ST 286 of the Criminal Code of the Russian Federation.
1. The commission by an official of actions that clearly go beyond the scope of his powers and entail a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person. for a period of up to six months, or deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or forced labor for a term of up to four years, or arrest for a term of four to six months, or imprisonment for a term of up to four years.
2. The same act committed by a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, as well as the head of a local government body, is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the salary or other income of the person convicted of a period of one to two years, or forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years or without it, or imprisonment for a term of up to seven years with deprivation of the right to hold certain positions, or engage in certain activities for a period of up to three years or without it.
3. Acts provided for in parts one or two of this article, if they are committed: a) with the use of violence or the threat of its use; b) using weapons or special means; c) causing grave consequences - is punishable by imprisonment for a term of three to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Commentary to Art. 286 Criminal Code
1. The objective side is characterized by three mandatory features.
An act represents actions that clearly go beyond the authority of an official (committing a crime through inaction is impossible).
There are four typical forms of abuse of power:
actions relate to the powers of another official (superior or equal in status);
actions can be performed only in the presence of special circumstances specified in the law or regulation;
actions are performed by an official alone, but can only be carried out collectively or in accordance with the procedure established by law, in agreement with another official or body;
no one under any circumstances has the right to perform such actions (see paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19).
2. The crime is completed from the moment the consequences occur in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state; in addition, it is necessary to establish a causal connection between the act and the consequences that occurred. In the absence of consequences, the act usually constitutes a disciplinary offense or an administrative offense.
3. The subjective side is characterized by direct intent, in contrast to Art. 285 of the Criminal Code, motives do not matter for the qualification of a crime. At the same time, the person must be aware that he is committing actions that clearly go beyond his authority.
4. Special subject: official.
5. The signs of a qualified staff (Part 2) coincide with similar signs in Art. 285 CC; the signs of a particularly qualified composition (part 3) are disclosed in paragraphs 20 - 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19.
Commentary on Article 286 of the Criminal Code of the Russian Federation
1. The public danger of a crime is determined mainly by two points: 1) a conscious and obvious departure of an official beyond the limits of his official competence; 2) a significant violation as a result of the commission of this act of interests protected by law. Often, abuse of power involves the use of violence or the threat of its use against citizens, the use of weapons or special means against them. This, of course, further increases the public danger of crime.
2. The object of the criminal attack is considered in the commentary. to Art. 285. An additional object of the crime is the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law, honor, dignity, and health of people.
3. The objective side is expressed in the commission by an official of actions that clearly go beyond the scope of his powers and entail a significant violation of the rights and legitimate interests of citizens or organizations, society or the state. A causal connection must be established between the commission of actions by an official that clearly go beyond the scope of his powers and the socially dangerous consequences that occur.
3.1. Actions that clearly go beyond the authority of an official can be expressed in the commission of: a) actions that are within the competence of another official (for example, the head of a police department, without being authorized to do so, gives permission to conduct a search); b) actions performed individually, which can only be carried out collectively (for example, the head of a representative body of local self-government personally makes a decision, the adoption of which is possible only collectively at a meeting); c) actions performed in the absence of special powers or conditions necessary in a particular situation (for example, the use of weapons by a police officer at a time when it was not caused by necessity); d) such actions that no official has the right to commit (for example, humiliating the honor and dignity of a subordinate in service by conducting a personal search of him (in the absence of legal grounds), mockery of a person, assault, etc. (clause “a » Part 3 of the commentary article).
3.2. It is necessary that each of the listed actions of the official be explicit, i.e. obviously going beyond the rights and powers granted to him by the relevant regulations (law, charter, regulation, instruction, order, etc.). In this case, it is necessary to establish which legal act and which specific provisions of it, defining the competence of the official, were violated.
3.3. The norm in question is general in relation to some special offenses of abuse of power (for example, some crimes encroaching on the constitutional rights and freedoms of man and citizen: part 2 of article 136, part 2 of article 137, etc.; certain crimes against justice : part 3 of article 294, article 299, 300, etc.). According to the rules of qualification, in the event of competition between a general and a special norm, preference is given to the latter.
3.4. The crime is completed (by the elements set out in Part 1) at the moment of the onset of consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state (see paragraph 3.5 of the commentary to Article 285).
