Uridičeskaâ Nauka i Pravoohranitelʹnaâ Praktika (Dec 2014)
How to identify the person holding the highest position in the criminal hierarchy?
Abstract
The current version of the resolution of the RF Supreme Court Plenum of June 10, 2010 N 12, clarifying the provisions of the law on liability for crimes committed by a person holding the highest position in the criminal hierarchy (Part 4 of Article 210 of the RF Criminal Code), is criticized. Evaluative character of the considered aggravating circumstance doesn’t allow to develop clear criteria for identifying the leaders of the criminal environment. Basing on the theory provisions and court practice, the authors suggest three criteria. The first criterion is specific actions including: establishment and leadership of the criminal association (criminal organization); coordinating criminal acts; creating sustainable links between different organized groups acting independently; dividing spheres of criminal influence, sharing criminal income and other criminal activities, indicating person’s authority and leadership in a particular area or in a particular sphere of activity. The second is having money, valuables and other property obtained by criminal means, without the person’s direct participation in their acquisition; transferring money, valuables and other property to that person systematically, without legal grounds (unjust enrichment); spending that money, valuables and other property to carry out criminal activities (crimes themselves and conditions of their commission). The third is international criminal ties manifested in committing one of the crimes under Part 1 of Article 210 of the RF Criminal Code, if this crime is transnational in nature; ties with extremist and (or) terrorist organizations, as well as corruption ties. The court may use one or several of these criteria.
