Resolution of the plenum on self-government

In the list of crimes considered in the Criminal Code, arbitrariness occupies a special place. In Art. 330 of the Criminal Code describes liability for unauthorized unlawful actions that result in harm to citizens or organizations. The unauthorized nature of such actions is considered a mandatory feature of this crime. The subjective side of the concept of arbitrariness presupposes intent - the guilty person considers himself to have the right to claim certain rights that are disputed by others, while taking actions to restore his rights using illegal methods.

Difficulties in assessing crimes of arbitrariness

The accumulated judicial practice on the use of criminal article 330 demonstrates different interpretations of this norm, difficulties in the qualification of a crime and law enforcement actions. The problem is that it is difficult to determine the line separating self-defense of civil law from arbitrary actions and abuse of law. Very often, arbitrariness has something in common with theft. The main reasons for the difficulties in assessing the elements of crimes of arbitrariness arise from the vague formulation of the disposition of the article, where the essence of arbitrariness is not fully disclosed.

In legal science, practically no research is carried out to study the composition of arbitrariness. There is no methodology for correctly establishing harm in cases of arbitrariness; it is considered in each individual case, based on the opinion of the judge. The existing concept of arbitrariness, due to its vagueness, allows many intentional acts committed contrary to the law to be classified under Article 330. If you think about it, in lawsuits for murder, theft or rape, there are all the signs of the concept of arbitrariness: the legality of criminal actions is disputed by the injured party, the acts were committed contrary to the law, the damage caused is significant. But it is obvious that this approach to matters is not correct.

All this is a consequence of the unsuccessful formulation of the disposition of the article. The discrepancies in this norm are clearly manifested in the judicial practice of the Blagoveshchensk court: Citizen A. seized a mobile phone from citizen S., pulling it out of the case hanging on the victim’s belt.

Presence of selfish or other personal motives for abuse of official powers

The most difficult thing for law enforcement agencies is to prove the presence of selfish or personal interest. Without this corpus delicti there will be no crime.

The mere illegality of a subject’s use of his official powers cannot indicate that he has a personal interest.

For example, the cassation ruling of the Supreme Court of the Russian Federation dated September 7, 2016 N 75-UD16-3. The Supreme Court of the Russian Federation declared the sentence passed against two officials of the Ministry of Agriculture of the Republic of Karelia illegal, unfounded and subject to cancellation, since the lower court did not specify what exactly the selfish motives of the convicts were and did not provide relevant evidence.

In addition, in paragraphs 13 and 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and exceeding official powers” it is stated that the commission of an act in a situation of extreme necessity or in pursuance of a mandatory order cannot be considered criminal.

But sometimes courts interpret the concept of “other personal interest” too broadly. For example, in Resolution No. 209-UD18-5 of August 13, 2018, the Supreme Court considered that the accused “falsely understood the interests of the service.” The court interpreted the fact that the serviceman organized a fundraiser to carry out repairs to the office premises as “a desire to properly carry out the instructions of the leadership of the military school to carry out repairs in the unit entrusted to him, that is, to improve the results of his official activities and increase his authority before the higher command.”

Challenging the law in cases of arbitrariness

The next problem that hinders the effective application of Article 330 of the Criminal Code is considered to be “challenging” the legality of the actions of the entity carrying out the unauthorized seizure of someone else’s property. “Challenging” is a mandatory sign of an objective party when qualifying this crime. How should “challenge” be expressed? The judicial authorities do not give a clear answer to this question. There is such a definition of “challenge” - this is a statement by the injured party about the violation of actual or perceived rights by the arbitrary actions of the other party. Other lawyers consider this interpretation to be imperfect. Based on this definition of “challenge,” it follows that in the absence of a statement from the victim, he cannot count on the protection of his rights, since the criminal liability of the perpetrator begins after the filing of a statement by the injured party. Some lawyers believe that the term "challenge" should be replaced. Neutral concepts such as “agreement” or “approval” are recommended.

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In connection with the questions arising from the courts in cases of abuse of official powers and exceeding official powers, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, decides:

1. Draw the attention of the courts to the focus of criminal liability for crimes against the interests of the public service to ensure the protection of citizens from corruption and other socially dangerous acts committed by officials. Persons who abuse official powers or exceed their official powers encroach on the activities of state bodies, local government bodies, state and municipal institutions, state corporations, the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, regulated by regulatory legal acts, resulting in significant the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law are violated.

2. When considering criminal cases of abuse of power (Article 285 of the Criminal Code of the Russian Federation) and abuse of official powers (Article 286 of the Criminal Code of the Russian Federation), the courts must establish whether the defendant is the subject of these crimes - an official. In this case, one should proceed from the fact that in accordance with paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation, officials are recognized as persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, economic functions in state bodies, local bodies self-government, state and municipal institutions, state corporations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

3. Acting as a representative of government should include persons vested with the rights and responsibilities to exercise the functions of legislative, executive or judicial authorities, as well as, based on the content of the note to Article 318 of the Criminal Code of the Russian Federation, other persons of law enforcement or regulatory authorities vested in the law. order of administrative powers in relation to persons who are not officially dependent on them, or the right to make decisions binding on citizens, organizations, institutions, regardless of their departmental affiliation and forms of ownership.

4. Organizational and administrative functions should be understood as the powers of an official that are associated with the management of the labor collective of a state body, state or municipal institution (its structural unit) or individual employees subordinate to them, with the formation of personnel and the determination of the labor functions of employees, with the organization of the procedure for serving, the application of incentives or rewards, the imposition of disciplinary sanctions, etc.

Organizational and administrative functions include the powers of persons to make decisions that have legal significance and entail certain legal consequences (for example, to issue a certificate of temporary disability by a medical worker, to establish by an employee of a medical and social examination institution that a citizen has a disability, to take exams and give grades by a member state examination (certification) commission).

5. The authority of an official to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of organizations, institutions, military units and subdivisions, as well as to perform other actions (for example , on making decisions on the calculation of wages, bonuses, monitoring the movement of material assets, determining the procedure for their storage, accounting and control over their expenditure).

6. Exercising the functions of an official under special authority means that a person exercises the functions of a representative of government, performs organizational, administrative or administrative functions assigned to him by law, other regulatory legal act, order or instruction of a superior official or an authorized body or official (for example, the functions of a juror). The functions of an official under special authority can be performed for a certain time or once, and can also be combined with the main job.

When performing the functions of an official temporarily or when performing them under a special authority, a person can be recognized as an official only during the period of performance of the functions assigned to him.

If a person is appointed to a position in violation of the requirements or restrictions established by law or other regulatory legal acts, a candidate for this position (for example, in the absence of a diploma of higher professional education, the required work experience, with a criminal record, etc.), out of selfish or other personal interest, used official powers contrary to the interests of the service or committed actions that clearly went beyond the scope of his powers, resulting in a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, then such actions should be qualified accordingly as abuse of official power authority or as an abuse of power.

7. In the Armed Forces of the Russian Federation, other troops, military (special) formations and bodies performing functions to ensure the defense and security of the state, officials who permanently, temporarily or by special authority perform organizational, administrative and (or) administrative and economic functions , may be superiors by official position and (or) military rank.

Chiefs by official position are persons to whom military personnel are subordinate in service. These should include:

persons holding relevant military positions according to the state (for example, commander of a squad, company, head of the regiment's clothing service);

persons temporarily performing duties in the relevant military position, as well as temporarily performing the functions of an official under special authority.

Civilian personnel are superiors to subordinate military personnel in accordance with their regular positions.

Superiors by military rank are defined in Article 36 of the Internal Service Charter of the Armed Forces of the Russian Federation (in particular, sergeants and foremen are superiors by military rank for soldiers and sailors of only one military unit with them).

8. The subject of the crimes provided for in Part 1 of Article 285 of the Criminal Code of the Russian Federation and Part 1 of Article 286 of the Criminal Code of the Russian Federation is a person performing the functions of a representative of the government, performing organizational and administrative and/or administrative functions in a state body, local government body, state and a municipal institution, a state corporation, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, and at the same time not holding a public position in the specified bodies of the Russian Federation or a public position of the constituent entities of the Russian Federation.

9. When deciding on the subject of the crime provided for by part 2 of Article 285 of the Criminal Code of the Russian Federation or part 2 of Article 286 of the Criminal Code of the Russian Federation, the courts should proceed from paragraphs 2 and 3 of the notes to Article 285 of the Criminal Code of the Russian Federation, according to which persons holding public positions in the Russian Federation, are understood to be persons holding public positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of federal state bodies (paragraph 2 of the notes), and persons holding public positions of the constituent entities of the Russian Federation are persons holding positions established by the constitutions or the charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies of the constituent entities of the Russian Federation (clause 3 of the notes). The consolidated list of government positions in the Russian Federation was approved by Decree of the President of the Russian Federation of January 11, 1995 N 32 (as amended on December 1, 2008).

10. Along with a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, the subject of liability under Part 2 of Article 285 of the Criminal Code of the Russian Federation and Part 2 of Article 286 of the Criminal Code of the Russian Federation is the head of a local government body, which should be understood only as the head of a municipal entity - higher an official of a municipal entity, endowed by the charter of the municipal entity with its own powers to resolve issues of local importance (Article 36 of the Federal Law of October 6, 2003 N 131-FZ “On the general principles of the organization of local self-government in the Russian Federation”).

11. Courts should distinguish the criminal actions of officials from the actions of other persons performing managerial functions in a commercial or other organization, whose liability for abuse of their powers is established by Article 201 of the Criminal Code of the Russian Federation.

The subjects of this crime are persons performing managerial functions in a commercial or other organization, the main purpose of which is to make a profit, as well as in a non-profit organization that is not a state body, local government body, state or municipal institution, or state corporation.

Persons performing management functions in a commercial or other organization include persons performing the functions of a sole executive body, member of the board of directors or other collegial executive body, as well as persons permanently, temporarily or by special authority performing organizational, administrative or administrative functions. in these organizations (for example, director, general director, board member of a joint-stock company, chairman of a production or consumer cooperative, head of a public association, religious organization).

In cases where these persons use their powers contrary to the legitimate interests of a commercial or other organization and in order to obtain benefits and advantages for themselves or other persons or to cause harm to other persons, they are subject to liability under Article 201 of the Criminal Code of the Russian Federation if this act entailed causing a significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state.