4. The subjective side is characterized by direct or indirect intent. Motives and goals are not among the mandatory elements of a crime and do not affect the qualification of the act, but they can be taken into account when assigning punishment.
5. Special subject - official (see paragraphs 5 - 5.6 of the commentary to Article 285).
6. A qualified type of abuse of power (Part 2) is the commission of an act provided for in Part 1 of the comment. article, a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, as well as the position of the head of a local government body (see paragraph 6 of the commentary to Article 285).
7. A particularly qualified type of crime in question (Part 3) is the commission of an act provided for in Part 1 or Part 2 of the comment. article, if it was accompanied by: a) violence or the threat of its use; b) the use of weapons or special means; c) causing grave consequences.
7.1. The use of violence should be understood as any physical impact against the will of the victim or in addition to it, which can be expressed in beatings, torture, infliction of physical pain, bodily harm (in the form of mild, moderate and severe harm to health), as well as restriction of freedom.
The threat of violence can be expressed in the actions or statements of the perpetrator when there are real reasons to fear the use of physical violence.
7.2. In cases of causing serious harm to health, provided for in Parts 3 - 4 of Art. 111, as well as in the case of intentional deprivation of the life of the victim (Article 105), the act must be qualified according to the totality of crimes (Part 3 of Article 286 and Part 3 or 4 of Article 111 or Article 105).
If murder or serious or moderate harm to health is caused by an official when the limits of necessary defense are exceeded, as well as when the measures necessary to detain the person who committed the crime are exceeded, the act should be qualified only under Art. 108 or art. 114.
7.3. The use of a weapon means its direct use for its intended purpose, both for physical and mental impact on the victim (see paragraph 12 of the Resolution of the Plenum of the USSR Armed Forces of March 30, 1990 No. 4). Weapons should include firearms, pneumatic, gas or bladed weapons intended to hit a living target, the carrying and use of which requires special permission.
The use of a weapon includes the use of its destructive properties to cause harm to the victim. In this case, not only a shot, but also, for example, a blow with the butt of a firearm are considered as its use.
7.4. Special means include devices (devices) designed to suppress attacks by criminals, stop riots and other criminal acts (rubber sticks, tear gas, handcuffs, means of destroying barriers, means of forcibly stopping transport, etc.) (Article 14 of the Law about the police).
7.5. Causing grave consequences is an assessment criterion (see paragraph 7 of the commentary to Article 285). The consequences of a criminal act can be classified as serious when it resulted in mass unrest, major accidents, disruption of the work of a state or municipal body or institution, etc.
8. The acts described in part 1 belong to the category of moderate gravity, in parts 2 and 3 - to serious crimes.
Second commentary to Art. 286 of the Criminal Code of the Russian Federation
1. The rights and legitimate interests of citizens and organizations act as an additional object, and under the circumstances provided for in Part 3 of Art. 286 of the Criminal Code, and the health of citizens.
2. The objective side is characterized by the commission of actions that clearly go beyond the authority of an official, and the onset of socially dangerous consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.
3. If, in case of abuse of office, the culprit illegally, contrary to the interests of the service, uses the powers granted to him, then when exceeding his official powers, he commits actions that clearly go beyond the limits of his official competence. Therefore, when qualifying an act under Art. 286 of the Criminal Code, it is necessary to accurately establish the scope of the official’s powers, determined by law, charter, instruction, order or other regulatory act, and to find out which specific regulatory provisions were violated and what the violations were expressed in.
4. Exceeding official authority can be expressed in the following actions:
1) relating to the powers of another official (superior or equal in rank; of this or another department);
2) which could be committed by this official, but only in the presence of special conditions that were absent in the real situation (for example, the use of weapons against a minor, if his actions did not create a real danger to the lives of other persons; detention of a person in the absence of the grounds specified in Article 91 of the Code of Criminal Procedure of the Russian Federation);
3) constituting the exclusive competence of a collegial body, but committed by an official alone (for example, the sole drawing up of a verdict on the guilt of the defendant by the foreman of the jury);
4) which cannot be carried out by anyone and under any circumstances, since they are not within the competence of any official (for example, a personal search of its employees by the head of security of a state institution) (clause 19 of the resolution of October 16, 2009).
