Criminal Liability for Implication in a Crime

Larisa Vladimirovna Gotchina

, Marina Andreevna Dvorzhitskaya

and Alexey Vitalievich Sumachev

Saint Petersburg Academy of the Investigative Committee of the Russian Federation, Saint Petersburg, Russia

Leningrad Regional Branch of St. Petersburg University of the Ministry of Internal Affairs of the Russian Federation, St.

Petersburg, Russia

Institute of State and Municipal Officers' Training Of the Academy of Law and Management of the Federal Penal Service

of Russia, Ryazan, Russia

Keywords: Criminal law, criminal law remedies, implication, failure to report, misprision, criminal connivance.

Abstract: In criminal law, highly latent acts constituting an implication in a crime. Itreduce the level of detection of

crimes at the stages of preparation and attempt, increase the percentage of unsolved crimes in the total number

of registered ones. The problems of qualification of acts that form implication in a crime are associated with

the expansion of the institution of implication by failure to report a crime and with the institution of complicity

in a crime. Implication is possible for a socially dangerous act committed by a person who is not the subject

of the crime due to his insanity, as well as for a crime committed in complicity. Misprisionis aimed at hiding

the criminal event, traces, items obtained by criminal means, or the person who committed the predicate crime.

Along with the physical, it can be accomplished through intellectual actions. The purpose of this article is to

research the features of criminal liability for implicationin a crime. To achieve this goal, the following tasks

were solved: an analysis of scientific publications on the research topic, as well as materials of criminal cases

on non-reporting of a crime and misprisionof a crime was carried out; the models of qualification of the

implication acts widespread in the investigative and judicial practice are classified. The methodological basis

was formed by sociological research methods. In the article, a proposal to use the identified psychological,

moral, criminological and criminal-law characteristics of the personality of the concealer person and those

who do not report the crimeis made. There is a significant increase in the share of Russians who are not ready

to show civic activity in law enforcement actions and appeal to legal measures to protect their values. The

results of the study may be important for the further development of theoretical ideas about the criminal legal

institution of complicity in a crime.

1 INTRODUCTION

Implication in crime is a poorly studied institution of

criminal law. It is often viewed in the context of

complicity. Presumably, from this in judicial practice,

mistakes are made when distinguishing between

implication in a crime and complicity. The novelty is

the consideration of connivance as a form of

implication that requires consolidation in the criminal

law, and its recognition as a criminal legal means of

protecting the population from crime. The tasks of the

work were: identification of models of qualification

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of touching acts, with errors made; analysis of signs

of corpus delicti provided for in Articles 316 and

2056 of the Criminal Code of the Russian Federation.

2 MANUSCRIPT PREPARATION

A content analysis of the works of Russian and

foreign authors on implication in crime, analysis of

judicial practice in order to identify typical mistakes

made when distinguishing between implication in a

crime and complicity has been carried out. The

164

Gotchina, L., Dvorzhitskaya, M. and Sumachev, A.

Criminal Liability for Implication in a Crime.

DOI: 10.5220/0010632900003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

164-168

ISBN: 978-989-758-532-6; ISSN: 2184-9854

conclusions are supported by the opinion of the

interviewed citizens, the results of statistical

observation. 189 citizens were interviewed in 2017-

2018 in the following regions of Russia: in the

republics of Dagestan and Karelia, Pskov and Tver

regions and the city of St. Petersburg. In addition, the

article uses the generalized conclusions of the study

of materials from criminal cases.

3 RESULTS AND DISCUSSION

In the theory of criminal law, the implication of a

crime is understood as an act of a person arising in

connection with another crime, but not being in a

causal relationship with it and not causing its

commission. The connection of implication in a crime

is expressed in its “proximity” to the crime committed

by other persons (Maltsev, 2017). In this regard, it is

generally accepted to refer to its forms as misprision

of crimes, failure to report them and connivance at

them (Wittenberg, 1976). The first two, according to

the current Criminal Code of the Russian Federation,

form independent corpus delicti.

The public danger of touching acts is that, as a

result of their commission, “the established procedure

for the activities of law enforcement agencies to

identify and solve crimes, to expose the perpetrators,

disrupts the normal functioning of the bodies

administering justice” (Dvorzhitskaya, 2019).

Implication in the crime contributes to the misprision

of the guilty person who committed the main crime.

Of the materials of the studied criminal cases initiated

under Articles 2056 and 316 of the Criminal Code of

the Russian Federation, in 60.5% and 73.6% of cases,

respectively, such persons were brought to criminal

responsibility after a long time from the moment of

its commission (Dvorzhitskaya, 2019). Often, the

touched persons are the only eyewitnesses of the

criminal act, that is, only the persons who committed

the main crime and the touched one were present at

the place of its commission.