12. If, as a result of abuse of power by a person performing managerial functions in a commercial or other organization, harm is caused to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise, criminal prosecution is carried out at the request of the head of this organization or with his consent (Article 23 of the Code of Criminal Procedure RF). In case of harm to the interests of other organizations (for example, a non-profit organization, state or municipal enterprise), as well as the interests of citizens, society or the state, criminal prosecution for abuse of power in a commercial or other organization is carried out on a general basis (paragraph 3 of the notes to Article 201 of the Criminal Code RF).

When, as a result of abuse of power by the head of a commercial or other organization, harm is caused exclusively to this organization, criminal prosecution of the head is carried out upon the application or with the consent of the management body of the organization, whose competence includes the election or appointment of the head, as well as with the consent of a member of the management body of the organization or persons having the right to make decisions determining the activities of a legal entity.

13. In cases where an act containing signs of abuse of official powers (Article 285 of the Criminal Code of the Russian Federation) or excess of official powers (Article 286 of the Criminal Code of the Russian Federation) is committed by an official to eliminate a danger that directly threatens the individual, the legally protected interests of society or the state, and this the danger could not be eliminated by other means, then such an act cannot be considered criminal, provided that the limits of extreme necessity were not exceeded (Article 39 of the Criminal Code of the Russian Federation).

14. The acts of an official related to the use of official powers, resulting in harm to interests protected by criminal law, cannot be recognized as criminal if they were committed in pursuance of an order or instruction that is obligatory for him (Article 42 of the Criminal Code of the Russian Federation).

An official who has committed an intentional crime under Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, in pursuance of an order or instruction known to him to be illegal, bears criminal liability on a general basis. In this case, the actions of a superior official who issued such an order or instruction should be considered, if there are grounds for it, as incitement to commit a crime or organization of this crime and qualified under the relevant article of the Special Part of the Criminal Code of the Russian Federation with reference to part 3 or part 4 of article 33 Criminal Code of the Russian Federation.

An official who has issued a knowingly illegal order or instruction to a subordinate who did not realize the illegality of such an order or instruction and carried it out is subject to liability as a perpetrator of a crime.

15. Under the use by an official of his official powers contrary to the interests of the service (Article 285 of the Criminal Code of the Russian Federation), the courts should understand the commission of such acts that, although they were directly related to the exercise by the official of his rights and duties, were not caused by official necessity and were objectively contrary to the general the tasks and requirements imposed on the state apparatus and the apparatus of local self-government bodies, as well as those goals and objectives for the achievement of which the official was vested with the appropriate official powers. In particular, the actions of an official who, out of selfish or other personal interest, performs actions within the scope of his official powers in the absence of mandatory conditions or grounds for their commission (for example, issuing a driver’s license to persons who have not passed a mandatory exam; hiring of persons who do not actually perform labor duties; release by commanders (chiefs) of subordinates from the performance of their official duties with assignment to work in commercial organizations or arrangement of the official’s personal household).

Responsibility under Article 285 of the Criminal Code of the Russian Federation also arises for the intentional failure by an official to fulfill his duties in the event that such inaction was committed out of selfish or other personal interest, objectively contradicted the goals and objectives for the achievement of which the official was vested with the appropriate official powers, and entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state.

16. When deciding on the presence in the actions (inaction) of the defendant of the crime provided for in Article 285 of the Criminal Code of the Russian Federation, the following signs of the subjective side of this crime, in addition to intent, should be understood:

selfish interest - the desire of an official, by committing unlawful actions, to obtain for himself or other persons a benefit of a property nature, not related to the illegal gratuitous circulation of property for his own benefit or for the benefit of other persons (for example, illegal receipt of benefits, credit, exemption from any property costs , return of property, repayment of debt, payment of services, payment of taxes, etc.);

other personal interest - the desire of an official to obtain a non-property benefit, caused by such motives as careerism, nepotism, the desire to embellish the actual situation, receive a mutual favor, enlist support in resolving any issue, hide one’s incompetence, etc.

Protectionism should be considered as the use by an official of his official powers contrary to the interests of the service, which is understood as illegal assistance in employment, promotion, encouragement of a subordinate, as well as other patronage of the service, committed out of selfish or other personal interest.

17. In contrast to the theft of someone else’s property using an official position, abuse of official powers out of selfish interest consists of such acts of an official that are either not related to the seizure of someone else’s property (for example, receiving property benefits from using property for other purposes), or are related to temporary and (or) compensated seizure of property.

If an official’s use of his official powers resulted in the theft of someone else’s property when it was actually confiscated, the act is fully covered by Part 3 of Article 159 of the Criminal Code of the Russian Federation or Part 3 of Article 160 of the Criminal Code of the Russian Federation and does not require additional qualifications under Article 285 of the Criminal Code of the Russian Federation.

In cases where an official, using his official powers, along with the theft of someone else's property, committed other illegal actions related to the abuse of official powers out of selfish or other personal interest, what he did should be qualified according to the totality of these crimes.

Likewise, based on the provisions of Article 17 of the Criminal Code of the Russian Federation, the issue related to the legal assessment of the actions of the official who committed official forgery must be resolved. In cases where such a person, in connection with the performance of his official duties, has introduced knowingly false information or corrections into official documents that distort their actual content, the act must be qualified under Article 292 of the Criminal Code of the Russian Federation. If, along with committing actions entailing criminal liability under Article 285 of the Criminal Code of the Russian Federation, they commit official forgery, then the act must be qualified in conjunction with Article 292 of the Criminal Code of the Russian Federation.

18. In cases of abuse of official powers and exceeding official powers, the courts must, along with other circumstances of the case, find out and indicate in the verdict exactly what rights and legitimate interests of citizens or organizations or legally protected interests of society or the state were violated and whether the damage is these rights and interests are harmed in a causal connection with the official’s violation of his official powers.

A significant violation of the rights of citizens or organizations as a result of abuse of official powers or exceeding official powers should be understood as a violation of the rights and freedoms of individuals and legal entities guaranteed by generally recognized principles and norms of international law, the Constitution of the Russian Federation (for example, the right to respect for the honor and dignity of an individual, personal and family life of citizens, the right to the inviolability of home and privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as the right to judicial protection and access to justice, including the right to an effective remedy in a government body and compensation for damage, caused by a crime, etc.). When assessing the significance of the harm, it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and size of the material damage it suffered, the number of injured citizens, the severity of the physical, moral or property damage caused to them, etc.

Violation of the legitimate interests of citizens or organizations as a result of abuse of official powers or exceeding official powers should be understood, in particular, as the creation of obstacles in the satisfaction of citizens or organizations of their needs that do not contradict the norms of law and public morality (for example, the creation by an official of obstacles that limit the ability to choose in cases provided by law, at the discretion of the organization for cooperation).

19. In contrast to the responsibility provided for in Article 285 of the Criminal Code of the Russian Federation for committing actions (inaction) within one’s competence contrary to the interests of the service, responsibility for exceeding official powers (Article 286 of the Criminal Code of the Russian Federation) occurs if an official commits active actions that clearly go beyond the scope of his powers , which entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, if the official was aware that he was acting outside the powers vested in him.

Exceeding official powers can be expressed, for example, in the commission by an official in the performance of official duties of actions that:

relate to the powers of another official (superior or equal in status);

can be committed only in the presence of special circumstances specified in the law or regulations (for example, the use of weapons against a minor, if his actions did not create a real danger to the lives of other persons);

committed 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 has the right to commit under any circumstances.

Based on the disposition of Article 286 of the Criminal Code of the Russian Federation, the motive for the crime does not matter in order to qualify the act as abuse of authority.

20. When qualifying a person’s actions under paragraph “b” of Part 3 of Article 286 of the Criminal Code of the Russian Federation, courts should understand the use of weapons or special means as intentional actions related to the person’s use of the damaging properties of these objects, or their use for their intended purpose.

When delimiting abuse of power committed with the use of weapons or special means from lawful actions of officials, courts should take into account that the grounds, conditions and limits for the use of weapons or special means are defined in the relevant regulatory legal acts of the Russian Federation (for example, in Federal Law No. 3 April 1995 N 40-FZ “On the Federal Security Service”, Federal Law of February 6, 1997 N 27-FZ “On the Internal Troops of the Ministry of Internal Affairs of the Russian Federation”, Federal Law of May 27, 1996 N 57-FZ “On State Security”, Law of the Russian Federation of April 18, 1991 N 1026-1 “On the Police”).

Special means include rubber truncheons, handcuffs, tear gas, water cannons, armored vehicles, means of destroying obstacles, service dogs and other means used by internal affairs bodies, internal troops, federal state security agencies, federal security service agencies, and criminal-executive agencies. systems, etc.

21. Under grave consequences as a qualifying feature of a crime, provided for in Part 3 of Article 285 of the Criminal Code of the Russian Federation and paragraph “c” of Part 3 of Article 286 of the Criminal Code of the Russian Federation, one should understand the consequences of committing a crime in the form of major accidents and long-term stoppages of transport or production processes, other disruption of the organization’s activities , causing significant material damage, causing death by negligence, suicide or attempted suicide of the victim, etc.

22. When considering criminal cases of crimes under Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, the courts must find out which normative legal acts, as well as other documents, establish the rights and obligations of the accused official, citing them in the verdict and indicating the abuse of which of these rights and obligations or the excess of which of them is charged to him, with reference to specific norms (article, part, paragraph).

If the indictment or indictment does not contain the specified data, which is not possible to fill in at a court hearing, the criminal case is subject to return to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation in order to remove obstacles to its consideration by the court.

23. Courts should keep in mind that in accordance with paragraph “a” of Part 1 of Article 104.1 of the Criminal Code of the Russian Federation, money, valuables and other property received as a result of a crime under Article 285 of the Criminal Code of the Russian Federation, and any income from this property are subject to confiscation, for with the exception of property and income from it, subject to return to the rightful owner.

24. When establishing circumstances that contributed to the commission of crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, violations of the rights and freedoms of citizens, as well as other violations of the law committed during the investigation, preliminary investigation or when considering a criminal case by a lower court, recommend to the courts in accordance with Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation to issue specific rulings or resolutions, drawing the attention of relevant organizations and officials to these circumstances and facts of violations of the law, requiring the necessary measures to be taken to eliminate them.

25. In connection with the adoption of this resolution, the resolution of the Plenum of the Supreme Court of the USSR dated March 30, 1990 No. 4 “On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and official forgery."

