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Committing a grave or especially grave crime as the purpose of a criminal organization
Doctor of Law, Senior Fellow,
Senior Research Fellow Science Laboratory of the problems
detection and investigation of crimes
National Academy of Internal Affairs
Statement of the problem . Qualification of crimes committed by criminal associations, requires first of all establish their features that enable law enforcement agencies to distinguish between forms of participation and correctly classify crimes committed by them .
One of the essential features of criminal law criminal organization around which long waged a scientific discussion, is the purpose of its creation. In accordance with Part 4. 28 Criminal Code of Ukraine offense is committed a criminal organization if it is committed by a stable hierarchical association of several persons (five or more), whose members or structural parts which by prior agreement for joint activities organized themselves for the purpose of directly committing grave or especially grave crimes parties the organization or management or coordination of criminal activity of others, or the functioning of both the criminal organizations and other criminal groups. However, under Part 1 of Art . 255 of the Criminal Code of Ukraine, in order to create a criminal organization is committing a grave or especially grave crime. Meanwhile, organizing, directing or facilitating meetings ( gathering ) members of criminal organizations or organized groups carried out to develop plans and conditions common crimes, financial security or criminal activity coordination associations criminal organizations or organized groups ( Part 1 of Art . 255 CC Ukraine ).
Different legal definition of the goal of creating a criminal organization constitutes a conflict of articles of the Criminal Code , that is contradictory situation that appears in the form opposite positions in the explanation of the signs of an organized criminal association in Art. 28 and Art. 255 of the Criminal Code of Ukraine.
Analysis of recent research and publications. Criminal law nature of organized criminal groups have investigated such scholars as DP Aleshin , VV Vasilevich , NA Hutorova , Leo Demidov , GP Zharovska , I. Ivanenko , AF Kovitidi , M. J. Korzhanskyy , EK Marchuk, M. Miller, A. Melnikov, V. Navrotsky , G. Nowicki , MI Panov , in . A. Roebuck , MV Semykina , IK Turkevich , Vladimir Ukrainian , EV Fesenko , MI Havronyuk , RL Brown et al. However, the problem of understanding the purpose of your criminal organizations have found the unique solution of the Criminal Code of Ukraine .
The aim of the paper is to study the feasibility of applying category of grave and especially grave crimes such penal sign of a criminal organization as the purpose of its creation.
The main results of the study. Study of investigation and litigation indicates that the purpose of a criminal organization set mostly only after the commission of certain criminal organization offenses. On stage is the creation of the association aim to document its creation almost impossible.
However, despite the creation of a criminal organization is primarily concerned with the category of grave and especially grave crimes. Indeed committing this category socially dangerous acts specific to this form of complicity. This is due primarily to the fact that getting high profits or achieve other objectives to members of criminal organizations can mostly during the commission of most serious and heinous crimes.
In addition, it promotes the construction of norms Special Part and the rules for qualification of crimes committed in complicity. Thus, separate crimes committed by a criminal organization , if in its design such aggravating or special aggravating circumstances as " the commission of a crime by a group of persons " or " commission of a crime by an organized group " will qualify for the relevant parts of the articles that provide these features . So easy the crime may be related to the category of crimes of a small -to-moderate and qualified and specially trained - usually a grave or especially grave crime .
The legal position regarding recognition of union criminal organization subject to its creation for committing a grave or especially grave crime certainly most closely reflects the nature of these associations. But it is not unconditional . Therefore has both its supporters and opponents.
Most scientists suggests not specify a category of crimes , depending on the severity of the criminal organization of goal .
Thus, IK Turkevych justifies the need to eliminate the reference to the purpose as the essential characteristics of a criminal organization. In his opinion, is the criticism and determine such purpose in the creation of a criminal organization , as the commission of grave or especially grave crimes. This greatly limits the recognition of a group a criminal organization . Especially it negatively affects the fight against organized crime in the economy since a large number of economic crimes not related to the grave or especially grave [1 , p. 230-231 ].
MV Semykina proposed to remove this problem from § 4 . 28 and Part 1 of Art . 255 Criminal Code of Ukraine as a terrorist organization is a kind of criminal organization , and the presence in Part 4. 28 and Part 1 of Art . 255 CC features such as orientation to commit grave or especially grave crimes can not recognize the real terrorist organizations such if their activities are focused on committing minor crimes of terrorist orientation [2 ]. For example a crime under Art. 258-2 of the Criminal Code of Ukraine ( public calls to commit a terrorist act , and distribution, production or storage of any material on this appeal ) is classified as moderate. The creation of an organized criminal association, which will specialize in public calls to commit a terrorist act , and distribution , manufacture or possession of any material of such calls in the presence of other signs of a criminal organization will not be able to recognize the terrorist organization.
GP Zharovska notes that since the commission of grave or especially grave crimes are a form of criminal activity and thus reduces the objective of establishing a criminal organization , as for the broader interpretation of the concept to create a criminal organization to be considered a crime studies [3 , p. 9].
