it is impossible to commit a crime. As an example, one can cite an attempt to poison with a substance mistakenly taken for poison, an attempt to fire a shot from a faulty weapon. “Deviation of the action “ takes place when, as a result of a crime, harm is caused not to the object (victim) in relation to which the perpetrator’s attack was directed, but to another good that is protected by law, due to unpredictable changes in the development of the causal relationship.
4. A completed crime. Peculiarities of the termination of individual elements of crimes.
A completed crime is a typical type of crime, the signs of which are established in the norms of the Special Part of the Criminal Code, in relation to which the main institutions of the General Part (guilt, complicity, etc.) are constructed. As a general rule, a crime is recognized as completed if the act actually committed contains all the signs of an infringement provided for by the criminal law norm. From such a definition it follows that when determining the moment of the end of a crime, it is necessary to take into account: the description of the crime in the Special Part of the Criminal Code; the actual fulfillment of the objective side of the crime – a crime can be recognized as completed only when the act of the person has all the mandatory signs of the objective side.
The material corpus delicti takes place when the disposition of the articles names both the socially dangerous act and the consequences of the crime as obligatory signs of the objective side. Moreover, one consequence, several alternative consequences, several mandatory consequences can be called.
A crime with a material composition is considered completed from the moment the socially dangerous consequences of the encroachment, provided for by the disposition, occur. Those. socially dangerous consequences are a mandatory feature of the objective side. If an article of the Special Part specifies several mandatory consequences of a crime, then such a crime is considered completed from the moment all the mandatory consequences occur. At the same time, one of the consequences indicated in the disposition of the article is intermediate on the way to another – the final one. For example, a crime, part 2 of article 121 of the Criminal Code is considered completed when there are consequences in the form of severe bodily injury and death of the victim; the crime under Part 2 of Article 194 of the Criminal Code is considered completed, provided that both the destruction or damage to other people’s property and the infliction of property damage on an especially large scale or the death of people took place. BUT, causing death by negligence, without the presence of intentional grievous bodily injury, is not qualified as a completed crime under Part 2 of Article 121 of the Criminal Code, but under Article 119 of the Criminal Code. When several consequences are named alternatively in the article of the Special Part, the occurrence of at least one of such consequences is sufficient to recognize the crime as completed. For example, a crime under part 2 of article 345 of the Criminal Code – from the moment the victim was inflicted with a slight or moderate bodily injury.
The formal corpus delicti takes place when the disposition of the article indicates only a socially dangerous act as a mandatory feature of the objective side. In the formal elements of crimes, there may be one act, several obligatory or several alternative acts. A crime with a formal composition is considered completed when the act is completely committed, which is named in the disposition of the article of the Special Part as a sign of the composition of such an offense, or several mandatory acts: unauthorized appropriation of power or the title of an official (Article 353 of the Criminal Code) is a completed crime then, when 1) unauthorized appropriation of power or the title of an official has been committed and 2) any socially dangerous act has been committed. Several alternative actions: the encroachment provided for by Article 199 of the Criminal Code is considered completed from the moment one of the seven actions that are included in the objective side of this crime (counterfeiting) is committed.
Truncated crimes. It takes place when in the disposition of the article of the Special Part, as a sign of the objective side, an unfinished act is indicated. It is noted in the literature that the legislator, depending on the description of the act in the criminal law norm, transfers the moment of its completion to an earlier stage – preparation for a crime or an attempt on it. For example: robbery (Art. 187 – from the moment of the attack), banditry (Art. 257 of the Criminal Code – from the moment the armed gang was created), and so on.
5. Voluntary refusal to complete the crime.
Voluntary refusal is the final cessation by a person of his own free will of the preparation for a crime or attempted crime, if at the same time he was aware of the possibility of bringing the crime to an end (part 1 of article 17 of the Criminal Code). From the content of Art. 17 of the Criminal Code, it follows that a voluntary refusal to complete a crime, excluding criminal liability, is possible only at the stage of preparation for a crime or an attempt on it and must meet a number of criteria.
