Criminal Code of the Russian Federation in the latest edition:
Article 201.1 of the Criminal Code of the Russian Federation. Abuse of authority in the implementation of state defense orders
1. The use by a person performing managerial functions in a commercial or other organization of his powers contrary to the legitimate interests of this organization and in order to obtain benefits and advantages for himself or other persons, if this act entailed causing significant harm to the legally protected interests of society or the state in the performance of state defense order, -
shall be punishable by a fine in the amount of one million to three million rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years, or imprisonment for a term of four to four years. up to eight years with a fine in the amount of five hundred thousand to one million rubles or in the amount of wages or other income of the convicted person for a period of three to four years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
2. The same act:
a) committed by an organized group;
b) causing grave consequences, -
shall be punishable by imprisonment for a term of five to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.
Return to the table of contents of the document: Criminal Code of the Russian Federation in the latest edition
Comments on Article 201.1 of the Criminal Code of the Russian Federation
Criminal liability in the field of state defense procurement is provided for by the following articles of the Criminal Code of the Russian Federation:
- Article 201.1 “Abuse of authority in the implementation of state defense orders”;
- Article 285.4 “Abuse of official powers in the implementation of state defense orders.”
These articles of the Criminal Code of the Russian Federation were put into effect by Federal Law No. 469-FZ of December 29, 2017 and came into force on January 9, 2022. These articles became special rules in relation to Art. 201 of the Criminal Code of the Russian Federation “Abuse of Power” and Art. 285 of the Criminal Code of the Russian Federation “Abuse of official powers”.
Objective, subjective side
The objective side of the director’s abuse of power lies in actions or inactions expressed in the criminal use of managerial powers, which is due to selfish motives. The first prerequisite for qualification is the presence of selfish motives. Plus – the significance of the damage caused to the enterprise, expressed in losses, deterioration of the market situation, and non-receipt of benefits.
For example, in the Tver region, the chairman of a cooperative was held accountable for appropriating the cooperative’s production base, which caused significant damage to the organization (sentence No. 1-26/2015 of November 12, 2015).
The subjective side is expressed by intent. The director understands the criminal nature of his actions and the possibility of being held accountable, but selfish motives force him to commit a crime.
Similarities and differences Art. 201 and 201.1 of the Criminal Code of the Russian Federation
The disposition of Article 201.1 of the Criminal Code of the Russian Federation differs little from the disposition of Art. 201 of the Criminal Code of the Russian Federation (abuse of authority). The difference lies in the absence in Art. 201.1 of the Criminal Code of the Russian Federation for the purpose of causing harm to other persons, in the categories of victims, which are society and the state (in Article 201 of the Criminal Code of the Russian Federation - citizens, organizations and the state), and most importantly - in the context of the commission of the act in question - when fulfilling a state defense order. The rest of Part 1 of Art. 201.1 of the Criminal Code of the Russian Federation repeats the provisions of Part 1 of Art. 201 of the Criminal Code of the Russian Federation.
Punishment under Art. 201.1 of the Criminal Code of the Russian Federation is much stricter than the penalties provided for in Art. 201 of the Criminal Code of the Russian Federation, which is dictated by the importance for the state of the sphere relating to the state defense order.
Qualifying features. In Part 2 of Art. 201.1 of the Criminal Code of the Russian Federation introduces a qualified crime: an act provided for in Part 1 of Art. 201.1 of the Criminal Code of the Russian Federation, committed by an organized group or resulting in grave consequences. Whereas in part 2 of Art. 201 of the Criminal Code of the Russian Federation provides only for the occurrence of grave consequences.