According MI Korzhanskoho , the purpose of a criminal organization is committing an unspecified number of crimes [ 4, p. 32].
AF Kovitidi believes that criminal networks are created to engage in criminal activity , that is, to commit some ( often unspecified number) crime or if a crime , it is very large and complex in execution, in preparation for which concluded resistant forms of criminal ties produced methods and techniques of criminal activity [5 ].
Ambiguous , according to I. Ivanenko, on his understanding of the criminal law is binding criminalization of such acts as the creation of a criminal organization to commit to the goal it was a grave or especially grave crime because, in terms of creating a potential threat to state security, public safety critical role has its own creation and existence of a certain period of extremely serious source of danger as a criminal organization , regardless of the severity of pre- planned its members to commit crimes.
Inthis respect of fundamental theoretical importance is whether existing at the time of formation of a certain criminal organization clear plans to commit a specific crime or series of crimes , or it might be a criminal organization could be established as a potential collective crime unit without a clear definition at the time the specific direction of the criminal activity or specific crimes.
That is, if you can recognize some criminal association, which has all the structural and qualitative features of a criminal organization , an organization at the time of achieving an appropriate structural and qualitative state has not been clearly defined trends of criminal purpose of its creation ?
According to the author , it is possible that members of the criminal organization, which, for example , separated from the other more complex criminal association inherited hierarchical subordination, internal and external stability are at a point only a rough idea of the content of further joint criminal activity. However, this collective crime unit already exists and is ready to commit crimes.
Moreover , according to I. Ivanenko , is to critically treat the binding of the fact of creation and existence of a criminal organization to its mandatory direction to commit it serious or especially serious crime. This criterion is highly questionable as to aid in distinguishing between organized criminal groups and organizations , such as how he was, and was introduced in the current Criminal Code of Ukraine [6 , p. 433-438 ]. Really is not always possible to distinguish between categories of crime organized groups and criminal organizations [ 7, p. 35-43 ].
However, in the Model Penal Code recognizes the criminal community united union organized criminal groups for the purpose of obtaining illegal income ( Part 4 of Art . 38 ) [8 ].
The above position is certainly noteworthy, but it eliminates the possibility of establishing a criminal organization to commit such violent crimes for the purpose of revenge ( murder or grievous bodily harm for the purpose of committing a vengeance ). In addition, it provides for the mandatory installation of illegal profits. However, illegal profits can be obtained through violation of the Criminal Code of Ukraine , not only , but also other legislation.
In the criminal law of foreign countries as different approaches to defining the purpose of a criminal organization : committing a grave or especially grave crime (Russian Federation , the Republic of Armenia , Azerbaijan and the Kyrgyz Republic) , development or implementation of measures of criminal activities or conditions for its support and development ( Belarus), in crimes of first degree or unlawful influence on government (Estonia).
Due to the fact that criminal liability under Art. 255 CC of Ukraine reached in case a criminal organization to commit grave and especially grave crimes, there are two challenges: 1) how to classify the establishment of an organized criminal association , characterized by all accounts a criminal organization except the purpose for the commission of crimes by the participants of average severity , and 2) to qualify as a criminal organization offense moderate.
In this situation, the following hypotheses are possible to solve the problem :
1) to exclude from criminal purpose of the reference to the category of crimes in general ;
2) expand the goal of this association by Misdemeanor ;
3) develop rules for qualification of crimes of a small to moderate , committed members of a criminal organization.
The first hypothesis implies the exclusion of other distinguishing criteria of an organized group of criminal organization , the leveling limits of these associations. Despite the fact that the only category of grave and especially grave crimes is not always possible to distinguish between these forms of participation , but these signs reveals the legal nature of a criminal organization.
In favor of the second hypothesis can be cited the fact that the Criminal Code of Ukraine is a Misdemeanor for the commission of which may be established by criminal organizations . These crimes include: public calls for the violent overthrow or change the constitutional order or the seizure of state power , and the distribution of materials calling for such actions ( Part 3. 109 CC of Ukraine ), conducting illegal experiments on humans ( including 2 tbsp. 142 of the Criminal Code of Ukraine); forced donation ( part 3. 144 of the Criminal Code of Ukraine) , obstruction of voting rights or the right to participate in the referendum , the work of the election commission or referendum commission or activities of an official observer ( part 3. 157 CC of Ukraine ), obstruction of violence, fraud, bribery , or otherwise free exercise rights of a citizen or not to participate in the referendum to campaign before the date of the referendum ( part 3. 160 of the Criminal Code of Ukraine) attacks on human health under the pretext of preaching religious beliefs or perform religious rites (Article 181 of the Criminal Code of Ukraine) , illegal manufacture , possession, sale or transport for sale of excisable goods (parts 1, 2, Art. 204 CC of Ukraine ); fictitious business (Article 205 of the Criminal Code Ukraine ), misappropriation of surface soil ( surface layer ) of land (Article 239-1 of the Criminal Code of Ukraine) , misappropriation of land water resources in a large scale (Article 239-2 of the Criminal Code of Ukraine) , illegal cutting of forests (Article 246 Criminal Code of Ukraine ), illegal hunting ( Part 2 of Art . 248 CC of Ukraine ), illegal handling of weapons , ammunition or explosives (Article 263 of the Criminal Code of Ukraine) , importation, manufacture or distribution of products that promote violence and cruelty , racial, national or religious intolerance and discrimination ( Part 3. 300 CC of Ukraine ) and others.
