In criminal law, liability is not always limited to the person who directly committed the crime. The law covers a much wider range of actions and roles, because those who organized, persuaded, assisted, provided means, or contributed to the implementation of the criminal intent in advance may be involved in the offense. Therefore, the issue of complicity is important for anyone who mistakenly believes that if “they did nothing,” then “they will not be held responsible for anything.”
The lawyers of the Repeshko and Partners law firm, contacted by our editorial staff, commented on how Ukrainian criminal law defines complicity in a criminal offense, what roles its participants may have, and what the difference is between complicity, concealment of a crime, and other related actions.
Indeed, some citizens mistakenly believe that the person who directly committed the crime is guilty of a criminal offense. This is true, but sometimes the person who did not do anything directly is the one to blame. Let’s consider a banal situation: two thieves climb into a house to rob it. Are they accomplices? Yes! But there is another person who, before these events, during friendly gatherings, repeatedly told that she knew a wealthy family from which there was something to steal, and the house was not guarded. If it was “fenced”, then the money would be enough to live for a while and not be sad.
Will this person be held accountable as an accomplice? Sitting in the investigator’s office, such a citizen will say that he only told about the wealthy family, that half the village knows that the family is wealthy and has money, that he did not hold a gun to the temples of the two who climbed into the house. At the same time, it is not forbidden for anyone to fantasize about how nice it is to have extra money and what to do with it.
The Criminal Code of Ukraine (CC of Ukraine) defines complicity in a criminal offense as the intentional joint participation of several subjects of a criminal offense in the commission of an intentional criminal offense. In other words, the law speaks not only about the one who directly committed the crime, but also about those who were consciously involved in it together with others. In such cases, it is not just the presence nearby that is important, but also the common intention and the real role of each participant.
The law distinguishes several types of accomplices, and each of them has its own separate legal role. The perpetrator, or co-perpetrator, is a person who, in complicity with other subjects of a criminal offense, directly committed a criminal offense. A person who committed it by using other persons who, according to the law, are not subject to criminal liability for the offense is also recognized as an executor. That is, it is not only about the person who personally implemented the criminal intent, but also about the person who actually used others for this.
An organizer is a person who organized the commission of a criminal offense or managed its preparation or commission. In addition, the law also considers an organizer to be a person who formed an organized group or criminal organization or managed it. The same category includes a person who provided financing or organized the concealment of the criminally unlawful activities of an organized group or criminal organization. That is, this is not necessarily a person who himself commits criminal acts, but he may be behind their planning, coordination and provision.
The law calls an instigator a person who, by persuasion, bribery, threat, coercion or in some other way, persuaded another accomplice to commit a criminal offense. These are cases when a person does not simply express an opinion, but actually pushes another person to commit a crime, influencing their decision and encouraging them to take specific actions.
An accomplice is a person who, by giving advice, instructions, providing means or tools, or removing obstacles, contributed to the commission of a criminal offense by other accomplices. An accomplice is also a person who promised in advance to hide the person who committed the criminal offense, the tools or means of committing it, traces of the criminal offense, or objects obtained by criminally unlawful means, to purchase or sell such objects, or to otherwise contribute to the concealment of the criminal offense. That is, the law includes as an accomplice not only direct assistance before or during the crime, but also previously promised assistance in concealing its consequences.
As we can see, a criminal is not only someone who climbs out the window with a friend. A guy who tries his best to persuade another guy to go and bury a “bookmark” in the park, promising to drink beer together, recommend him to his friends for work, etc. is also a criminal! A godfather who provided wire cutters, knowing that they would be used to cut a hole in a chain-link fence to enter the territory of the enterprise in order to steal a couple of pipes lying along this fence, is also a criminal.
At the same time, the law clearly distinguishes complicity from other actions that may be related to a crime, but are not considered complicity in it. The previously unpromised concealment of a person who committed a criminal offense, the tools and means of committing it, traces of the offense, or objects obtained by criminally unlawful means is not complicity. The purchase or sale of such objects is also not considered complicity if it was not promised in advance. However, this does not mean that such actions generally remain unpunished: in such cases, criminal liability arises only in cases expressly provided for by Articles 198 and 396 of the Criminal Code of Ukraine.
Article 198 of the Criminal Code of Ukraine provides for liability for the purchase, receipt, storage or sale of property knowingly obtained by criminal means without prior promise, if there are no signs of legalization of such property. This is punishable by probationary supervision for a term of up to three years, or restriction of liberty for the same term, or imprisonment for a term of up to three years.
The law also defines concealment of a crime separately. Concealment of a grave or especially grave crime without prior promise does not belong to complicity, but constitutes an independent element of a criminal offense. Such actions are also punished by probationary supervision for a term of up to three years, or restriction of liberty for the same term, or imprisonment for a term of up to three years.
However, the law makes an important exception: family members or close relatives of the person who committed the crime are not subject to criminal liability for concealment of the crime that was not promised in advance. The circle of such persons is determined by law.
Also, failure to report a reliably known criminal offense being prepared or committed is not complicity, even if such silence was promised before its completion. However, in this case, the law also warns: if a person’s actions contain signs of another criminal offense, he or she may be held responsible for it.
However, in many articles of the Criminal Code of Ukraine there is such a qualifying feature as “group of persons”. This is of fundamental importance, because the law assesses a crime committed by several people more strictly than the same crime committed by one person. This approach is explained by the fact that the actions of a group pose a greater public danger than the actions of a single offender. A criminal offense is recognized as committed by a group of persons if several perpetrators participated in it, that is, two or more people who acted without prior collusion among themselves. If several persons agreed in advance, even before the beginning of the criminal offense, on joint actions, then we are talking about the commission of a criminal offense by prior collusion by a group of persons.