The crime specified in Part 2 of Art. 201.1 of the Criminal Code of the Russian Federation is also serious and is punishable without alternative by imprisonment for a term of 5 to 10 years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to 5 years. Whereas in part 2 of Art. 201 of the Criminal Code of the Russian Federation provides for penalties in the form of a fine, forced labor, deprivation of the right to hold certain positions or engage in certain activities, and imprisonment for up to 10 years. Taking into account the fact that the sanctions part 2 of Art. 201.1 of the Criminal Code of the Russian Federation establishes a minimum amount of imprisonment, provides for a mandatory additional punishment and there are no alternative punishments that are milder than imprisonment; the punishment for committing this crime should be recognized as more severe.
The corpus delicti under Art. 201.1 of the Criminal Code of the Russian Federation
The objective side of the crime provided for in Art. 201.1 of the Criminal Code of the Russian Federation, constitute actions that consist in the use by a person performing managerial functions in a commercial or other organization of his powers contrary to the legitimate interests of this organization and in order to obtain benefits and advantages for himself or other persons, if this act entailed causing significant harm to the protected by law in the interests of society or the state when fulfilling the state defense order.
Abuse of authority in the execution of a state defense order should be understood as the commission by a person performing managerial functions in a commercial or other organization of such acts that, although they were directly related to the exercise of his rights and obligations, were not caused by official necessity and objectively contradicted the legitimate interests of this commercial or other organization, as well as those goals and objectives for which this person was vested with the appropriate powers (clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2021 N 21 “On some issues of judicial practice in cases of crimes against the interests of the service in commercial and other organizations (Articles 201, 201.1, 202, 203 of the Criminal Code of the Russian Federation)”).
Abuse of authority in the implementation of a state defense order is recognized, for example, as the actions of a person performing managerial functions in a commercial or other organization who, in order to obtain benefits and advantages for himself or other persons, misuses funds allocated for the implementation of a state defense order, if this entailed socially dangerous consequences provided for in Article 201.1 of the Criminal Code of the Russian Federation.
In paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2021 N 21, it is explained that the crime provided for in Article 201.1 of the Criminal Code of the Russian Federation is committed during the execution of such an order by a commercial or other organization (with the exception of commercial and other organizations specified in paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation), which is the main executor or a executor included in the cooperation of the main executor. In this case, the state defense order may include:
- research, development and other work (for example, on the creation, modernization of weapons, military and special equipment, disposal and destruction of decommissioned weapons, military and special equipment, destruction of chemical weapons, construction, reconstruction, technical re-equipment of facilities intended for the needs of ensuring the defense and security of the Russian Federation);
- supply of certain items for federal needs (for example, weapons, military and special equipment, raw materials, materials and components, military property, food and non-food products);
- supply of products in the field of military-technical cooperation of the Russian Federation with foreign states in accordance with the international obligations of the Russian Federation, and other supplies of products in order to ensure the defense and security of the Russian Federation.
The corpus delicti under Art. 201.1 of the Criminal Code of the Russian Federation is material and is completed from the moment of the onset of socially dangerous consequences - causing significant harm to the legally protected interests of society or the state when fulfilling a state defense order.
The concept of significant harm , as is known, is of an evaluative nature, which always causes law enforcement problems, since the legislator does not provide signs and criteria for the materiality of the harm caused.
Some examples of causing significant harm are given in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2021 N 21:
“ Causing significant harm to the interests of society or the state protected by law as a result of abuse of authority when executing a state defense order (Article 201.1 of the Criminal Code of the Russian Federation) is expressed, in particular, in significant costs associated with the elimination of defects made by the executor of the state defense order when performing construction, repair or other work or in the manufacture and delivery of low-quality products, in the postponement of military exercises or other events of a military nature due to violation of the deadlines for the supply of weapons, military or other property.”
The subjective side of the crime provided for in Art. 201.1 of the Criminal Code of the Russian Federation is characterized by an intentional form of guilt.
The motive for committing a crime is selfish or other personal interest.
The purpose of committing a crime is to obtain benefits and advantages for oneself or other persons.