Exemption from criminal liability in connection with a voluntary refusal to commit a crime is possible subject to the conditions for the legitimacy of such a refusal :
1) Voluntary refusal means refusal to bring the crime to the end at the person’s own will , regardless of his motives. Unlike preparation for a crime or an attempt on it, an encroachment with a voluntary refusal does not stop involuntarily, but at the will of the one who encroaches, consciously. At the same time, the initiative to stop criminal activity can come both from the person who commits the offense, and from his relatives, the victim, outsiders. The motives for refusal can be fear of responsibility, pity for the victim, a sense of shame.
2) The finality of a voluntary refusal is that the person refuses to complete this crime forever, he has no intention to continue the offense in the future, to repeat the attempt to complete it. A break in the commission of a crime, postponing its completion “until better times” does not constitute a voluntary refusal, and the committed should be qualified taking into account what stage of commission the crime has reached by the time of such interruption.
3) Awareness of the possibility to complete the crime takes place when a person knows that there are no insurmountable obstacles for him to continue criminal activity, he believes that he can complete the offense that he started. In order to have a voluntary refusal, it is necessary that the corresponding idea exist in the mind of the person, i.e., that he himself believes that he can end the crime. Refusal to encroach on an unusable object, with unusable tools, etc. – when the possibility of ending the crime was objectively absent, for example, the thief refused to steal from the cash register, not knowing that there was no money in it, but the person did not know about it, believed that he had the opportunity to complete the offense, does not exclude voluntary refusal from committing a crime.
4) The absence of another crime in the actually committed act means that a voluntary refusal is carried out only with respect to a specific infringement, and does not apply to all criminal activities of the perpetrator. A person is released from criminal liability for an unfinished crime and, at the same time, is subject to criminal liability for crimes committed before the moment of voluntary refusal, which are completed, as well as for an assault, the consequences of which the perpetrator failed to prevent.
5) The success of voluntary withdrawal . Voluntary refusal, as a basis for exemption from criminal liability, can be recognized only when there is no corpus delicti not only of another crime (i.e., not the one regarding which the perpetrator refused), but also the corpus delicti of the crime in respect of which the voluntary refusal is carried out.
6. The difference between voluntary renunciation and active repentance.
The actions of the subject of the crime, which are aimed at reducing the harm caused and eliminating or compensating for the consequences caused, which demonstrate the remorse of the guilty person and his understanding of his own guilt, is called active repentance . It can be implemented in the form of compensation for the damage caused, sincere repentance, assistance in investigating a crime, assistance to the investigation, etc. For example, the voluntary return of the stolen in the case of theft. In the case of infliction of bodily harm, active repentance may be in the active actions of the guilty person aimed at providing assistance to the victim, namely: emergency medical care, calling a doctor, transporting to a hospital, etc. Active repentance is characterized by sincere and voluntary repentance of the guilty person. The motive for repentance can be different: awareness of the immorality of the committed, shame, pity, desire to improve, etc. Active repentance is a circumstance that can mitigate the responsibility of the guilty.
In some cases, the voluntary refusal of the perpetrator is the basis for the release of a person from criminal liability, in specially provided cases in the Special Part. For example, in part 3 of Art. 263 (illegal handling of weapons, ammunition or explosives) provides that the person who committed this crime is released from criminal liability, provided that he voluntarily surrenders weapons, ammunition, explosives or explosive devices to the authorities. Similar norms are provided for in other articles of the Criminal Code: Part 2 of Art. 111 of the Criminal Code (high treason); Part 4 Art. 307 (illegal manufacture, manufacture, acquisition, storage, transportation, shipment or sale of narcotic drugs, psychotropic substances or their analogues), etc..
Differences: Voluntary refusal can occur in both active and passive forms, and active repentance always involves the commission of active actions aimed at reducing harm. Active repentance is possible in a completed crime, in contrast to voluntary renunciation, which is impossible with a completed crime, but only in the earlier stages of the commission of a crime.