In judicial practice, mistakes are made when

distinguishing between implication in a crime and

complicity. Among the models for qualifying touchy

acts, the following are common: 1) re-qualification of

especially grave crimes committed with complicity,

on Art. 316 of the Criminal Code of the Russian

Federation; 2) re-qualification of terrorist crimes

committed in complicity, in Art.2056 of the Criminal

Code of the Russian Federation. This is evidenced by

the generalized data of the studied criminal cases. So,

in 47.6% of cases, the initial qualification was

changed from complicity in the main crime under

Article 316 of the Criminal Code of the Russian

Federation, in 16.3% - under Article 2056 of the

Criminal Code of the Russian Federation. This is due

to the fact that when investigating crimes, difficulties

often arise in distinguishing between concealers, non-

carriers and connivors and accomplices, therefore, at

the initial qualification, the acts of the touched are

often qualified as complicity. Their distinctive

features are that the touched person himself does not

participate in the commission of the main criminal

act, the touched offense is not in a causal relationship

with the latter, etc.

As we see it, “implication is possible not only to a

crime, but also to a socially dangerous act committed

by a person who does not possess the sign of the

subject of a crime, for example, due to his insanity”

(Dvorzhitskaya, 2019). Among the studied criminal

cases, 5.7% of such cases were identified. Thus,

citizen K. hid the traces of a crime under Part 4 of Art.

111 of the Criminal Code of the Russian Federation,

committed by a person in respect of whom the

materials of the criminal case were sent for the

application of compulsory measures of a medical

nature. K. was convicted under Art. 316 of the

Criminal Code of the Russian Federation.

Meanwhile, “the criminal legislation recognizes

misprision as a crime only when it is aimed at

concealing especially grave crimes. It seems that the

misprision of serious criminal acts is also socially

dangerous, since the behavior of the misprision is

equally independent of the category of the concealed

act. It is necessary to differentiate criminal

responsibility for concealing grave and especially

grave crimes ”(Dvorzhitskaya, 2018). Such a

proposal was cited in the draft Model Criminal Code

of the CIS member states.

It should be noted that misprision of crimes is

carried out in the form of actions. So, S., having

become an eyewitness to the murder of F., committed

by K., together they carried the body out of the house

and buried it, that is, they took active steps to conceal

it. Meanwhile, the courts make mistakes when the

verdicts indicate that the objective side of the act

consists of: 1) misprision and non-reporting (31.3%);

2) only non-reporting (8.5%). Thus, B., having

moved F.'s corpse, took active steps to conceal the

traces of D.'s murder of F. However, failure to report

a crime cannot be qualified as misprision, the latter

can also be committed by giving advice or developing

a plan to conceal a criminal act (intellectual actions)

... This is confirmed in judicial practice. Thus, A. was

convicted of giving advice on how to conceal the

traces of a crime. The objective side of concealing a

crime may consist of concealing: the events of the

Criminal Liability for Implication in a Crime

165

main crime, traces, items obtained by criminal means,

or the person who committed the main crime. So, in

criminal cases initiated under Art. 316 of the Criminal

Code of the Russian Federation, hiding (in%): the

event of the main crime - 23.2; traces - 62.2; items

obtained by criminal means - 5.7; the person who

committed the main crime - 8.9.

The increase in the number of crimes of a terrorist

nature led to the introduction in the Criminal Code of

the Russian Federation of responsibility for failure to

report a crime, which was supposed to increase the

effectiveness of countering terrorist crimes

(Nekrasov, 2018). Foreign researchers also

emphasize the need to continue efforts to stimulate

new research and assess the effectiveness of measures

taken in the fight against terrorism (Lum, 2006),

“develop preventive and potential measures to

counter terrorism, including measures of a criminal

law nature” (Mott, 2018, Figueroa, 2018). We believe

that “there is no need to expand the list of crimes,

failure to report which is a criminal offense”

(Dvorzhitskaya, 2019). “A philosophy of necessity is

unlikely to promote a worldview that overestimates

the power of punishment, safety and justice” (Goshe,

2019). Criminalization of implication in a crime is

seen as effective only if it is appropriate. In addition,

“reporting a crime is costly, from initial contact with

the police, to engaging in lengthy, sometimes

stressful interviews about the circumstances

surrounding the crime, to possibly providing evidence

in court” (Sidebottom, 2015).

Meanwhile, in order to eliminate qualification

problems, a theoretical understanding (Sabatov,

2018) of the content of the constituent elements in

criminal cases of failure to report a crime is

necessary. So, the objective side of the investigated

act consists in inaction, in failure to fulfill the legal

obligation to report a crime, that is, in failure to

provide the necessary information to the appropriate

authority about the person who prepares, commits or

has committed a crime. In investigative and judicial

practice, persons are held accountable for failure to

report an impending crime in 25.6% of cases; in

progress - 34.9%; perfect - 39.5%.

A person prosecuted under Article 2056 of the

Criminal Code of the Russian Federation must: 1) be

aware of the crime - reliably know about the fact of

an impending, committed or committed crime; 2) fail

to provide information to law enforcement agencies

in the shortest possible time, without harm to oneself

after receiving information about an impending or

committed crime. In 98.4% of the criminal cases

studied by us, a person had such an opportunity

without harm to himself.

It seems that “responsibility for failure to report a

crime is advisable from the age of 16”

(Dvorzhitskaya, 2019), since it is from this age that it

begins for a number of basic unlawful actions

specified in the disposition of Article 2056 of the

Criminal Code of the Russian Federation.