The subject of the crime provided for in Art. 201.1 of the Criminal Code of the Russian Federation, special - a person performing managerial functions in a commercial or other organization, as well as in a non-profit organization that is not a government body, local government body, state or municipal institution, i.e. performing the functions of a sole executive body, a member of the board of directors or other collegial executive body, as well as a person who permanently, temporarily or by special authority performs organizational, administrative or administrative functions in these organizations.
In paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2021 N 21, it is stated that when resolving the question of whether a person is the subject of crimes provided for in Articles 201, 201.1 of the Criminal Code of the Russian Federation, it is necessary to proceed from the provisions of paragraph 1 of the notes to Article 201 of the Criminal Code RF, according to which criminal liability for committing these crimes lies with persons performing managerial functions:
- in a commercial organization , for example, in a joint-stock company, limited liability company, economic partnership, production cooperative, with the exception of commercial organizations specified in paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation;
- in a non-profit organization that is not a state body, local government body, state and municipal institution and other non-profit organization specified in paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation, for example, in a consumer cooperative, public organization, or real estate owners' association.
Taking into account the provisions of the Federal Law “On State Defense Order”, subjects of abuse of power when executing a state defense order (Article 201.1 of the Criminal Code of the Russian Federation) are persons performing managerial functions in the specified commercial or non-profit organization, which is the main contractor that has concluded a state contract with the state customer for state defense order, or a contractor who is part of the cooperation of the lead contractor, participating in the implementation of research, development or other work, the supply of certain items for federal needs or in accordance with the international obligations of the Russian Federation and has concluded a contract (agreement) with the lead executor or executor under such order.
Past the cash register
From May 13, 2015 to July 8, 2015, the plant incurred a tax debt of 4.2 million rubles.
The general director of the company knew about this - he had already received requirements from the inspectorate. The company did not comply with them, and the Federal Tax Service decided to collect taxes, penalties and fines from the company using funds in bank accounts. In total, there were four acts of collection in the amount of 3.314 million rubles, operations on the organization’s current accounts were stopped, which the general director knew about. He also knew that the tax office had additionally decided to recover money from the taxpayer’s property in the amount of almost 1 million rubles.
During the same period, the company sold coal to another company for RUB 90.5 million. The general director made sure that the proceeds from this transaction did not go to the company’s blocked accounts, but to third parties: he wrote corresponding letters to counterparties asking them to transfer money to certain accounts.
Law enforcement agencies concluded that the top manager could have paid off the tax debt, but did not do so on purpose, because the tax authorities did not receive the money that ended up in other accounts. This means that the general director hid the organization’s funds on a large scale.
Distinction between administrative and criminal liability in the field of state defense procurement
The Code of the Russian Federation on Administrative Offenses provides, in particular, for the liability of an official for the following administrative offenses:
- violation of the terms of a state contract for a state defense order or the terms of an agreement concluded for the purpose of fulfilling a state defense order (Article 14.55 of the Code of Administrative Offenses of the Russian Federation);
- liquidation or repurposing by the main contractor without agreement with the state customer of production facilities that ensure the supply of products under the state defense order (Article 14.55.1 of the Code of Administrative Offenses of the Russian Federation);
- actions (inaction) of the main contractor, contractor, which lead or may lead to an unreasonable increase in the price of products under the state defense order, non-fulfillment or improper execution of the state contract under the state defense order (Article 14.55.2 of the Code of Administrative Offenses of the Russian Federation).
The delimitation of administrative liability under the above articles from criminal liability under Article 201.1 of the Criminal Code of the Russian Federation occurs depending on the presence or absence of consequences of the act in the form of causing significant harm:
“If a person exercising managerial functions in a commercial or other organization, abusing his powers, committed such violations when fulfilling a state defense order, but did not seek to derive benefits and advantages for himself or other persons, and (or) the committed act did not cause significant damage harm to the legally protected interests of society or the state, then these acts do not constitute a crime under Article 201.1 of the Criminal Code of the Russian Federation” (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 29, 2021 N 21).