Chairman of the Supreme Court of the Russian Federation

V. Lebedev

Secretary of the Plenum, judge of the Supreme Court of the Russian Federation

V. Doroshkov

Explanations of the Supreme Court

Legal experts believe that law enforcement agencies are too strict in small details, especially in cases involving the use of Article 330 of the Criminal Code. After one notable precedent, the Supreme Court had to explain to judges what punishment to apply to petty arbitrariness. In judicial reviews, the highest court is forced to constantly repeat how judges should get to the bottom of cases of arbitrary acts, how to recognize minor offenses that formally fall under a criminal offense. For clarity, an example was given of a citizen who found a cartridge, who, as a result of legal proceedings, was punished for illegal possession of ammunition. To solve the problem of distinguishing arbitrary actions from administrative misconduct, lawyers propose introducing clear signs of “significant damage” into the Criminal Code. In similar articles on encroachments on property, such clear boundaries are defined. The difference between arbitrariness and such articles is that the culprit restores his rights by force, without permission and bypassing the law.

How to distinguish an act under Art. 285 of the Criminal Code of the Russian Federation from other compounds

Abuse of official powers is often confused with abuse of official powers (Article 286 of the Criminal Code).

The difference between them is that in case of abuse, the employee acts within the framework of his official regulations, within the limits of his official duties. And if it is exceeded, the citizen arrogates to himself the powers of another official.

In addition, abuse of official position is often confused with negligence (Article 293 of the Criminal Code). But negligence occurs when a person, having an objective opportunity to perform his official duties, does nothing, and thereby damages the rights of others. For example, the investigator did not open a criminal case, and the criminal, remaining free, takes revenge on the victim and beats him.

Judicial practice in arbitrary cases

The accumulated experience in applying the article on arbitrariness shows that very often mistakes are made when qualifying arbitrary actions in courts and during preliminary investigations.

The main object of the crime under Article 330 is the interests of citizens or organizations that have suffered harm, as well as the legal procedure for the implementation of rights. The objective side of the norm considers unauthorized actions from the point of view of their legality when challenged by victims who have suffered harm.

In cases where local government bodies are involved, requiring the demolition of unauthorized buildings, one can also see signs of self-government. Local authorities are called upon to resolve issues of violation of building codes that pose a threat to the lives of citizens. Considering such cases from a certain perspective, and based on the consequences in the event of causing significant harm, self-construction can also be qualified under Article 330 of the Criminal Code.

Unauthorized illegal actions are varied, but often they concern the property side. For example, when actions to repay a debt are carried out in violation of the law. The material composition of arbitrariness is reflected in the disposition and indicates the significance of the harm caused. It is this feature that distinguishes it from an administrative offense under Article 19.1 of the Administrative Offenses. For example, the case of arbitrariness of municipal authorities looks remarkable. When filing a claim, the amount of damage was overestimated, which changed the qualification of the crime. The court found that at the time of the crime there was a decrease in the cadastral value of the land plot. Although the claim indicated the amount that appeared at the time of the transaction.

The subjective side of arbitrary crime considers exclusively intentional acts. The culprit is confident in possessing certain rights, is aware that these rights are being challenged by another and is trying to establish his rights through illegal actions. For example, a certain citizen enters the debtor’s apartment and takes away valuables that do not belong to him, believing that he has the right to do so.

Everything about criminal cases

Go to the articles of the Criminal Code in this area

Plenum of the Supreme Court of October 16, 2009 N 19

“On judicial practice in cases of abuse of official powers and abuse of official powers” (ed. 06/11/2020)

TABLE OF CONTENTS

Officials

— clause 2

Plenum No. 19, the concept of an official for Articles
285 of the Criminal Code
and
286 of the Criminal Code
PERFORMING THE FUNCTIONS of a government representative

— clause 3

Plenum No. 19 powers - in relation to persons who are not dependent on their official duties

ORGANIZATIONAL AND ADMINISTRATIVE functions

— clause 4

Plenum No. 19 powers - related to the leadership of the state. organization

— clause 4

Plenum No. 19 powers - to make decisions of legal significance

ADMINISTRATIVE AND ECONOMIC FUNCTIONS

— clause 5

Plenum No. 19 powers - to dispose of the organization’s property

— clause 5

Plenum No. 19 powers - for other actions related to material assets

EXECUTION OF THE FUNCTIONS OF AN OFFICIAL

— clause 6

Plenum No. 19 what is the performance of functions under special authority

— clause 6

Plenum No. 19 temporary performance of functions of an official

— clause 6

Plenum No. 19, in case of inconsistency with the position - still qualified under
285 of the Criminal Code
or
286 of the Criminal Code
MILITARY SERVANTS

Two types of officials

— clause 7

Plenum No. 19 bosses - according to official position

— clause 7

Plenum No. 19 commanders - by military rank

Subjects

— clause 8

Plenum No. 19 subjects of crime for
Part 1 285 of the Criminal Code
and
Part 1 286 of the Criminal Code
- paragraph 9

Plenum No. 19 subjects of crime for
Part 2 285 of the Criminal Code
or
Part 2 286 of the Criminal Code
- paragraph 10

Plenum No. 19 the head of local government is the subject of
Part 2 285 of the Criminal Code
or
Part 2 286 of the Criminal Code
ARTICLE 201 of the Criminal Code

— clause 11

Plenum No. 19 subjects of a crime under Article
201 of the Criminal Code
- paragraph 11

Plenum No. 19 who is considered to perform managerial functions in the comm. organizations

Features of initiating a case

— clause 12

Plenum No. 19 harm only to the organization - persecution at the request of the manager (
23 Code of Criminal Procedure
)

— clause 12

Plenum No. 19 harm to another organization - prosecution on general grounds

— clause 12

Plenum No. 19, the harm was caused by the leader himself - then with the consent of the management body

ARTICLE 200.4 CC

- clause 12.1

Plenum No. 19, qualification under
200.4 of the Criminal Code
requires a selfish motive

- clause 12.1

Plenum No. 19 other personal interest: mutual favor, promotion

- P.12.1

Plenum No. 19 in the verdict is required to indicate in detail what the interest is

Urgent necessity

— clause 13

Plenum No. 19 extreme necessity under Articles
285 of the Criminal Code
-
286 of the Criminal Code
Criminal order

- paragraph 14

Plenum No. 19 criminal order under Articles
285 of the Criminal Code
-
286 of the Criminal Code
ARTICLE 285 of the Criminal Code

- paragraph 15

Plenum No. 19 what is the use of official powers contrary to the interests of the service

- paragraph 16

Plenum No. 19 what is selfish interest

- paragraph 16

Plenum No. 19 what is other personal interest

- paragraph 16

Plenum No. 19 protectionism, patronage in service

Theft

- paragraph 17

Plenum No. 19, theft of someone else’s property is qualified under
Part 3 159 of the Criminal Code
or
Part 3 160 of the
Criminal Code. Official forgery

- paragraph 17

Plenum No. 19 differentiation of elements
285 of the Criminal Code
(abuse) and
292 of the Criminal Code
(forgery)

VIOLATED RIGHTS

Specification of rights

- paragraph 18

Plenum No. 19 in the verdict under
285 of the Criminal Code
and
286 of the Criminal Code
indicates what specific rights were violated

Materiality of rights

- paragraph 18

Plenum No. 19 what is meant by a significant violation of rights for
285 of the Criminal Code
and
286 of the Criminal Code
- clause 18

Plenum No. 19 assessment of materiality - what is taken into account

Rights and responsibilities that have been abused

- paragraph 22

Plenum No. 19 in the verdict under
285 of the Criminal Code
and
286 of the Criminal Code
indicates what rights were abused

ARTICLE 286 CC

- paragraph 19

Plenum No. 19, the difference between
285 of the Criminal Code
(abuse) and
286 of the Criminal Code
(excess of authority)

- paragraph 19

Plenum No. 19 specific examples of abuse of power

Motive

- paragraph 19

Plenum No. 19 for qualification under
286 of the Criminal Code,
motive - does not matter

Weapon

- paragraph 20

Plenum No. 19, the use of weapons and qualifications according to
paragraph 6, part 3, 286 of the Criminal Code
- paragraph 20

Plenum No. 19, the legality of the use of weapons is determined according to special norms

Dire consequences

- paragraph 21

Plenum No. 19, which constitutes grave consequences under
part 3 285
,
clause “b” part 2 285.
and
clause “c” part 3 286 of the Criminal Code
Confiscation

- paragraph 23

Plenum No. 19 confiscation under articles
285 of the Criminal Code
and
285.4 of the Criminal Code

1) Draw the attention of the courts to the focus of criminal liability for crimes against the interests of the public service to ensure the protection of citizens from corruption and other socially dangerous acts committed by officials in the service. Persons who abuse official powers or exceed their official powers encroach on the activities of state bodies, local government bodies, state and municipal institutions, state corporations, state companies, 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, the Armed Forces of the Russian Federation, other troops, military formations of the Russian Federation and bodies, as a result of which the rights and legitimate interests of citizens or organizations or the legally protected interests of society and the state are significantly violated.

2) Courts when considering criminal cases of abuse of power ( 285 CC

) and abuse of official powers (
286 of the Criminal Code
), it is necessary to establish whether the defendant is the subject of these crimes - an official.
It should be assumed that, in accordance with approx.
1 to 285 of the Criminal Code the following persons are recognized as officials:

- permanently, temporarily

or, by
special authority,
performing
the functions of a
government representative;

- or performing organizational and administrative tasks

,
administrative and economic
functions in state bodies, local governments, state and municipal institutions, state corporations, as well as in state companies, state and municipal unitary enterprises, joint-stock companies in which a controlling stake belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities , as well as in the Armed Forces of the Russian Federation, other troops, military formations of the Russian Federation and bodies.

ACTING FUNCTIONS OF AUTHORITY RESPECTIVES

3) Acting functions of a government representative should include:

— persons vested with the rights and responsibilities to exercise the functions of legislative, executive or judicial authorities;

- and also, based on the content of the note to 318 of the Criminal Code

, other persons of law enforcement or regulatory authorities, vested in the manner prescribed by law with administrative powers in relation to persons who are not officially dependent on them, or the right to make decisions binding on citizens, organizations, institutions, regardless of their departmental affiliation and forms of ownership.

ORGANIZATIONAL AND ADMINISTRATIVE functions

4) Organizational and administrative functions should be understood as the powers of an official, which are related to:

— with the leadership of the labor collective of a state body, state or municipal institution (its structural unit) or individual employees subordinate to them;

— with the formation of personnel and determination of the labor functions of employees;

— with the organization of the procedure for serving, the application of incentives or rewards, the imposition of disciplinary sanctions, etc.