Separately, the law distinguishes an organized group, which is recognized as an association of three or more persons who have previously organized themselves into a stable group for the preparation or commission of this or other criminal offenses. The mandatory features here are a single plan, the distribution of functions between the participants and a common understanding of the goal to which their actions are aimed.
The law considers a criminal organization to be an even higher level of organization. This is a stable hierarchical association of five or more persons, as well as its structural parts, who have united for joint activities by prior collusion. The purpose of such activities is the direct commission of serious or especially serious crimes, the management or coordination of the criminally unlawful activities of other persons, as well as ensuring the functioning of both the criminal organization itself and other criminally unlawful groups.
Therefore, for the law, not only the fact of committing a criminal offense is important, but also how many people participated in it, whether there was a prior agreement between them, how stable their association was and whether there was a division of roles. This is what determines the legal assessment of the actions of the participants and the severity of liability.
It should be noted that the number of accomplices directly affects the severity of the punishment. The more people are involved in the commission of a criminal offense and the higher the level of organization of their actions, the more serious the legal assessment. Conditionally speaking, if for a certain crime one person can receive four years of imprisonment, with the possibility of release from serving the sentence with probation, then when there are two perpetrators, we can talk about five years of actual imprisonment, and if the crime is committed by an organized group, the term of punishment can increase to seven years. That is why the phrase !But I was just standing at the hole in the fence! does not mean that a person will automatically avoid responsibility. In such cases, the law evaluates not the justification of the person himself, but his specific role in committing a criminal offense.
If we are talking about simple complicity, when several people once united to commit a crime, then the perpetrator or co-perpetrator bears criminal responsibility under the article of the Criminal Code of Ukraine that provides for the criminal offense committed by him. At the same time, the organizer, instigator and accomplice are also subject to criminal liability under the article, which provides for a criminal offense committed by the perpetrator, but with the obligatory indication of the role of each of them as an accomplice. That is, the law does not put an equal sign between them, but takes into account who organized, who incited to commit the crime, and who contributed to its commission.
At the same time, the signs that characterize the person of a specific accomplice of a criminal offense are attributed only to this person. Similarly, other circumstances that aggravate responsibility and affect the qualification of the perpetrator’s actions can be attributed only to that accomplice who was aware of these circumstances. For example, the instigator of theft will be held responsible precisely as the instigator of theft, and the court, when determining the punishment, will take into account his real contribution to the commission of this crime. If the perpetrator did not complete the criminal offense, that is, it is an unfinished criminal offense, other accomplices are also subject to criminal liability precisely for complicity in an unfinished criminal offense.
Accomplices are not subject to criminal liability for an act committed by the perpetrator if it was not covered by their intent. That is, a person is not responsible for everything that the perpetrator ultimately did, but only for what was the subject of the common intention. For example, several people agreed to rob a house, being sure that no one would be inside. They planned everything, two of them entered the house, but suddenly it turned out that a grandfather was there, who had unexpectedly come to visit. Then one of the attackers takes out the crowbar that he used to enter and deals a fatal blow to the grandfather. In such a situation, the other participants will be responsible for the theft, and the one who inflicted the fatal blow will also be responsible for the murder. The reason is that such actions already go beyond the common intent of the other accomplices.
Otherwise, the law applies to liability in the case of an organized group or criminal organization. The organizer of an organized group or criminal organization is subject to criminal liability for all criminal offenses committed by such a group or organization, if they were covered by his intent. Other participants in an organized group or criminal organization are subject to criminal liability for those criminal offenses in the preparation or commission of which they participated, regardless of the role played by each of them in a specific offense.
At the same time, the law provides for the possibility of voluntary refusal in the event of an unfinished criminal offense. Voluntary refusal is the final cessation by a person of his own free will of preparation for a criminal offense or an attempt to commit a criminal offense, if at the same time he was aware of the possibility of completing it. A person who voluntarily refused to complete a criminal offense is subject to criminal liability only if the act actually committed by him contains the elements of another criminal offense.
In the event of a voluntary refusal to commit a criminal offense, the perpetrator or co-perpetrator is not subject to criminal liability if the conditions stipulated in Article 17 of the Criminal Code of Ukraine are met. In such a case, other accomplices are subject to criminal liability for preparation for that criminal offense or for an attempt to commit that criminal offense, from which the perpetrator voluntarily refused to commit.
The organizer, instigator or accomplice are also not subject to criminal liability in the event of voluntary refusal, if they prevented the commission of a criminal offense or promptly notified the relevant state authorities of a criminal offense that is being prepared or is being committed. For an accomplice, voluntary refusal is also considered to be the failure to provide the means or instruments for committing a criminal offense or the failure to remove obstacles to its commission.
If one of the accomplices voluntarily refused to participate in a criminal offense, the perpetrator is subject to criminal liability for preparation for a criminal offense or for an attempt to commit a criminal offense – depending on the stage at which its action was terminated.
Therefore, we advise you to clearly understand that criminal liability may arise not only for the direct commission of a crime, but also for its organization, instigating or facilitating. Any participation in the preparation or implementation of a criminal offense requires legal assessment, therefore, in situations where there is a risk of being recognized as an accomplice, one should immediately seek professional legal assistance and not rely on the false belief that a secondary role automatically exempts one from criminal liability.