Mostly these crimes, allowing immediately or in the near future to obtain profit. This is directly or indirectly aimed activities of most organized crime groups. Given this profit is an optional feature of organized groups and criminal organizations.
In the context of the development of the third hypothesis can offer the following training rules Crimes small to moderate committed by members of criminal organization:
1. Create an organized criminal association, which aims to commit crimes of a small -to-moderate general rule must qualify as a preparation for the crime committed by a group of persons by prior conspiracy or by an organized group .
2. However, creating such an organized criminal gang association as for the crime of small -to-moderate qualify for Part 1, Art. 257 of the Criminal Code of Ukraine as an organization of armed gangs, provided that the band has featured an organized group.
3. However, the objective of these forms of crimes related to the creation and participation in organized criminal associations as part of the union or its members committed crimes are not tied to the category of grave and especially grave crimes. So committing a criminal organization offenses small or moderate severity should qualify for multiple items that require participation in a criminal organization or committed her crime and commit a certain crime.
Conclusions. Thus, the category of grave and especially grave crimes in determining the purpose of a criminal organization though and is one of the criteria for distinguishing an organized group of criminal organization , but does not fully meet the realities of the present, because in some cases makes it impossible to qualify the creation of an organized criminal association for committing a minor offense as a completed crime. In this regard, it is advisable to supplement § 4 . 28 Criminal Code of Ukraine of goal criminal organization Misdemeanor or delete the reference to the category of crimes in general. In further scientific quests should continue to work on research opportunities for expansion goal of a criminal organization to commit crime moderate.
1. Turkevych I. Evaluation of certain provisions of the Criminal Code of Ukraine item criminologist / I. Turkevych / / The new Criminal Code of Ukraine: The application and study : Internat. scientific-practical . conf. Oct 25-26 . 2001: Mater. conf. - C. - H. , " Yurinkom Inter ", 2002. - P. 228-231 .
2. Semykina MV Criminal responsibility for creation of a terrorist group or terrorist organization : Author. Thesis . ... Candidate. Legal. sciences specials. 12.00.08 , " Criminal law and criminology, penal law" / M. Semykina . - H. , 2004. - 19 p.
3. Zharovska GP Complicity in the crime under criminal law Ukraine : Author. Thesis . ... Candidate. Legal. sciences specials. 12.00.08 , " Criminal law and criminology, penal law" / GP Zharovska . - K. , 2004. - 19 p.
4. Korzhanskyy MI Uholovnyy Law of Ukraine (scientific model) : monograph / MI Korzhanskyy . - D.: Legal. Acad. M- va ext. Affairs , 2004. - 200 p.
5. Kovitidi AF Institute of complicity in criminal law Ukraine : Author. Thesis . for obtaining sciences. degree candidate. Legal. sciences specials. 12.00.08 , " Criminal law and criminology, penal law" / O. Kovitidi . - H. , 1999. - 18 p.
6. Ivanenko IV Creating a criminal organization : some aspects of training / IV Ivanenko / / State and Law. - Vol. 33. - 2006. - P. 433-438 .
7. Pillars VP Criminal legal separation of organized criminal groups and criminal organizations / V. Pillars , AA Voznyuk / / Scientific Bulletin of the Lviv Institute of Law . - Series Law. - 2005. - Vol. 1. - P. 35-43 .
8. Modelnыy Uholovnыy Code ( s Changes on 16 November 2006 ) [ Эlektronnыy resource]. - Mode of access : http://docs.kodeks.ru/document/901781490 #
Вознюк А. Вчинення тяжкого або особливо тяжкого злочину як мета злочинної організації
У статті досліджується обґрунтованість застосування категорії тяжких та особливо тяжких злочинів у такій кримінально-правовій ознаці злочинної організації як мета її створення.
Ключові слова: тяжкий злочин; особливо тяжкий злочин; злочинна організація; мета злочинної організації; банда; терористична організація; організоване злочинне об’єднання.
Вознюк А. Совершение тяжкого или особо тяжкого преступления как цель преступной организации
В статье исследуется обоснованность применения категории тяжких и особо тяжких преступлений к такому уголовно-правовому признаку преступной организации как цель ее создания.
Ключевые слова: тяжкое преступление; особо тяжкое преступление; преступная организация; цель преступной организации; банд; террористическая организация; организованное преступное объединение.
Vozniuk A. Committing a grave or a particularly grave crime as a criminal organisation goal
The article investigates the validity of the application of the category of grave and especially grave crimes in legal characteristic of a criminal organization, being the purpose of its creation.
Keywords: grave crime; particularly grave crime; criminal organisation; goal of a criminal organisation; gang; terrorist organisation; organised criminal group.
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