Abuse of power is a crime that cannot be called rare. Thus, according to the Judicial Department under the Armed Forces of the Russian Federation, in 2018, 145 citizens were convicted under Article 201 of the Criminal Code of the Russian Federation, and in the first half of 2022 – 58 people (main article). However, it can be argued that this crime is committed much more often, since the issue of filing an application with law enforcement agencies is often the responsibility of the person who abused his powers. Naturally, filing such an application is contrary to the interests of the managers of a commercial organization.
Consider the characteristics of simple abuse of power
- Object: normal activities and interests of a commercial or other organization.
- Objective side: the use by a subject holding a leadership position in a commercial or other organization of his powers contrary to the interests of the company and in order to obtain benefits for himself (other persons), or for the purpose of causing harm to other persons. A prerequisite for bringing to responsibility is causing significant harm to the rights and interests of citizens, organizations, the state and society.
- Entity: a person performing the functions of a sole executive body, a member of the board of directors, as well as an entity performing organizational, administrative or administrative functions in an organization on a permanent or temporary basis.
- Subjective side: intentional form of guilt. There must be a goal of extracting benefits and advantages for oneself (other subjects), or causing harm to other persons.
Harm can consist not only of causing material, but also other damage. For example, this could be reputational losses, interference with the work of the company, concealment of theft and other crimes, etc. The concept of “substantial harm” is evaluative: this means that in each specific case the court independently decides the question of the presence (absence) of significant harm.
A circumstance aggravating the guilt of the attacker is the onset of grave consequences. As in the case of significant harm, this category is evaluative. For example, serious consequences include:
- accidents;
- long stops of transport, stopping the production process;
- cessation of work of various organizations, institutions and enterprises;
- causing injury or death, etc.
Second commentary to Art. 201 of the Criminal Code of the Russian Federation
1. The immediate object is the normal management activity of a commercial or other organization that complies with Russian legislation and the statutory objectives of this organization. An additional object is the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law.
2. The objective side is characterized by actions or inactions consisting of the use of managerial powers contrary to, i.e. to the detriment of the legitimate interests of the organization.
3. A mandatory feature of the objective side is socially dangerous consequences in the form of causing significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state. The recognition of harm as significant is at the discretion of the court.
4. The subjective side is characterized by direct intent and the special purpose of extracting benefits and advantages for oneself or other persons (relatives, loved ones, business partners, etc.) or causing harm to other persons (out of hatred, revenge or other motives).
5. Subject - special: a person performing managerial functions in a commercial or other organization, i.e. functions of a sole executive body, 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 duties in organizations that are not a state body, local government body, state or municipal institution , a state corporation, a state company, a state or municipal unitary enterprise, a joint stock company in which a controlling stake belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities (notes 1 to Article 201 and 1 to Article 285 of the Criminal Code). The content of organizational-administrative and administrative-economic functions (albeit in relation to officials) is disclosed in the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and abuse of official powers” (p. 4 and 5).
6. A qualified crime involves causing grave consequences (for example, causing major property damage, disorganizing the work of an enterprise, breaking a major contract, a large number of citizens injured as a result of the crime, undermining the business reputation of an economic entity, etc.).
Punishments for abuse of power
Alternative sanctions under Part 1 of Article 201 of the Criminal Code of the Russian Federation:
- a fine of up to 200 thousand rubles (or in the amount of the income of the convicted person for a period of up to 1.5 years);
- up to 480 hours of compulsory work;
- up to 2 years of repairs;
- up to 4 years of forced labor;
- up to 6 months of arrest;
- up to 4 years in prison.
If the crime entails serious consequences, the punishment, of course, becomes more severe. In this case, the manager risks ending up in a colony for up to 10 years, and additional sanctions may include a ban on holding certain positions for 3 years.
Who is the subject of the crime under Art. 201 of the Criminal Code of the Russian Federation - abuse of official powers?
August 3, 2020
The subjects of the crime provided for in Article 201 of the Criminal Code of the Russian Federation (abuse of official powers) are persons performing managerial functions in a commercial or other organization, the main purpose of which is to make a profit, with the exception of state and municipal unitary enterprises, joint-stock companies, the controlling stake of which belongs to of the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as persons performing management functions in a non-profit organization that is not a state body, local government body, state or municipal institution, state corporation, state company.
