Fraud (Article 159 of the Criminal Code) is regarded as the misappropriation of property belonging to other people. This crime may also involve the acquisition of rights to someone's values through breach of trust or deception. Much attention is paid to Part 3 of Art. 159 of the Criminal Code. Large-scale fraud poses a particular threat to society. Let's consider this part in more detail.
Art. 159, p. 3: sentences
A guilty person who used his official position in a crime or committed a large-scale act may be fined. Its value is determined based on the salary or other profit of the subject for 1-3 years. A fixed amount of 100 to 500 thousand rubles can be established. This sanction is the mildest punishment in the circumstances. Art. 159, part 3 also involves forced labor. Their duration is up to 5 years. This verdict, part 3 of article 159 of the Criminal Code may be accompanied by an additional restriction in the freedom of the perpetrator up to 2 years. The article also provides for the imprisonment of the subject. Its duration is up to 6 years. In Art. 159, part 3 of the Criminal Code of the Russian Federation, the punishment in the form of deprivation of liberty may be supplemented by a restriction of liberty or a fine. The size of the latter is up to 10 thousand rubles. or equal to the income / salary of the perpetrator for the month. Restriction of freedom under Art. 159, part 3 of the Criminal Code of the Russian Federation - punishment, the duration of which in this case is no more than one and a half years.
Clarification of concepts
Theft should be understood as free illegal seizures. They are committed guilty for selfish motives. Theft is also the treatment of property owned by another person, in favor of both the offender and other citizens. Acts falling under Art. 159, para. 3, harm the owner of the values or their other owner. Large should be understood as a size exceeding 250 thousand rubles in value terms.
Resolution of the Plenum of the Armed Forces
When considering the acts that are covered by Art. 159, part 3, judicial practice is based on clarifications of the Supreme Court. The decision was approved on December 27, 2007 and is numbered 51. It regulates the proceedings for cases involving embezzlement, misappropriation and fraud itself.
Grounds for liability
The subject of the act specified by Art. 159, part 3 of the Criminal Code, specific. For general reasons, sane individuals from 16 years of age are held liable. As for the part under consideration, the subject may be a person who resides in a particular post. Large size is another feature that allows you to apply Art. 159, part 3. The commentary to the norm indicates that the amount of damage in value (money) terms should not be more than a million rubles, but not less than 250 thousand. In case of loss of damage beyond the specified framework, other parts of the article in question are used.
Part 3, Art. 159 of the Criminal Code: comments
Criminal prosecution of persons who have committed criminal acts begins at the time of initiation of proceedings on the revealed facts or when they are brought in as suspects or accused. These statuses have certain features that distinguish them. In particular, a citizen is called a suspect in relation to whom a case has been instituted or who has been notified of his suspicion of an act considered in Art. 159, para. 3. A person becomes accused after the relevant resolution has been issued. This document spells out his status.
Preventive measure
If a citizen is suspected or accused of a crime, referred to in Art. 159, part 3, the investigator / interrogator may choose any option from Art. 98 Code of Criminal Procedure. As a rule, in relation to such persons, a measure is chosen in the form of:
- Signature not to leave the city.
- Arrest (home).
- Pledge.
- Custody.
- Personal guarantee.
The decision to place a citizen in custody, to apply a measure in the form of bail or house arrest is made exclusively in court. The taking of a subscription or personal guarantee is carried out in the course of preliminary work by authorized persons (interrogator / investigator).
Features of the application of sanctions
When considering acts falling under Art. 159, part 3, takes into account the level of threat to society, the nature of this danger. Equally important is the establishment of the exact amount of harm that arose from unlawful actions. When choosing sanctions, the personality of the perpetrator is investigated, the degree of the likely impact of the coercive measure on its subsequent correction. The living conditions of his immediate family are also taken into account.
Severity and leniency
A less severe punishment may be established on the basis of the provisions of article 64 of the Criminal Code. This norm provides that the body authorized to hear the case has the opportunity to apply milder sanctions or not to use additional coercive measures. Such decisions may be determined by the presence of factors relating to the motives and goals of the act, the direct role of the subject in the crime, the nature of his behavior in the commission of illegal actions. Other circumstances that significantly reduce the level of public threat can affect the mitigation of sanctions. More stringent than provided by Art. 159, part 3 or 4, a measure of coercion may be applied in the aggregate of crimes. This means that a person is involved in several articles at the same time. Also, toughening of sanctions takes place if the accused of fraud on the date of the proceeding of the crime has another outstanding punishment.