ADMINISTRATIVE AND ECONOMIC FUNCTIONS

5) How administrative and economic functions should be considered the powers of an official:

— for the management and disposal of property and (or) funds on the balance sheet and (or) bank accounts of organizations, institutions, military units and subdivisions;

- as well as to perform other actions (for example, making decisions on the calculation of wages, bonuses, monitoring the movement of material assets, determining the procedure for their storage, accounting and control over their expenditure).

EXECUTION OF THE FUNCTIONS OF AN OFFICIAL

6) Exercising the functions of an official under special authority means that the person:

- acts as a representative

authorities;

- performs organizational and administrative tasks

;

- or performs administrative and economic duties

functions;

assigned to him by law, other regulatory legal act, order or instruction of a superior official or an authorized body or official (for example, the functions of a juror).

The functions of an official under special authority can be performed for a certain time or once, and can also be combined with the main job.

MILITARY SERVICEMEN

7) In the Armed Forces of the Russian Federation, other troops, military (special) formations and bodies performing functions to ensure the defense and security of the state, officials who permanently, temporarily or by special authority perform organizational, administrative and (or) administrative and economic functions, may be:

— superiors by official position;

- and (or) military rank.

Chiefs by official position are persons to whom military personnel are subordinate in service. These should include:

- persons holding relevant military positions according to the state (for example, commander of a squad, company, head of the regiment's clothing service);

- persons temporarily performing duties in the relevant military position, as well as temporarily performing the functions of an official under special authority.

Civilian personnel are superiors to subordinate military personnel in accordance with their regular positions.

Subject of crimes provided for in Part 1 285 of the Criminal Code

and
Part 1 286 of the Criminal Code
, is a person performing
the functions of a government representative
, performing
organizational and administrative
and/or
administrative
functions in a state body, local government body, state and municipal institution, state corporation, state company, state and municipal unitary an enterprise, a joint-stock company, a controlling stake in which belongs to the Russian Federation, a constituent entity of the Russian Federation or a municipal entity, as well as in the Armed Forces of the Russian Federation, other troops, military formations of the Russian Federation and bodies, not holding a public position in the Russian Federation or a public position in the constituent entities Russian Federation.

9) When deciding on the subject of the crime provided for in Part 2 285 of the Criminal Code

or
Part 2 286 of the Criminal Code
, courts should proceed from
approx.
2 and
3
to 285 of the Criminal Code, according to which persons holding public positions of the Russian Federation are understood to be persons holding public positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of federal state bodies (
note 2
to 285 of the Criminal Code), and under persons holding public positions in the constituent entities of the Russian Federation - persons holding positions established by the constitutions, charters or laws of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies of the constituent entities of the Russian Federation of the Russian Federation (
note 3
to 285 of the Criminal Code). The consolidated list of government positions in the Russian Federation was approved by Decree of the President of the Russian Federation of January 11, 1995 N 32 (as amended on May 15, 2022); the list of typical government positions in the constituent entities of the Russian Federation was approved by Decree of the President of the Russian Federation of December 4, 2009 N 1381 (as amended on October 5, 2015).

10) Along with a person holding a government position in the Russian Federation or a government position in a constituent entity of the Russian Federation, a subject of liability under Part 2 285 of the Criminal Code

and
Part 2 286 of the Criminal Code
is the head of the local government body, which should be understood only as the head of the municipal formation - the highest official of the municipal formation, endowed by the charter of the municipal formation with its own powers to resolve issues of local importance (36 Federal Law of October 6, 2003 N 131- Federal Law “On the general principles of organizing local self-government in the Russian Federation”).

ARTICLE 201 of the Criminal Code (abuse of powers in a commercial organization)

Url Additional information:

— 23 Code of Criminal Procedure

persecution at the request of comm. organizations

11) Courts should limit the criminal actions of officials

from the actions of other persons performing
managerial functions
in a commercial or other organization, whose liability for abuse of their powers is established by
201 of the Criminal Code
.

The subjects of this crime 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 the Russian Federation, constituent entities of the Russian Federation or municipalities, and also 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.

Persons performing management functions in a commercial or other organization include:

— persons performing the functions of the sole executive body, member of the board of directors or other collegial executive body:

- as well as persons, permanently, temporarily or on special

authority to perform
organizational and administrative
or
administrative
functions in these organizations (for example, director, general director, member of the board of a joint stock company, chairman of a production or consumer cooperative, head of a public association, religious organization).

if this act entailed causing significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state.

12) If, as a result of abuse of power by a person performing managerial functions in a commercial or other organization, harm is caused to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise or an organization with participation in the authorized (share) capital (share fund) of the state or municipal education, criminal prosecution is carried out at the request of the head of this organization or with his consent ( 23 Code of Criminal Procedure

In case of harm to the interests of other organizations (for example, a non-profit organization, state or municipal enterprise), as well as the interests of citizens, society or the state, criminal prosecution for abuse of power in a commercial or other organization is carried out on a general basis.

ARTICLE 200.4 of the Criminal Code (abuses in public procurement)

12.1) Abuses in the procurement of goods, works, services to meet state or municipal needs, as a result of which large damage is caused, entail criminal liability under Article 200.4 of the Criminal Code

contract service employees, contract managers, members of the procurement commission, persons accepting goods supplied, work performed or services rendered, or other authorized persons representing the interests of the customer who are not officials or persons performing management functions in a commercial or other organization , if the act was committed by them intentionally out of selfish or other personal interest.

Taking this into account, in cases of this category, courts should 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, in addition to guilt

The motive
also applies .

Within the meaning of the law, other personal interest in the commission of an act provided for in Article 200.4 of the Criminal Code

, 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 themselves or other persons, including6

— receive mutual favors;

— enlist support in resolving any issue, for example, in finding employment or promoting a relative.

Also may be considered 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, to receive promotion, state or other award, to occupy higher position, etc.

At the same time, the court, when establishing the motive of selfish or other personal interest, should not limit itself to reference to the relevant feature, but is obliged to carefully clarify all the factual circumstances of the case and provide in the descriptive and motivational part of the verdict the evidence that served as the basis for the conclusion about the presence of the specified feature in the crime.

13) In cases where an act containing signs of abuse of power ( 285 CC

) or abuse of power (
286 of the Criminal Code
), committed by an official to eliminate a danger that directly threatens the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means, then such an act cannot be considered criminal, provided that the limits of extreme necessity were not exceeded (
Article 39 of the Criminal Code
).

Url Additional information:

- Part 1 42 of the Criminal Code

execution of an order excludes liability

14) The acts of an official related to the use of official powers, resulting in harm to interests protected by criminal law, cannot be recognized as criminal if they were committed in pursuance of an order or instruction that is obligatory for him ( 42 of the Criminal Code

Url Additional information:

- Part 2 42 of the Criminal Code

execution of a knowingly illegal act: does not exempt

An official who committed an intentional crime under Article 285 of the Criminal Code

or
286 of the Criminal Code
, in pursuance of an order or instruction that is known to him to be illegal, bears criminal liability on a general basis.

Url Additional information:

- Part 1 42 of the Criminal Code

the person who issued the criminal order is responsible

In this case, the actions of a superior official who issued such an order or instruction should be considered, if there are grounds for it, as incitement

to commit a crime or
organize
this crime and qualify it under the relevant article
of the Special Part
of the Criminal Code with reference to
Part 3
or
Part 4 of 33 of the Criminal Code
.

ARTICLE 285 of the Criminal Code (abuse of official powers)

15) Under the use by an official of his official powers contrary to the interests of the service ( 285 Criminal Code

) courts should understand the commission of such acts that, although they were directly related to the exercise by an official of his rights and duties, were not caused by official necessity and objectively contradicted both the general tasks and requirements for the state apparatus and the apparatus of local self-government bodies, and those goals and objectives for the achievement of which the official was vested with the appropriate official powers.

In particular, the actions of an official who, out of selfish or other personal interest, performs actions within the scope of his official powers in the absence of mandatory conditions or grounds for their commission, should be qualified as abuse of official powers, for example:

— issuing a driver’s license to persons who have not passed the mandatory exam;

— hiring persons who do not actually perform job duties;

— release by commanders (chiefs) of subordinates from the performance of their official duties with assignment to work in commercial organizations or arrangement of the official’s personal household.

Liability under Article 285 of the Criminal Code

also applies to the intentional failure of an official to fulfill his duties in the event that such inaction was committed out of selfish or other personal interest, objectively contradicted the goals and objectives for which the official was vested with the appropriate official powers, and entailed a significant violation of the rights and legal interests of citizens or organizations or legally protected interests of society and the state.

16) When deciding whether the actions (inaction) of the defendant constitute a crime under Article 285 of the Criminal Code

, the signs of the subjective side of this crime, in addition to intent, should be understood as follows:

- selfish interest - the desire of an official, by committing unlawful actions, to obtain for himself or other persons a benefit of a property nature, not related to the illegal gratuitous circulation of property in his favor or in the benefit of others (for example, illegal receipt of benefits, credit, exemption from any property expenses, return of property, repayment of debt, payment of services, payment of taxes, etc.);

- other personal interest: the desire of an official to benefit from a non-property nature, due to such motives as careerism, nepotism, the desire to embellish the actual situation, receive a mutual favor, enlist support in resolving any issue, hide one’s incompetence, etc.

How an official’s use of his official powers contrary to the interests of the service should be considered:

- protectionism, which refers to the illegal provision of assistance in employment, promotion, or encouragement of a subordinate;

- as well as other patronage in the service

committed out of selfish or other personal interest.

17) In contrast to the theft of someone else’s property using official position, abuse of official powers out of selfish interest consists of such acts of an official that are either not related to the seizure of someone else’s property (for example, receiving property benefits from using property for other purposes), or are related to temporary and (or) compensated seizure of property.

If an official’s use of his official powers resulted in the theft of someone else’s property, when it was actually confiscated, the act is fully covered by Part 3 of 159 of the Criminal Code

or
Part 3 160 of the Criminal Code
and does not require additional qualifications under
285 of the Criminal Code
.

Likewise, based on the provisions of Article 17 of the Criminal Code

, the issue related to the legal assessment of the actions of the official who committed official forgery must be resolved.
In cases where such a person, in connection with the performance of his official duties, has introduced knowingly false information or corrections into official documents that distort their actual content, the act must be qualified under Article 292 of the Criminal Code
.
If, along with committing actions entailing criminal liability under Article 285 of the Criminal Code
, they commit official forgery, then the act must be qualified in conjunction with
Article 292 of the Criminal Code
.