Also, the Supreme Court of the Russian Federation clarified some provisions of Article 200.4 of the Criminal Code of the Russian Federation (abuses in the procurement of goods, works, services to meet state or municipal needs).
In particular, in cases of this category, courts are recommended to pay special attention to establishing all the mandatory signs of the subjective side of this crime, which, in accordance with the disposition of the article, includes, in addition to guilt, the motive for the offense (selfish or other personal interest).
Moreover, within the meaning of the law, other personal interest in committing an act provided for in Article 200.4 of the Criminal Code of the Russian Federation may be expressed in the desire of a contract service employee, contract manager or other person representing the interests of the customer in the field of procurement of goods, works, services to meet state or municipal needs, to obtain non-property benefits for oneself or other persons, including receiving a reciprocal favor, enlisting support in resolving any issue, for example, in employment or promotion of one’s relative.
As a manifestation of other personal interest in relation to this crime, the desire, as a result of a violation of the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state or municipal needs, can also be considered to receive promotions, state or other awards, to occupy higher position, etc.
Prepared by the Board for Supervision of Criminal Procedure and
Operational Investigative Activities
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What sentences do the court pass under Article 201 of the Criminal Code of the Russian Federation? Let's look at a few examples.
In 2016, Dmitry Kryukov, ex-general director of Kommunalnye Tekhnologii LLC, actually paid Stroygarant+ LLC twice for services provided. These economically unjustified expenses led to the inability of Communal Technologies LLC to fulfill its duties to the municipal administration of housing and communal services and improvement of Cheboksary. In view of this, in 2016, emergencies related to heat supply occurred, and city residents faced interruptions in the heat supply. The court found Kryukov guilty of abuse of power and fined him 190 thousand rubles.
And one more example.
From 2008 to 2010, Oleg Kovalev, the founder of the Orsk Carriage Plant, transferred the enterprise’s money to the accounts of shell companies controlled by him, thereby causing damage to the credit institution in the amount of 1.3 billion rubles. In addition, Kovalev provided the bank with deliberately forged documents about the plant’s purchase of certain equipment. As a result, the bank lost another 92 million rubles. The founder was found guilty of committing crimes under Part 4 of Article 159 of the Criminal Code of the Russian Federation and Part 2 of Article 201 of the Criminal Code of the Russian Federation. As punishment, the businessman will be sent to prison for 6.5 years.
As we can see, the punishment under Article 201 of the Criminal Code of the Russian Federation can be either relatively mild or quite harsh, especially if the entrepreneur “along the way” committed other crimes. Therefore, if you become involved in such a case, contact experienced criminal lawyers. A specialist, depending on the circumstances of the case, can achieve the termination of criminal prosecution, the imposition of the most lenient punishment without the application of additional sanctions, and even an acquittal. Remember that the sooner a lawyer gets involved, the more he can do to protect you.
Commentary on Article 201 of the Criminal Code of the Russian Federation
1. The social danger of the crime lies in the fact that, by abusing their official powers, persons performing managerial functions in commercial and other organizations, disrupt the normal work of those structures where they operate, harm public relations in the economic sphere, and cause significant harm to the rights and legitimate interests of citizens, organizations, society and the state.
2. The main object is social relations that ensure the normal management activities of a commercial or other organization that comply with the legislation of the Russian Federation and the statutory objectives of this organization. An additional object is the property and other legitimate interests of the organization, the rights and legitimate interests of citizens or organizations, or the interests of society and the state protected by law.
3. In accordance with Art. 50 of the Civil Code, legal entities are divided, taking into account their main activities, into commercial and non-profit organizations. The organizational and legal forms of activity of all legal entities are regulated by law.
3.1. Commercial organizations are organizations of various forms of ownership that pursue profit as the main goal of their activities. The Civil Code has established an exhaustive list of forms of such organizations. They can only be created in the form of business partnerships (full partnership, limited partnership), business companies (joint stock company, limited liability company, additional liability company), production cooperatives, state and municipal unitary enterprises based on the right of operational management or economic management (Articles 50, 66 - 115 of the Civil Code). Commercial organizations are, in particular, banks and other credit organizations (see Article 1 of the Law on Banks), with the exception of the Central Bank, which is one of the state bodies (see Article 75 of the Constitution and Federal Law of July 10, 2002 N 86-FZ “On the Central Bank of the Russian Federation (Bank of Russia)” <1>). ——————————— <1> NW RF. 2002. N 28. Art. 2790.