5. The crime should be considered completed from the moment the consequences specified in the law occur.
6. The subjective side of the crime is characterized by direct intent.
7. The subject of the crime is an official who does not hold public office or the position of head of a local government body.
8. The qualified elements of this crime (Part 2) are characterized by its commission by a person holding a public position in the Russian Federation, a public position in a constituent entity of the Russian Federation, or the position of the head of a local government body (see commentary to Part 2 of Article 285 of the Criminal Code).
9. A particularly qualified group (part 3) involves the commission of this crime:
a) with the use of violence or the threat of its use; b) using weapons or special means;
c) causing grave consequences.
The use of violence means physical influence on the victim by inflicting beatings, physical pain, mild or moderate harm to health, imprisonment, etc.
The threat of violence is a mental influence in which an official intimidates the victim with the actual use of any physical violence, up to the threat of murder.
The use of weapons or special means means their actual use for physical or mental influence on the victim: for intimidation (for example, shots over heads), for causing physical pain or harm to health, for restricting the personal freedom of the victim, etc.
Weapons are understood as objects and devices classified as weapons in accordance with the Federal Law “On Weapons” (for a more detailed description of weapons, see the analysis of Article 222 of the Criminal Code).
By special means we mean water cannons, tear gases, handcuffs, rubber sticks, special transport and other technical means of maintaining public safety, law and order and the personal safety of citizens, which are in service with the police, internal troops, and other state and municipal bodies (clause 20 of the resolution).
10. On causing grave consequences, see the commentary to Part 3 of Art. 285 CC.
Exceeding official authority
Lawyer Antonov A.P.
Concept, signs, difference from abuse of power
This crime is regulated by Art. 286 of the Criminal Code of the Russian Federation. This crime is a special type of abuse by an official of his official position. The difference between this crime and abuse of official powers is that in case of abuse, an official uses the powers granted to him unlawfully, contrary to the interests of the service, and in case of abuse of official powers, the person commits actions that clearly go beyond the limits of his official competence. To establish the signs of this crime, it is necessary to accurately establish the scope of powers granted to this official. These powers are determined by regulations, charter, instructions or other normative acts. Exceeding official authority occurs if the actions of this person were related to the performance of his official duties. Actions that go beyond the authority of an official will be considered: 1) Actions related to the authority of another person, an official of another department or collective body; 2) Actions committed by this official, but in the presence of certain circumstances; 3) Actions that no one can commit under any circumstances (for example: causing violence to a citizen who came to see a given official).
The subject is only an official from among civil servants.
The end of the crime
The crime will be considered completed from the moment the consequences occur, namely: a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. The resulting consequences must be in a causal connection with the actions of the official, which clearly go beyond the scope of his powers.
Exceeding official authority entails liability in the presence of intentional guilt, when the official realizes that the actions he has committed clearly go beyond the powers granted to him. In this case, the motive will not matter.
Qualification
Part 2 of this article contains the following qualifying circumstance - abuse of official powers by a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, or the head of a local government body.
Part 3 provides for three particularly qualifying circumstances. Violence can be expressed in the victim’s infliction of blows, beatings, minor and moderate harm to health, as well as in the deprivation of his freedom. If violence is expressed in the intentional infliction of grievous bodily harm or intentional murder, then such actions go beyond the scope of the offense under consideration and require qualification under other articles in the aggregate (Article 111 or Article 105 of the Criminal Code of the Russian Federation). Another particularly aggravating circumstance would be the use of weapons or special means. Special means will include items such as handcuffs, rubber batons, tear gas, water cannon and others. And the third sign will be the infliction of grave consequences. Such consequences may be: causing death by negligence or causing particularly large material damage and other serious harm.
Responsibility
Art. 286 of the Criminal Code of the Russian Federation provides for the following types of criminal liability for this crime: Part 1 of Article 286 of the Criminal Code of the Russian Federation - a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months, or deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or arrest for a term of four to six months, or imprisonment for a term of up to four years. Part 2 of Article 286 of the Criminal Code of the Russian Federation - a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to two years, or imprisonment for a term of up to seven years with deprivation of the right to occupy certain positions or engage in certain activities for a period of up to three years or without it. Part 3 of Article 286 of the Criminal Code of the Russian Federation – imprisonment for a term of three to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years