VIOLATED RIGHTS

Url Additional information:

Case No. 44у-30/2019

Example

- termination of the case under
Article 286 of the Criminal Code
, due to insignificance (
Part 2 14 of the Criminal Code
)

18) In cases of abuse of power and exceeding official powers, the courts must, along with other circumstances of the case, clarify and indicate in the verdict:

— what exact rights and legitimate interests of citizens or organizations or legally protected interests of society or the state were violated,

- and whether the harm caused to these rights and interests is in a causal connection with the official’s violation of his official powers.

Url Additional information:

- paragraph 36

Plenum No. 24, taking into account official status when assigning punishment

- the right to respect for the honor and dignity of the individual,

- personal and family life of citizens,

- the right to inviolability of home and privacy of correspondence, telephone conversations, postal, telegraph and other messages,

— as well as the rights to judicial protection and access to justice,

— including the right to an effective remedy in a government agency and compensation for damage caused by a crime, etc.

When assessing the significance of harm, it is necessary to take into account:

- the degree of negative impact of the unlawful act on the normal operation of the organization,

- the nature and extent of the material damage suffered by it,

- number of injured citizens,

- the severity of the physical, moral or property damage caused to him, etc.

ARTICLE 286 of the Criminal Code (exceeding official powers)

19) In contrast to that provided for in Article 285 of the Criminal Code

responsibility for committing actions (inaction) within one’s competence contrary to the interests of the service; responsibility for exceeding official powers (
286 of the Criminal Code
) occurs if an official commits active actions that clearly go beyond the scope of his powers, which entail a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, if the official was aware that he was acting beyond the powers vested in him.

Exceeding official powers can be expressed, for example, in the commission by an official in the performance of official duties of actions that:

- which relate to the powers of another official (superior or equal in status);

- which can be committed only in the presence of special circumstances specified in the law or regulations (for example, the use of weapons against a minor, if his actions did not create a real danger to the lives of other persons);

- committed 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;

- which no one has the right to do under any circumstances.

Based on disposition 286 of the Criminal Code

To qualify the act as abuse of power, the motive of the crime does not matter.

When qualifying a person’s actions under clause “b”, part 3 of 286 of the Criminal Code

Courts understand the use of weapons or special means as deliberate actions related to the use by a person of the damaging properties of these objects, or their use for their intended purpose.

When delimiting abuse of power committed with the use of weapons or special means from lawful actions of officials, courts should take into account that the grounds, conditions and limits for the use of weapons or special means are defined in the relevant regulatory legal acts of the Russian Federation (for example, in Federal Law No. 3 April 1995 N 40-FZ “On the Federal Security Service”, Federal Law dated July 3, 2016 N 226-FZ “On the National Guard Troops of the Russian Federation”, Federal Law dated May 27, 1996 N 57-FZ “On state security", Federal Law of February 7, 2011 N 3-FZ "On the Police", Federal Law of October 1, 2022 N 328-FZ "On service in the compulsory enforcement bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation ")

21) Under grave consequences as a qualifying sign of a crime provided for in Part 3 285 of the Criminal Code

,
clause "b" part 2 285.4 of the Criminal Code
and
clause "c" part 3 286 of the Criminal Code
, one should understand the consequences of committing a crime in the form of:

— major accidents and long-term shutdowns of transport or production processes;

— other violation of the organization’s activities,

— causing significant material damage;

- causing death by negligence;

- suicide or attempted suicide of the victim, etc.

22) When considering criminal cases of crimes provided for in Article 285 of the Criminal Code

or
286 of the Criminal Code
, the courts must find out which normative legal acts, as well as other documents, establish the rights and obligations of the accused official, citing them in the verdict, and indicate the abuse of which of these rights and obligations or the excess of which of them is charged with him , with reference to specific norms (article, part, paragraph).

In the absence of an indictment

or
the indictment of
the specified data, which is not possible to complete in a court hearing, the criminal case is subject to return to the prosecutor in accordance with Article
237 of the Code of Criminal Procedure
to remove obstacles to its consideration by the court.

23) Courts should keep in mind that in accordance with paragraph "a" part 1 104.1 of the Criminal Code

money, valuables and other property received as a result of crimes provided for in Articles
285 of the Criminal Code
and
285.4 of the Criminal Code
; any income from this property is subject to confiscation, with the exception of property and income from it that is subject to return to the rightful owner.

24) When establishing circumstances that contributed to the commission of crimes provided for in Article 285 of the Criminal Code

and
286 of the Criminal Code
, violations of the rights and freedoms of citizens, as well as other violations of the law committed during the investigation, preliminary investigation or during the consideration of a criminal case by a lower court, recommend that the courts, in accordance with
Part 4 29 of the Code of Criminal Procedure
, issue private rulings or decisions, paying attention to the relevant organizations and officials to these circumstances and facts of violations of the law, requiring the necessary measures to be taken to eliminate them.

Return to articles of the Criminal Code in this area
Seek advice

Adviсe

Where can you complain about an official for arbitrariness? First of all, you need to contact a higher profile structure. For example, a complaint against a school director is sent to the Ministry of Education and Science. If the application is ignored or there is no due process, the complaint is sent to the Prosecutor's Office. Based on Article 10 of the Federal Law, the prosecutor's office is obliged to consider complaints and appeals from citizens about violations of the law.

How to consider a demand for repayment of a debt - arbitrariness, extortion or actions are considered lawful? When studying judicial practice, there is a tendency when the preliminary investigation determines the claim against the debtor under Art. 163 of the Criminal Code, then the court changes the qualification to arbitrariness or something else.

Debt repayment cases acquire a criminal nature in the case of interconnected unauthorized criminal actions:

- In a situation of illegal demand against the debtor. — When transferring someone else’s property or right. — In case of threats of violence or damage to other people’s property.

To qualify a crime under Art. 330 - arbitrariness, you will have to prove all the signs of committing arbitrary actions. The material side of the crime must be examined. The victim suffered significant harm, in a word, direct real damage. The offender committed the actions intentionally.

1.
Appeal decision No. 22-254/2018 dated February 27, 2022 in case No. 22-254/2018

Kaliningrad Regional Court (Kaliningrad Region) – Criminal

...the decision was legal and justified, the court FOUND: Kalachev D.A. convicted: - by the verdict of the Gvardeysky District Court of the Kaliningrad Region of August 14, 2008 under Part 2 of Art. 330 of the Criminal Code of the Russian Federation to 3 years 6 months of imprisonment using Art. 73 of the Criminal Code of the Russian Federation conditionally with a probationary period of 4 years; - by the verdict of the Moscow District Court of Kaliningrad...

2.
Appeal decision No. 22-1267/2018 dated February 27, 2018 in case No. 22-1267/2018
Moscow Regional Court (Moscow Region) – Criminal
...region from which GLAZKOV BORIS P.ICH, year of birth, native, citizen of the Russian Federation, not previously convicted, was convicted: under Art. 330 part 1 of the Criminal Code of the Russian Federation to 9 months of correctional labor with the deduction of 10% of wages; according to Art. 330 part 1 of the Criminal Code of the Russian Federation to 9 months of correctional labor...
3.
Appeal decision No. 22-284/2018 dated February 27, 2022 in case No. 22-284/2018
Supreme Court of the Udmurt Republic (Udmurt Republic) – Criminal
...motivated by the fact that he had the key to the construction trailer, there was a trusting relationship between him and the victim, therefore his actions should be qualified under Art. 330 of the Criminal Code of the Russian Federation or Part 1 of Art.

Russian logistics

Persons who abuse official powers or exceed their official powers encroach on the activities of state bodies, local government bodies, state and municipal institutions, state corporations, the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, regulated by regulatory legal acts, resulting in significant the rights and legitimate interests of citizens or organizations or the interests of society and the state protected by law are violated. 2. When considering criminal cases of abuse of power (Article 285 of the Criminal Code of the Russian Federation) and abuse of official powers (Article 286 of the Criminal Code of the Russian Federation), the courts must establish whether the defendant is the subject of these crimes - an official. In this case, one should proceed from the fact that in accordance with paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation, officials are recognized as persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, economic functions in state bodies, local bodies self-government, state and municipal institutions, state corporations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

Chiefs by official position are persons to whom military personnel are subordinate in service. These should include:

persons holding relevant military positions according to the state (for example, commander of a squad, company, head of the regiment's clothing service);

persons temporarily performing duties in the relevant military position, as well as temporarily performing the functions of an official under special authority.

Civilian personnel are superiors to subordinate military personnel in accordance with their regular positions.

Exceeding official powers can be expressed, for example, in the commission by an official in the performance of official duties of actions that:

relate to the powers of another official (superior or equal in status);

committed 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 has the right to commit under any circumstances.

Based on the disposition of Article 286 of the Criminal Code of the Russian Federation, the motive for the crime does not matter in order to qualify the act as abuse of authority.

22. When considering criminal cases of crimes under Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, the courts must find out which regulatory legal acts, as well as other documents, establish the rights and obligations of the accused official, citing them in the verdict, and indicate abuse of which of these rights and obligations or excess of which of them is charged to him, with reference to specific norms (article, part, paragraph).

25. In connection with the adoption of this Resolution, the Resolution of the Plenum of the Supreme Court of the USSR dated March 30, 1990 No. 4 “On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and official forgery."

Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. DOROSHKOV

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

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... imprisonment for a term of 20 days, serving the sentence in a penal colony; On June 29, 2016, he was released after serving his sentence; convicted: under Part 2 of Art. 330 of the Criminal Code of the Russian Federation to punishment in the form of imprisonment for a period of 9 months. In accordance with Article 73 of the Criminal Code of the Russian Federation, the sentence imposed was decided to be considered suspended, with a probationary period...

New edition of Art. 330 of the Criminal Code of the Russian Federation

1. Arbitrariness, that is, unauthorized, contrary to the procedure established by law or other normative legal act, the commission of any actions, the legality of which is disputed by an organization or a citizen, if such actions caused significant harm, -

shall be 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 by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by arrest for a term of up to six months.

2. The same act, committed with the use of violence or with the threat of its use, -

shall be punishable by forced labor for a term of up to five years, or arrest for a term of up to six months, or imprisonment for a term of up to five years.

PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

DECISION of October 16, 2009 N 19

ON JUDICIAL PRACTICE IN CASES OF ABUSE OF OFFICIAL POWERS AND EXCESS OF OFFICIAL POWERS

(as amended by Resolutions of the Plenum of the Supreme Court of the Russian Federation dated December 24, 2019 No. 59, dated June 11, 2020 No. 7)

In connection with the issues arising from the courts in cases of abuse of official powers and exceeding official powers, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, decides:

1. Draw the attention of the courts to the focus of criminal liability for crimes against the interests of the public service to ensure the protection of citizens from corruption and other socially dangerous acts committed by officials. Persons who abuse official powers or exceed their official powers encroach on the activities of state bodies, local government bodies, state and municipal institutions, state corporations, state companies, 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, the Armed Forces of the Russian Federation, other troops, military formations of the Russian Federation and bodies, as a result of which the rights and legitimate interests of citizens or organizations or the legally protected interests of society and the state are significantly violated.

2. When considering criminal cases of abuse of power (Article 285 of the Criminal Code of the Russian Federation) and abuse of official powers (Article 286 of the Criminal Code of the Russian Federation), the courts must establish whether the defendant is the subject of these crimes - an official. In this case, one should proceed from the fact that in accordance with paragraph 1 of the notes to Article 285 of the Criminal Code of the Russian Federation, officials are recognized as persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, economic functions in state bodies, local bodies self-government, state and municipal institutions, state corporations, state companies, state and municipal unitary enterprises, joint-stock companies in which a controlling stake belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as in the Armed Forces of the Russian Federation, other troops, military formations Russian Federation and authorities.

Chiefs by official position are persons to whom military personnel are subordinate in service. These should include:

persons holding relevant military positions according to the state (for example, commander of a squad, company, head of the regiment's clothing service);

persons temporarily performing duties in the relevant military position, as well as temporarily performing the functions of an official under special authority.

Civilian personnel are superiors to subordinate military personnel in accordance with their regular positions.

8. The subject of the crimes provided for in Part 1 of Article 285 of the Criminal Code of the Russian Federation and Part 1 of Article 286 of the Criminal Code of the Russian Federation is a person performing the functions of a representative of the government, performing organizational and administrative and/or administrative functions in a state body, local government body, state and a municipal institution, a state corporation, a state company, a state and municipal unitary enterprise, a joint stock company, a controlling stake in which belongs to the Russian Federation, a constituent entity of the Russian Federation or a municipal entity, as well as in the Armed Forces of the Russian Federation, other troops, military formations of the Russian Federation and bodies who does not hold a government position in the Russian Federation or a government position in the constituent entities of the Russian Federation.

9. When deciding on the subject of the crime provided for by part 2 of Article 285 of the Criminal Code of the Russian Federation or part 2 of Article 286 of the Criminal Code of the Russian Federation, the courts should proceed from paragraphs 2 and 3 of the notes to Article 285 of the Criminal Code of the Russian Federation, according to which persons holding public positions in the Russian Federation, are understood to be persons holding public positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of federal state bodies (paragraph 2 of the notes), and persons holding public positions of the constituent entities of the Russian Federation are persons holding positions established by the constitutions , charters or laws of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies of the constituent entities of the Russian Federation (paragraph 3 of the notes). The consolidated list of government positions in the Russian Federation was approved by Decree of the President of the Russian Federation of January 11, 1995 N 32 (as amended on May 15, 2022); the list of typical government positions in the constituent entities of the Russian Federation was approved by Decree of the President of the Russian Federation of December 4, 2009 N 1381 (as amended on October 5, 2015).

12. If, as a result of abuse of power by a person performing managerial functions in a commercial or other organization, harm is caused to the interests of an exclusively commercial or other organization that is not a state or municipal enterprise or an organization with participation in the authorized (share) capital (share fund) of the state or municipal education, criminal prosecution is carried out at the request of the head of this organization or with his consent (Article 23 of the Code of Criminal Procedure of the Russian Federation). In case of harm to the interests of other organizations (for example, a non-profit organization, state or municipal enterprise), as well as the interests of citizens, society or the state, criminal prosecution for abuse of power in a commercial or other organization is carried out on a general basis.

12.1. Abuses in the sphere of procurement of goods, works, services to meet state or municipal needs, as a result of which large damage is caused, entail criminal liability under Article 200.4 of the Criminal Code of the Russian Federation for contract service employees, contract managers, members of the procurement commission, persons accepting delivered goods , work performed or services provided, or other authorized persons representing the interests of the customer who are not officials or persons performing managerial functions in a commercial or other organization, if the act was committed by them intentionally out of selfish or other personal interest.

Within the meaning of the law, another personal interest in the commission of 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 benefit of a non-property nature 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.

Exceeding official powers can be expressed, for example, in the commission by an official in the performance of official duties of actions that:

relate to the powers of another official (superior or equal in status);

committed 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 has the right to commit under any circumstances.

Based on the disposition of Article 286 of the Criminal Code of the Russian Federation, the motive for the crime does not matter in order to qualify the act as abuse of authority.

When delimiting abuse of power committed with the use of weapons or special means from lawful actions of officials, courts should take into account that the grounds, conditions and limits for the use of weapons or special means are defined in the relevant regulatory legal acts of the Russian Federation (for example, in Federal Law No. 3 April 1995 N 40-FZ “On the Federal Security Service”, Federal Law dated July 3, 2016 N 226-FZ “On the National Guard Troops of the Russian Federation”, Federal Law dated May 27, 1996 N 57-FZ “On state security", Federal Law of February 7, 2011 N 3-FZ "On the Police", Federal Law of October 1, 2022 N 328-FZ "On service in the compulsory enforcement bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation ").

Special means include special sticks, means of restricting mobility and restricting movement, special gas means, water cannons, armored vehicles, means of destroying barriers, service animals and other means in service with internal affairs bodies, national guard troops, federal state security agencies, federal security services, penal system authorities, etc.

21. Under grave consequences as a qualifying feature of a crime provided for in Part 3 of Article 285, paragraph “b” of Part 2 of Article 285.4 and paragraph “c” of Part 3 of Article 286 of the Criminal Code of the Russian Federation, one should understand the consequences of committing a crime in the form of major accidents and long-term stoppages of transport or production process, other disruption of the organization’s activities, causing significant material damage, causing death by negligence, suicide or attempted suicide of the victim, etc.

22. When considering criminal cases of crimes under Article 285 of the Criminal Code of the Russian Federation or Article 286 of the Criminal Code of the Russian Federation, the courts must find out which regulatory legal acts, as well as other documents, establish the rights and obligations of the accused official, citing them in the verdict, and indicate abuse of which of these rights and obligations or excess of which of them is charged to him, with reference to specific norms (article, part, paragraph).

23. Courts should keep in mind that in accordance with paragraph “a” of Part 1 of Article 104.1 of the Criminal Code of the Russian Federation, money, valuables and other property obtained as a result of crimes provided for in Articles 285 and 285.4 of the Criminal Code of the Russian Federation, and any income from this property are subject to confiscation , with the exception of property and income from it, subject to return to the rightful owner.

Chairman of the Supreme Court of the Russian Federation V.M. LEBEDEV

Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V.V. DOROSHKOV

Commentary on Article 330 of the Criminal Code of the Russian Federation

1. The main object of a criminal attack is the procedure established by law for a citizen to exercise his rights. An additional object is the legal rights and interests of citizens or legal entities.

2. The objective side of arbitrariness is characterized by the following features.

Firstly, a person exercises his actual or alleged and non-existent right. The implementation of a valid right presupposes the exercise by a person of the power that he actually has, but in violation of the procedures for its implementation. The implementation of an alleged right is characterized by the exercise of a power that a person does not actually have, provided that he is firmly convinced of the opposite.

Secondly, a mandatory sign of an objective party is the infliction of significant harm to an organization or a citizen. The concept of significant harm as a mandatory consequence of arbitrariness is evaluative.

What investigators must prove in case of abuse of power

Investigators must prove the existence of a crime, namely:

Object (interests of service, society and state)
Subject (official)

Objective side (illegal acts using one’s official powers must necessarily lead to a significant violation of the rights and legitimate interests of citizens, society or the state)

Subjective side (deliberate form of guilt, presence of selfish or other personal motives)

The subject of a crime can be officials, who understand:

persons performing the functions of government representatives,
persons performing organizational-managerial or administrative-economic functions in state and municipal bodies, state and municipal institutions, state extra-budgetary funds, state corporations, state-owned companies, in the Armed Forces of the Russian Federation.

And the act will be completed when the rights and legitimate interests of other persons are significantly violated.

So investigators must prove that

the person has any authority,
he used them contrary to the interests of the service,
the criminal act caused damage to the rights of citizens, society, the state,
the suspect had the intent to commit a crime, as well as selfish or other personal motives.

What is the punishment for arbitrariness under the Criminal Code in Russia?

The recognition of harm as significant primarily depends on the assessment of the significance of the damage by the injured individual or the damaged legal entity, on their actual property or financial status, as well as on the judicial practice that had developed at the time of the commission of the crime in the relevant category of cases. Significant harm can be recognized when significant material damage is caused, a violation of the constitutional rights of citizens to freedom of movement, use of living space, etc., in other words, the question of whether the harm is significant is determined each time by the court based on the specific circumstances of the case.

Thirdly, the legality of the actions of the perpetrator must be challenged by the victims. Challenging can be carried out in judicial, administrative and other government bodies in compliance with legal procedures or outside such procedures.

Challenging should be understood as an announcement in one form or another by an interested person (organization) of a violation of his (someone else’s) actual or alleged right by an arbitrary act (an application or complaint filed with a court, prosecutor’s office, police department or other body, designed to ensure the protection of the applicant’s rights and other established forms for declaring one's rights).

3. The crime is completed (by the elements set out in Part 1) at the moment of causing significant harm.

4. The subjective side of arbitrariness, responsibility for which is established in part 1 of the commentary. article, is characterized by direct intent in relation to unauthorized actions and direct or indirect intent in relation to causing significant harm.

5. A mandatory sign of arbitrariness is arbitrariness: the perpetrator realizes that he is acting without the permission (sanction) of the person (persons) whose right the act violates.

6. General subject - a sane individual who has reached the age of 16. This is what distinguishes the subject of this encroachment from similar officials or persons using their official powers, usurping powers or performing managerial functions in commercial or other public organizations (Articles 285, 286, 288 and 201, respectively).

7. Part 2 comments. Article provides for the commission of a qualified type of arbitrariness. The qualifying feature is the method of committing arbitrariness - the use of violence or the threat of its use. In this case, violence should be understood as any physical violence that does not cause serious harm to human health. Intentional infliction of moderate harm to health, minor harm to health, beatings, torture, threat of murder or infliction of grievous harm to health are covered by the disposition of Part 2 of the comment. articles and additional qualifications are not required. Causing death or serious harm to health goes beyond the scope of Part 2 of Art. 330 and requires additional qualifications under Art. 105 and 111. When unauthorized actions form signs of independent elements of other crimes (violation of the inviolability of the home, unlawful taking of a car or other vehicle without the purpose of theft, refusal to provide a citizen with information, etc.), then they are qualified under the relevant articles of the Criminal Code, providing Criminal Code for these crimes.