3.2. Non-profit organizations do not have profit as the main goal of their activities and do not distribute profits among participants (Article 50 of the Civil Code). In accordance with the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” <1> they can be created to achieve social, charitable, cultural, educational, scientific and managerial goals, in order to protect the health of citizens, develop physical culture and sports, satisfying the spiritual and other non-material needs of citizens, protecting the rights and legitimate interests of citizens and organizations, resolving disputes and conflicts, providing legal assistance, as well as for other purposes aimed at achieving public benefits. ——————————— <1> NW RF. 1996. N 3. Art. 145.
3.3. Non-profit organizations are formed in the form of consumer cooperatives (see Law of the Russian Federation of June 19, 1992 N 3085-1 “On consumer cooperation (consumer societies, their unions) in the Russian Federation” (as amended on March 21, 2002) <1>), public (see Federal Law dated May 19, 1995 N 82-FZ “On Public Associations” (as amended on February 2, 2006) <2>) or religious (see Federal Law dated September 26, 1997 N 125-FZ “On freedom of conscience and religious associations" (as amended on 07/06/2006) <3>) organizations (associations) financed by the owner of institutions, charitable and other funds (see, for example, Federal Law dated 07/07/1995 N 135-FZ "On charitable activities and charitable organizations" (as amended on December 30, 2006) <4>; Federal Law dated May 7, 1998 N 75-FZ "On Non-State Pension Funds" (as amended on October 16, 2006) <5>), as well as in other forms, provided for by law (see, for example, Federal Law dated December 17, 1999 N 211-FZ “On the general principles of organization and activities of associations for economic interaction of constituent entities of the Russian Federation” (as amended) dated 12/08/2003) <6>, etc.). ——————————— <1> Vedomosti RF. 1992. N 30. Art. 1788; NW RF. 1997. N 28. Art. 3306; 2000. N 18. Art. 1910; 2002. N 12. Art. 1093.
<2> Northwestern Russian Federation. 1995. N 21. Art. 1930; 1997. N 20. Art. 2231; 1998. N 30. Art. 3608; 2002. N 11. Art. 1018, N 12. Art. 1093, N 30. Art. 3029; 2003. N 50. Art. 4855; 2004. N 27. Art. 2711, N 45. Art. 4377; 2006. N 3. Art. 282, N 6. Art. 636.
<3> Northwestern Russian Federation. 1997. N 39. Art. 4465; 2000. N 14. Art. 1430; 2002. N 12. Art. 1093, N 30. Art. 3029; 2003. N 50. Art. 4855; 2004. N 27. Art. 2711; 2006. N 29. Art. 3122.
<4> Northwestern Russian Federation. 1995. N 33. Art. 3340; 2002. N 12. Art. 1093, N 30. Art. 3029; 2003. N 27 (part 2). Art. 2708; 2004. N 35. Art. 3607; 2007. N 1 (part 1). Art. 39.
<5> Northwestern Russian Federation. 1998. N 19. Art. 2071; 2001. N 7. Art. 623; 2002. N 12. Art. 1093; 2003. N 2. Art. 166; 2004. N 49. Art. 4854; 2005. N 19. Art. 1755; 2006. N 43. Art. 4412.
<6> Northwestern Russian Federation. 1999. N 51. Art. 6286; 2002. N 12. Art. 1093; 2003. N 50. Art. 4855.
3.4. According to Art. 7.1 Federal Law “On Non-Profit Organizations” <1> type of non-profit organizations are state corporations (for example, an agency for the restructuring of credit organizations). The management personnel of these structural entities should be classified as subjects of crimes under Chapter. 23. ——————————— <1> NW RF. 1999. N 28. Art. 3473.
4. The objective side of abuse of power includes three elements: 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; 2) consequences in the form of significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state; 3) a causal relationship between the employee’s behavior and these consequences. According to the legislative structure, the corpus delicti is material. The crime is completed (by composition) at the moment of the onset of consequences in the form of significant harm to a commercial or other organization, citizens, society or the state <1>. ——————————— <1> The author’s idea of the legislative structure of the elements of a crime cannot be considered indisputable. It is logical to assume that the main element of the crime is formal and material, and the qualified element is material. A crime with the main elements (Part 1) is completed at the moment of significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, and with a qualified crime (Part 2) - at the moment of grave consequences. Significant harm is an assessment category that includes large-scale losses, job cuts, deterioration of the organization’s position in the product market, a decrease in the profitability of the enterprise, and a decrease in the tax base. This harm can also be expressed in damage to the business reputation of the organization - the occurrence of an intangible socially dangerous consequence. The author himself indicates this in paragraph 7.1 of the comment. to Art. 201 (see also paragraph 5.1 of the commentary to Article 202). Note scientific ed.
