Immediate participation of all persons in a crime as a sign of joint participation: problems of understanding and qualification

The immediate participation of all persons is a distinctive sign of joint participation in a crime. In the doctrine and practice it is understood as the joint fulfillment of the actus reus by several people. However, there is a problem of its defining, which leads to two approaches to it in the legal community: 1. according to the narrower approach, joint participation is possible only in case of the joint committing of a criminal act, which is an obligatory feature of the actus reus; 2. according to the wider approach, joint participation is possible even in case of a partial fulfillment of any other feature of the actus reus (for example, method or crime situation), which implies indirect participation in the act. The dispute focuses on the criminal assessment of a person who directly assists the perpetrator. In the course of the discussion the Supreme Court of the Russian Federation has adopted the view that the direct assistance is part of the actus reus, which, in principle, can be justified for some acts (i.e., for rape). However, currently this position has been interpreted quite broadly, which means that people who were on the scene during the crime and merely presumed the possible intention of another accomplice to cause harm to the victim can be considered co-perpetrators in legal terms. Obviously, such a deviation from the basic principles of criminal law (principles of legality and guilt) does not allow applying such a broad approach in the qualification of joint participation. In this regard, the preference should be given only to the narrower approach, which, however, has its own flaws hindering its unconditional application without any exceptions. These include, in particular, the fact that the strict adherence to the approach discussed excludes the possibility to qualify the joint participation in crimes, the actus reus of which (as described in the law) can not be carried out jointly by several people. Admitting the possibility of certain exceptions, it appears necessary to develop such parameters for the narrower approach to be used for adequate assessment of the legal role of a person who actually participated together with other culprits in a direct encroachment on the object of legal protection.

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