8. Disposition of Part 1 of Art. 163 defines the object as property that is alien to the person causing harm. In relation to this property, the tortfeasor should not have all the powers of the owner or should significantly exceed the powers of the owner that he has (arising on the basis of law or contract), thereby violating the norm of criminal law. Therefore, the demand of the owner or a person authorized by him to return property (money) or the right to property that belongs to him or to perform other actions of a property nature under various types of threats or with the use of violence cannot be qualified as extortion and should be regarded (if there are legal grounds for this) as arbitrariness, threat of murder or infliction of grievous bodily harm and, in the event of their infliction, as infliction of harm to health in accordance with the severity of the consequences, as well as the intentional destruction or damage of someone else’s property.

9. In the event of a creditor’s demand (involved with various threats or violence) to return property belonging to him (or a person authorized by him), etc., as well as interest on the amount of debt and compensation for damage caused (including lost profits and moral damage), if this amount is documented for the amount of the claim; the actions of the creditor do not constitute extortion, and they can be qualified as arbitrariness.

10. Actions enshrined in part 1 of the comment. Articles belong to the category of crimes of minor gravity, in Part 2 - of medium gravity.

The Plenum of the Supreme Court specified resolutions on cases of bribery and abuse of power

On December 24, the Plenum of the Supreme Court adopted a Resolution on amending the resolutions of the Plenum of the Supreme Court dated July 9, 2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes” and dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of power and abuse of power."

Chairman of the ICA “Paritet” Erlan Nazarov noted that the issues of combating corruption and its effectiveness continue to remain the most pressing problem of society and the state. He pointed out that the number of people convicted of crimes combined in Chapter. 30 of the Criminal Code of the Russian Federation, is characterized by a consistently high level. “The intensification of the state’s activities in this direction, in turn, requires a more thorough and balanced approach by the judiciary to the consideration and resolution of criminal cases of this category,” the lawyer considered.

Amendments to clarifications on bribery cases

Thus, paragraph 9 of the Resolution “On Judicial Practice in Cases of Bribery and Other Corruption Crimes” states that property transferred as a bribe or the subject of commercial bribery, property services provided or property rights granted must receive a monetary value based on the parties’ submissions. evidence, including, if necessary, taking into account the opinion of a specialist or expert.

Erlan Nazarov pointed out that clause 10 of the resolution is supplemented by the concept of “electronic wallet” as one of the tools for accumulating funds and carrying out payment transactions, which can be used for settlements with corrupt officials. In addition, this paragraph was supplemented with clarification regarding the determination of the moment of the end of the crime, when the valuables, by prior agreement of the participants in the corruption scheme, are placed in an appointed place to which the bribe-taker has access.

“The debatable position on when to consider receiving or giving a bribe to be considered over has remained unchanged. The specified point remained the same - acceptance of at least part of the transferred values, regardless of whether the relevant persons received a real opportunity to use or dispose of the values transferred to them at their own discretion,” the lawyer noted.

In addition, Erlan Nazarov noted that in the new edition of clause 12, which provides explanations on how the actions of a person directly aimed at transferring remuneration should be qualified if an official or responsible person refuses to accept a bribe, the reference to Art. 291.1 of the Criminal Code of the Russian Federation, which provides for liability for mediation in bribery.

He also indicated that from paragraph 13 of the document, which talks about the legal assessment of the actions of persons involved in receiving or giving a bribe, when these actions were carried out in the conditions of an operational operation, the subject composition of intermediaries was excluded. At the same time, according to the expert, paragraph 13 of the resolution remains in its previous wording a very controversial provision that the actions of participants in a corruption transaction committed in the context of an operational investigation are subject to qualification as a completed crime, even if the valuables are immediately confiscated by law enforcement officers .

“Despite the fact that receiving and giving a bribe (commercial bribery) are formal elements of a crime, judicial practice shows that for the most part the corruption acts in question are identified and suppressed exclusively in the course of operational investigative activities, when the reward (values) are transferred under control of intelligence officers. Consequently, in these conditions, the potential bribe-taker’s receipt of remuneration is purely symbolic, conditional in nature; he obviously does not have any opportunity to actually take possession of the received bribe, since such a prospect is not provided for within the framework of the operational procedure,” noted Erlan Nazarov.

According to the logic of the criminal law, he believes, such deliberate actions of an official directly aimed at committing a crime, if the crime was not completed due to circumstances beyond his control, should be assessed from the point of view of Part 3 of Art. 30 of the Criminal Code of the Russian Federation, as an attempted crime. “However, law enforcement officers, guided by the analyzed explanation of the Plenum of the Supreme Court, classify the actions of officials detained at the time of receiving a bribe or immediately after it as a complete composition, which is extremely difficult to agree with, since such a practice, in my opinion, contradicts such important principles of the Criminal Code , as the principle of legality, equality of citizens before the law and guilt,” the lawyer emphasized.

Partner of Feoktistov and Partners Law Firm, lawyer Ruslan Dolotov, considered that one of the key additions to the clarifications of the Plenum of the Supreme Court on bribery issues are clauses 13.1–13.5, dedicated to mediation. In particular, the RF Armed Forces provides in paragraph 13.2 an important, in its opinion, clarification that “mediation by otherwise facilitating the achievement or implementation of an agreement should be considered completed from the moment the intermediary performs one of the specified actions, regardless of the achievement or implementation of an agreement between the briber and the recipient of a bribe, as well as the person transferring or receiving the subject of commercial bribery.”

“Study of law enforcement practice under Art. 204.1 and Art. 291.1 of the Criminal Code has shown that courts periodically unreasonably increase the amount of charges due to incorrect interpretation of the criminal characteristics of these crimes. So, they charge the person with both acts: facilitating the achievement of an agreement between the bribe giver and the bribe recipient on receiving and giving a bribe, and facilitating the implementation of an agreement between them on receiving and giving a bribe,” Ruslan Dolotov shared his experience.

He noted that the legislator specifically emphasizes the alternative nature of these actions with the help of the conjunction “or” in Art. 204.1 and Art. 291.1 CC. In his opinion, in order to charge a person with both actions, the sentence must indicate which of them falls under the concept of “facilitating the achievement of an agreement” and which of them falls under the concept of “facilitating the implementation of an agreement.”

Ruslan Dolotov indicated that the dispositions of Art. 204.1 and Art. 291.1 of the Criminal Code are constructed in the same way as, for example, Part 1 of Art. 228 of the Criminal Code, which lists several alternative actions: storage, transportation, purchase of narcotic drugs. “If a person only stores such funds, he cannot be charged with all the actions specified in the disposition, since this leads to an unreasonable increase in the volume of charges,” he considered. The lawyer hopes that the clarifications contained in paragraph 13.2 of the resolution will solve this problem.

Paragraph 14 of the resolution is stated in a new wording, which states that taking into account the fact that the rules on liability for petty bribery and petty commercial bribery are special in relation to the provisions of Art. 290, 291, 204 of the Criminal Code, receiving or giving a bribe, as well as the subject of commercial bribery in an amount not exceeding 10 thousand rubles, should be qualified under Part 1 of Art. 291.2 of the Criminal Code or Part 1 of Art. 204.2 of the Criminal Code, regardless of what actions (legal or illegal), in what composition of participants (individually or by a group of persons), as well as in the presence of other qualifying signs of bribery and commercial bribery were committed. At the same time, the subject of petty bribery completely coincides with the subject of the crimes provided for in Art. 290 and 291 of the Criminal Code, and the subject of petty commercial bribery - with the subject of the crime provided for in Art. 204 CC.

Erlan Nazarov drew attention to the wording of paragraph 29 of the resolution regarding the assessment of voluntary reporting of bribery as a necessary condition for exemption from criminal liability under Art. 291, 291.2, 204, parts 1–4, 204.2 of the Criminal Code of the Russian Federation. “Previously, it was prescribed that a message made in connection with the fact that the giving of a bribe, mediation in bribery or commercial bribery became known to the authorities cannot be recognized as voluntary. The new edition proposes not to recognize a statement of a crime as such if it was received in connection with the detention of a person on suspicion of committing this crime,” the lawyer noted. In his opinion, this interpretation gives law enforcement officers who have received operational information and are aware of the planned corruption transaction, more opportunities to attract potential bribe-payers or intermediaries to expose corrupt officials through their participation in conducting operational investigations.

Erlan Nazarov considered it justified to remove from paragraph 32 of the resolution, which explains issues related to provocation of a bribe or commercial bribery, the provision that in cases where an official or person performing managerial functions in a commercial or other organization, as a result of provocation, agreed to accept illegal remuneration, the qualification of the offense under Art. 304 CC.

At the same time, the lawyer pointed out that there remains legal uncertainty in the assessment and delimitation of the actions of persons subject to liability under Art. 304 of the Criminal Code for provoking a bribe, as well as those committed in violation of the requirements of Art. 5 of the Law on the operational management of actions of law enforcement officers who provoked an official or a person performing managerial functions in a commercial or other organization to accept a bribe or the subject of commercial bribery.

“In both cases we are talking about provocation of a crime associated with the artificial formation of evidence of a criminal act. Meanwhile, in paragraph 34, it is proposed to distinguish the named actions of employees of operational services from the crime provided for in Art. 304 of the Criminal Code, but no recommendations are given on what legal assessment they are subject to,” emphasized Erlan Nazarov. In his opinion, this position of the Supreme Court is not consistent with elementary logic and is probably considered in the form of a certain indulgence, allowing law enforcement officers to instigate and then identify corruption crimes with impunity.

The lawyer suggested that an attempt to balance the balance of interests of law enforcement agencies and persons against whom operational intelligence measures are being carried out aimed at exposing corruption is clause 36.3 of the resolution. According to the explanations contained therein, the results of the operational investigation can be used in evidence in a criminal case of a corruption crime if they are received and transferred to the preliminary investigation body or court in accordance with the requirements of the law. At the same time, they must indicate the presence of intent to receive or give a bribe or the subject of commercial bribery, as well as to commit intermediary actions, which was formed independently of the activities of employees of bodies carrying out operational investigative activities. “In this regard, in order to evaluate the evidence obtained in the course of operational investigative activities, the court, regardless of the defendant’s admission of guilt, must check the legality and validity of each such operational investigative activity,” the document states. Erlan Nazarov believes that this can be characterized as a private explanation for a certain category of cases of the general requirements of criminal proceedings.