4.1. In case of abuse of power, a person acts within the limits of his official competence. However, in some cases these powers may be exceeded. However, in contrast to Ch. 30, where, along with the rule on liability for abuse of official powers (Article 285), an article is provided on liability for abuse of official powers (Article 286), in Ch. 23 there is no rule on liability for abuse of power by persons performing managerial functions in commercial and other organizations. Taking into account the well-known legal postulate “NULLum crimen sine lege” (“There is no crime without the law”), as well as the provision on the inadmissibility of applying the criminal law by analogy, enshrined in Part 2 of Art. 3 (“Principle of Legality”), the involvement of a managerial employee of a commercial or other organization who has exceeded his authority in the service should be carried out on a general basis (for example, according to the rules providing for liability for harm to health, for an attack on honor, freedom and dignity personality, etc.).
4.2. Powers can be used both by action, when a person performing managerial functions in a commercial or other organization, performs actions within the limits of his powers of an organizational-managerial or administrative-economic nature, and by inaction, when the necessary actions of a managerial nature are not performed, which the person must perform was obliged by his official position.
4.3. Organizational-administrative and administrative-economic responsibilities, taking into account the position of the persons performing them, have an independent legal nature and differ from similar functions performed by officials of state bodies, local governments, state and municipal institutions, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. The latter are characterized by a public legal nature.
4.4. Organizational and administrative functions should be understood as functions related to managing a team, a work area, organizing the work of subordinates, hiring, promotion, dismissal from work, maintaining discipline, etc.
4.5. Administrative and economic functions are expressed in the powers of a person to manage or dispose of the organization’s property: establishing the procedure for storage, processing, sales, ensuring control over these operations, etc.
5. Managerial functions and powers vested in the guilty person are determined in the constituent documents (charter, regulations) or in other documents drawn up on their basis. Thus, the main powers of a director (general director, commercial director, executive director, etc.) can be set out in a special agreement concluded by this person with the board of founders, board or other bodies of a commercial organization. In this regard, the disposition of the comment. articles can be classified as blanket.
6. The act must be committed contrary to the interests of the organization in which the perpetrator performs his managerial functions. The provision of the norm in question on the use by a person of his powers contrary to the legitimate interests of a commercial or other organization should be understood quite broadly as an action (inaction) associated with a violation of the law. At the same time, the action (inaction) of an employee associated with a violation of the law or other legal norms cannot be considered committed in the legitimate interests of the organization, even if it brought this organization any benefit, for example material. Actions committed contrary to the interests of the organization, but in the public interest (for example, spending the organization’s funds for charitable and other socially useful purposes) do not entail a LC.
In addition, it must be taken into account that in practice the interests of a commercial or other organization do not always coincide with the interests of the state, therefore the norm in question refers to the legitimate interests of the organization, i.e. not contradicting the legislation of the Russian Federation.
7. Significant harm to the rights and legitimate interests of citizens, public and state interests within the framework of the commented norm is an evaluative concept. Its presence or absence is determined by the court based on the specific circumstances of the case. This harm can be expressed in the form of material (property) damage (including in the form of lost profits) to various owners, including the organization where the perpetrator serves. Taking into account the economic sphere of activity of commercial and other organizations, it usually consists of material losses and losses, restrictions on property rights and other infringements of economic interests.
For citizens and organizations, it can be expressed in additional forced payments for services provided or, conversely, in the lack of receipt of funds or services for work performed for a given commercial or other organization. Thus, using the granted powers, persons performing managerial functions in commercial and other organizations inflate prices and other terms of the contract in comparison with those officially established or generally accepted (interest rates on deposits, amounts or conditions of collateral, tariff rates, etc.).
7.1. The harm will be significant if it consists of large-scale losses, leads to job losses, significantly reduces the tax base, poses a threat to the insolvency of the organization or the profitability of its division, or its elimination is associated with large material costs. Moral damage affecting the business reputation of the organization may also be considered significant.
7.2. Harm to the interests of society or the state can be expressed in a reduction in domestic production, leakage of currency abroad, delays in the payment of wages, pensions and other payments, etc.