Confiscation of property
According to the provision of rule 104.1 of the code, this procedure does not provide for the seizure of money, material assets, property that was acquired by the perpetrator as a result of a criminal act in the form of fraud in accordance with the sentence. This right is established by article 1064 of the Civil Code. According to its provisions, the damage caused by the subject to the victim should be fully compensated. Compensates for damage, respectively, the perpetrator. The court, at the request of the prosecutor, the victim, the plaintiff (civil), their representatives, may decide to use measures aimed at providing compensation for damage resulting from the crime. This right is granted by Art. 230 Code of Criminal Procedure. The executors of this judicial act are employees of the FSSP. Thus, an order may impose an arrest on any property owned by the person responsible for unlawful acts.
Investigative Authorities
Cases that are instituted on the revealed facts of fraud belong to the category of alternative jurisdiction. Preliminary measures are the responsibility of investigators / interrogators of the Ministry of Internal Affairs and other law enforcement agencies that have identified a crime. The investigation of acts falling under part three, two and four of the article in question is carried out by officers of the investigative departments of the Russian Federation Department of Internal Affairs. As a rule, the duration of preliminary activities is within 2-6 months. If there are several episodes in production or if several persons are suspected of a crime, the investigation may drag on for several years.
Circumstances to be established
In the process of preliminary activities, employees who carry out investigative work or inquiries as part of a fraud case will identify and confirm the facts that must be proved in accordance with the CPC. These circumstances include:
- Events of an illegal act specified in the considered part of the commented article.
- Circumstances in which the crime was committed.
- Guilty of a citizen of the act incriminated to him. In particular, we are talking about the presence of a criminal composition in his behavioral acts.
- The size and nature of the damage suffered by the victim during the unlawful act.
- Factors that exclude crime and punishable behavior.
- Circumstances on the basis of which exemption from liability is possible.
- Mitigating and aggravating factors.
Evidence base
As part of the preliminary investigative measures, authorized employees collect materials that will act as a justification for their position in the recognition of the guilt of suspected persons. The usual evidence is:
- The testimony of the citizen directly involved in the proceedings as an accused or suspect.
- Conclusions and explanations of experts.
- Evidence.
- Indications of the victim of fraud. If the victim is a legal entity, then explanations are given by a representative from the organization.
- Conclusions and explanations of specialists.
- Protocols that record investigative measures and other documents of evidentiary value.
The preliminary activities phase ends when the collected materials are sent to the prosecutor. He, in turn, approves the indictment (conclusion).
Trial
Materials collected in relation to persons who committed acts under part 1, with an indictment, are sent by jurisdiction to the first instance magistrate. Cases of crimes that are indicated in parts three, four and two of the article under consideration are dealt with in the district (oblast) authorized bodies. Within the framework of the meeting, all materials and evidence collected at the stage of the preliminary investigative work are subject to direct study. As an exception, the legislation allows cases in which a court decision is made in a special criminal procedure. The decision on further procedural actions in relation to the accused should be based on the evidence that was studied during the meeting. In the course of the trial, the judge hears the statements of the defendants, victims, and witnesses. During the meeting, experts also testify. The judge announces the minutes and other documents, performs other actions aimed at examining the materials provided.
Important point
The trial is carried out exclusively in relation to the accused. At the same time, only materials on charges against a citizen are considered. A change in the prosecutor’s act is allowed in exceptional cases. Moreover, such actions should not entail a worsening of the position of the perpetrator. The change cannot violate the defendant's rights to defense. These rules mean that certain corrections of the charges can only be made towards mitigation.
Decision
Based on the results of the proceedings, research of the evidence base, and heard statements by the participants in the trial, the trial judge is entitled to approve an acquittal or an indictment. In the decision-making process, the authorized person must answer mandatory questions. They sound as follows:
- Is it proved that the alleged act was indeed committed.
- Is it established that the defendant was involved in the fraud?
- Whether the act is recognized as a crime.
- Which clause of part 3 of the article in question covers alleged illegal behavior.
- Has the defendant been proven guilty of fraud.
- Are the sanctions established by the relevant part of the article subject to application to a citizen.
- Whether circumstances have been identified that contribute to the tightening or mitigation of punishment.
However, it should be noted that in the proceedings on the article under review, the authorized person quite often during the initial examination of the evidence obtained establishes their futility. In this regard, judges have recently returned such materials back to the prosecutor. In such cases, they are guided by the grounds specified in article 237 (part one) of the Criminal Code. Thus, the collected materials are not even considered due to the inconsistency of the evidence. Despite this, in practice there are a lot of cases in which convictions were passed against the defendants. Nevertheless, with established facts it is unlikely to succeed.