A fairly widespread form of implication in a crime

is the connivance of a crime, the responsibility for

which is provided for in cases specially stipulated by

law. It is only possible to condone an impending or

ongoing crime. It should be borne in mind that

connivance, in the narrow sense, should be

considered as an independent crime, however, there

is no norm about it in the Criminal Code of the

Russian Federation. In a broad sense, it can be

included in the objective aspects of offenses with a

special subject, when a person has a special duty to

counteract crime. For example, Articles 285, 290 and

293 of the Criminal Code of the Russian Federation.

As a rule, “touchy ones” are connected with any

kind of relationship with criminals, for example, in

criminal cases initiated under Articles 316 and 2056

of the Criminal Code of the Russian Federation, they

were (in%): friends - 32.1 and 41.9, respectively;

neighbors - 2.8 and 18.6; acquaintances - 26 and 16.3;

cohabitants - 6.1 and 2.3; relatives –11 and 7; having

children in common - 13.8 and 4.6.

The realization of moral requirements in human

behavior is manifested in their observance or non-

observance in life, "with the help of conscience and

shame" (Heller, 1988). At the same time, the circle of

persons who are not prosecuted under 2056 of the

Criminal Code of the Russian Federation includes a

spouse and close relatives. However, touching acts

are also committed by other persons with whom close

relationships develop. For example, M. hid the

murder of R. committed by his partner K. In the

criminal cases studied, psychological and psychiatric

examinations were carried out in 16.3% (Art. 2056 of

the Criminal Code of the Russian Federation) and

15.4% (Art. 316 of the Criminal Code of the Russian

Federation).

So, A.V. Shesler pointed out that family or

kinship feelings more strongly influence "the

behavior of a person than fear of criminal

punishment" (Shesler, 2009). Conducted by co-

author M.A. Dvořitskaya, a survey of citizens showed

that they would agree to conceal a crime if it was

committed by an acquaintance (friend, neighbor,

colleague), 13.8% of the respondents; close relative

(mother, father, brother, son, daughter, grandfather,

grandmother) - 41, 8. Therefore, “a society's

understanding of the processes taking place in it, the

dominant moods and problems will allow a better

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understanding of the factors influencing the

commission of crimes” (Raymen, 2016).

Meanwhile, the sense of justice of the touched is

characterized by a compromise between legal norms

and norms based on selfish interest, as well as

between the norms of law and the rules of morality.

In the materials of criminal cases initiated under

Articles 316 and 2056 of the Criminal Code of the

Russian Federation, the motives or other motives of

the criminals were revealed (in%): fear of unjustified

prosecution - 22.3 and 18.6, respectively;

unwillingness to communicate with law enforcement

agencies - 19.4 and 28.3; indifference - 17 and 15;

misunderstood sense of camaraderie - 14.6 and 2;

related feelings - 7.7 and 3.2. “The proportion of

those who are not ready to be civic in law

enforcement, interact with law enforcement agencies

and provide assistance to police officers has

significantly increased” (Bondaletov, 2014).

Avoidance of communication with her, reluctance to

report committed offenses is facilitated by the

negative attitude of the country's residents towards

the institutions of power (Nivette, 2013).

To solve the problems of bringing to criminal

responsibility persons who have committed acts that

form an implication for a crime, to reduce the latency

of such acts, it is proposed to use the features of the

personality of the harboring and non-reporting, which

we have identified. Their behavior is more focused on

their own egocentric qualities to the detriment of

socially approved ones. Meanwhile, the personality

of those who do not report a crime is characterized by

a positive social orientation.

In particular, from the materials of criminal cases

initiated under Articles 316 and 2056 of the Criminal

Code of the Russian Federation, in which they were

(in%): with secondary specialized education - 68.3

and 83.7; not married - 62, 6 and 60, 5; having

children - 39.9 and 51.2; previously convicted - 65.4

and 11.6; employed - 43.9 and 58.1; those who are

friendly to the team - 5.7 and 34.9; as well as having

such individual psychological qualities revealed

during psychological and psychiatric examination,

such as: orientation on one's own egocentric criteria

in behavior to the detriment of socially approved ones

- 47.4 and 57.1; disdain for social norms - 18.4 and 0;

the tendency to avoid responsibility - 7.9 and 28.6.

4 CONCLUSIONS

1. Implication is possible for a crime committed in

complicity.

2. Misprision of crimes is the commission of

actions to conceal an event, traces, items obtained by

criminal means, or the person who committed the

main crime; along with physical, it can be

accomplished through intellectual actions.

3. The inclusion in the Criminal Code of the

Russian Federation of the norm on non-reporting of a

crime is associated with the objectively developed

situation in the country, characterized by an increase

in the terrorist threat. Responsibility for it is advisable

from the age of 16.

4. The personality of the non-communicator in

comparison with the personality of the harboring

person is characterized by a positive social

orientation.

5. It is only possible to condone an impending or

ongoing crime. It should be borne in mind that

connivance, in the narrow sense, should be

considered as an independent crime, however, there

is no norm about it in the Criminal Code of the

Russian Federation.

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