7.3. When deciding whether the harm caused is significant, “it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of the enterprise, organization, institution, the nature and size of the material damage they suffered, the number of injured citizens, the severity of the moral, physical or property damage caused to them.” and so on." (Clause 9 of the Resolution of the Plenum of the USSR Supreme Council dated March 30, 1990 No. 4).
8. The subjective side is expressed in the intentional form of guilt in the form of direct or indirect intent. The culprit is aware of the socially dangerous nature of his official behavior, foresees that his use of managerial powers in violation of the law will (may) entail significant harm or grave consequences, and desires or consciously allows such consequences to occur.
9. A mandatory subjective feature of a crime is the purpose specified in the law of obtaining benefits and advantages for oneself or other persons (relatives, loved ones, business partners, etc.) or causing harm to other persons. The content of benefits and advantages can be very different. They can be permanent cash payments (for example, as a percentage or share of a specific contract amount or profit) or one-time payments (property in the form of dachas, apartments, cars, land plots, etc. or preferential rights to use them). The perpetrator can receive benefits and advantages both for himself and for other persons (relatives, relatives, other organizations in whose activities he is interested, etc.).
The goal in the context of this norm must be in conflict with the legitimate interests of the organization and can be either of a property nature or expressed in increasing influence on the decision-making process, especially related to the resolution or approval of civil transactions, volumes and other conditions of sales, positions in pre-contractual and contractual disputes, appointment to a position, or consist of improving working conditions and the possibility of making a profit. At the same time, it should be borne in mind that the purpose of causing harm as an element of the subjective side should not imply the intentional commission of another crime (for example, destruction or damage to property, theft of someone else’s property, etc.).
10. The motives for committing this crime can be very different and have no significance for qualification, but can be taken into account when assigning punishment.
11. The subject of the criminal attack is special. He is a person performing managerial functions in a commercial or other organization (see note 1 to the commentary article).
12. Part 2 comments. Article provides as a qualifying feature the infliction of grave consequences. The legislator does not disclose the content of this characteristic. It is an evaluative concept, therefore its establishment requires taking into account and assessing all factual circumstances associated with the infliction of harm. In particular, such consequences of abuse of power that led to major accidents, economic ruin of the victims, caused death or serious harm to the health of at least one person, etc. can be recognized as grave.
13. A distinctive feature of crimes against the interests of the service in commercial and other organizations is a new procedure for initiating criminal prosecution, which is quite rare for criminal law. We are talking about the principle of dispositivity, enshrined in the note. 2 comments article. It lies in the fact that in the case where a crime provided for in this or another article of Chapter. 23 of the Criminal Code, damage has been caused to the interests of an exclusively commercial organization that is not a state or municipal enterprise, criminal prosecution is carried out at the request of this organization or with its consent. In Art. 23 of the Code of Criminal Procedure specifies that a statement or consent must be received before the initiation of a criminal case from the head of the organization.
At the same time, it should be noted that it is the leader who can commit an act, the elements of which correspond to the elements of the crimes of Chapter. 23 of the Criminal Code of the Russian Federation. Who in this case has the right to make a statement about the initiation of criminal prosecution or give their consent? In this situation, the participants or shareholders of the organization, in accordance with the procedure established by law and constituent documents, must appoint a new person who will represent their interests. And this manager will have the right to make a corresponding statement on behalf of the legal entity and other organizations. In such cases, the initiation of a criminal case is carried out in accordance with the general procedure and the consent of the injured party is not required.
14. If, as a result of abuse by a person performing managerial functions in a commercial or other organization, harm is caused to the employees of this organization, their legitimate interests must be protected in the same manner as the rights and interests of other citizens, i.e. in accordance with note. 3 comments article, according to which criminal prosecution should be carried out on a general basis, if the act provided for in this article or other articles of Chapter. 23 of the Criminal Code, caused harm to the interests of other organizations, as well as the interests of citizens, society or the state. However, if a person performing managerial functions in a commercial or other organization causes harm through his actions to a citizen who is an employee of this organization, it is necessary to find out the nature of this harm in order to be able to distinguish it from the harm caused to a legal entity. In the latter case, initiation of criminal prosecution is possible only in the manner provided for in the note. 2 to art. 201.
15. The act provided for by both parts of the commentary. Articles refer to crimes of medium gravity.