Amendments to clarifications on cases of abuse of power

The Resolution of the Plenum of the Supreme Court on judicial practice in cases of abuse of official powers and exceeding official powers proposes to expand the activities regulated by regulatory legal acts that a person may encroach on, and to add the activities of state companies, state and municipal unitary enterprises, joint-stock companies, a controlling stake which belong to the Russian Federation, constituent entities of the Russian Federation or municipalities.

Another comment on Art. 330 of the Criminal Code of the Russian Federation

1. The objective side is characterized by the unauthorized commission of any actions, the legality of which is disputed by an organization or a citizen. Arbitrariness means that actions are carried out contrary to the procedure provided for by law or other regulatory legal act. The legality of actions can be challenged by any organization or individual in a claim, administrative, judicial or other manner.

2. The crime is completed from the moment significant harm is caused (for example, disorganization of the activities of any body, institution, organization, violation of the constitutional rights of citizens, etc.).

3. The qualifying feature (Part 2) is the use of violence or the threat of its use. Violence may consist of beating the victim, restricting his freedom, causing him other physical pain or minor harm to health. The threat of violence can be of any kind and can be expressed in a mental impact on the victim, up to and including a threat of murder.

Article 285 of the Criminal Code of the Russian Federation. Abuse of power

1. The use of official powers involves the commission of an act to implement certain rights and obligations of an official established by law, decree or other regulatory act.

The use by an official of his official powers contrary to the interests of the service is understood as the commission of such acts that, although they were directly related to the exercise by the official of his rights and duties, were not caused by official necessity and objectively contradicted both the general tasks and requirements for the state apparatus and the apparatus local government bodies, as well as those goals and objectives for the achievement of which the official was vested with the appropriate official powers.

In particular, the actions of an official within the scope of his official powers should be qualified as abuse of official powers, in the absence of mandatory conditions or grounds for their commission (for example, issuing a driver’s license to persons who have not passed a mandatory exam; hiring persons who are actually employed do not fulfill duties; release by commanders (chiefs) of subordinates from the performance of their official duties with assignment to work in commercial organizations or arrangement of an official’s personal home) (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 N 19 “On judicial practice in cases of abuse of power and abuse of power").

2. Violation of the rights of citizens or organizations as a result of abuse of official powers should be understood as a violation of the rights and freedoms of individuals and legal entities guaranteed by generally accepted principles and norms of international law, the Constitution of the Russian Federation (for example, the right to respect for the honor and dignity of the individual, personal and family life of citizens ; the right to inviolability of home and privacy of correspondence, telephone conversations, postal, telegraph and other messages, as well as the right to judicial protection and access to justice, including the right to an effective remedy in a government body and compensation for damage caused by a crime).

3. Judicial practice recognizes the following main types of harm affecting the interests of citizens, organizations and the state:

physical (bodily injury, death);
property (material damage, lost profits, destruction, damage, etc.);
organizational (suspension of the activities of an enterprise, organization, disorganization of the activities of one or another link of the state apparatus, disruption of public events, sports competitions, etc.);
harmed to the interests of justice (concealment and failure to register crimes and failure to take measures to investigate them).

4. When assessing the significance of the harm, it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and size of the material damage it suffered, the number of injured citizens, the severity of the physical, moral or property damage caused, etc.

5. The subjective side of the crime is characterized by intentional guilt. Its obligatory feature is a motive - selfish or other personal interest.

Selfish interest presupposes the desire of an official, by committing unlawful actions, to obtain for himself or other persons a benefit of a property nature, not related to the illegal gratuitous circulation of property for his own benefit or for the benefit of other persons (for example, illegal receipt of benefits, credit, exemption from any property costs , return of property, repayment of debt, payment of services, payment of taxes).

Personal interest lies in the desire to benefit from a non-property nature, caused by such motives as careerism, nepotism, the desire to embellish the actual situation, receive a mutual favor, enlist support in resolving any issue, and hide one’s incompetence.

6. The subject of the crime is a special one - an official. The characteristics of an official are indicated in the footnote to the commented article. It provides for three categories of officials:

1) government representatives;
2) persons performing organizational and administrative functions in state bodies, local governments, state and municipal institutions, state corporations, in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation;
3) persons serving in the same bodies and performing administrative and economic functions.

These functions can be performed on a permanent basis, temporarily or under special authority.

7. The concept of a government representative is given in the note to Art. 318 CC. The Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of abuse of official powers and exceeding official powers” clarifies that persons vested with the rights and responsibilities of exercising the functions of legislative, executive or judicial authorities, and also other persons of law enforcement or regulatory bodies vested in the manner prescribed by law with administrative functions in relation to persons who are not officially dependent on them, or the right to make decisions binding on citizens, organizations, institutions, regardless of their departmental affiliation and forms of ownership (p .3).

Technical workers and workers not related to the operational staff (heads of offices, lawyers, employees of economic services) are not recognized as representatives of the authorities, although they may be officials according to other criteria specified in the law (if they have, for example, organizational and administrative functions).

Representatives of the authorities are military personnel of the internal troops in the performance of their combat service duties in assisting the internal affairs bodies of the Russian Federation in protecting public order (Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery "), ensuring public safety and the legal regime of a state of emergency, protecting important state facilities and special cargo, guarding correctional institutions, escorting convicts and persons in custody, employees of departmental and private security, inspectors of correctional institutions and pre-trial detention centers (Resolution of the Plenum of the Supreme Court USSR dated January 16, 1986 No. 4 “On the qualification of crimes in service committed by controllers of correctional labor institutions and pre-trial detention centers”).

Representatives of the authorities include judges, prosecutors, their assistants, investigators, managers, auditors and inspectors of the Accounts Chamber of the Russian Federation.

8. Persons performing functions temporarily or under special authority, for example, jurors in courts, are also recognized as representatives of the authorities. Performing the functions of a government representative under a special authority may be assigned to a person by law, regulation, order or instruction of a superior official or an authorized body or official. These functions can be carried out for a certain time or one-time, or combined with the main job.

9. If a person appointed to a position in violation of the requirements or restrictions established by law or other regulatory legal acts for a candidate for this position (for example, in the absence of a diploma of higher professional education, the required work experience, with a criminal record), for selfish or other reasons personal interest, used official powers contrary to the interests of the service or committed actions that clearly went beyond the scope of his powers, resulting in a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, then such actions should be qualified, respectively, as abuse of official powers or as excess official powers.

10. In the Armed Forces of the Russian Federation, other troops, military (special) formations and bodies performing functions to ensure the defense and security of the state, officials who permanently, temporarily or by special authority perform organizational, administrative and (or) administrative and economic functions, may be superiors by official position and (or) military rank. Chiefs by official position are persons to whom military personnel are subordinate in service. Chiefs by military rank are defined in Art. 36 of the Charter of the Internal Service of the Armed Forces of the Russian Federation, approved by Decree of the President of the Russian Federation of November 10, 2007 N 1495.

11. Organizational and administrative functions involve managing people. They are possessed by managers at various levels (heads of departments, departments, committees, their deputies, etc.) - everyone who has people subordinate to them. These functions are characterized by responsibilities for the selection and placement of personnel, hiring, giving tasks to perform a particular job, monitoring its implementation, taking disciplinary measures in the form of rewards and punishments, etc.

12. These functions include the powers of persons to make decisions that have legal significance and entail certain legal consequences (for example, to issue a certificate of temporary disability by a medical worker, to establish by an employee of a medical and social examination institution that a citizen has a disability, to take exams and give grades by a member state examination (certification) commission).

Administrative and economic functions consist of managing (disposing of) material resources (finance, property, etc.). These functions are typical for the first heads of one or another independent body, their deputies or heads of financial and economic services - the head of the financial department, the chief accountant, the head of procurement, etc.

As administrative and economic functions, one should consider the powers of an official to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of organizations, institutions, military units and units, as well as to perform other actions (for example, making decisions on the calculation of wages, bonuses, monitoring the movement of material assets, determining the procedure for their storage, accounting and control over their expenditure).

13. Certain categories of positions may combine both managerial and professional functions (for example, medical workers, teachers). The use of the latter does not constitute a malfeasance.

14. Persons holding public positions in the Russian Federation mean persons holding positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies: President of the Russian Federation, Chairman of the Government of the Russian Federation, chairmen of the chambers of the Federal Assembly of the Russian Federation, deputies, federal ministers , Prosecutor General of the Russian Federation, Chairman of the Central Bank of the Russian Federation, Chairman of the Accounts Chamber of the Russian Federation, judges, Ambassador Extraordinary and Plenipotentiary of the Russian Federation, etc.

Persons holding public positions in the constituent entities of the Russian Federation are persons whose positions are established by the constitutions or charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies: presidents of republics, governors, heads of legislative and executive power (chairmen of legislative assemblies (parliaments), governments, etc. ), deputies, members of governments, etc.

The heads of local government bodies are the heads of municipal formations - the highest officials of the municipal formation, endowed by the charter of the municipal formation with their own powers to resolve issues of local importance.

15. Serious consequences may include serious bodily injury, death, major material damage, major accidents, long-term shutdown of the production process, etc.

Difficulties in assessing crimes of arbitrariness

Presence of selfish or other personal motives for abuse of official powers

Challenging the law in cases of arbitrariness

Be smart!

Explanations of the Supreme Court

How to distinguish an act under Art. 285 of the Criminal Code of the Russian Federation from other compounds

Judicial practice in arbitrary cases

Everything about criminal cases

Adviсe

Appeal decision No. 22-254/2018 dated February 27, 2022 in case No. 22-254/2018

Appeal decision No. 22-1267/2018 dated February 27, 2018 in case No. 22-1267/2018

Appeal decision No. 22-284/2018 dated February 27, 2022 in case No. 22-284/2018

Russian logistics

Criminal legal qualification of arbitrary actions

Decision No. 3A-11/2018 3A-11/2018 (3A-462/2017;) ~ M-504/2017 3A-462/2017 M-504/2017 dated February 27, 2022 in case No. 3A-11/2018

Resolution No. 44U-13/2018 4U-20/2018 4U-949/2017 dated February 26, 2022 in case No. 1-48/2017

Appeal decision No. 22-296/2018 22K-296/2018 dated February 22, 2022 in case No. 22-296/2018

Appeal decision No. 22-341/2018 dated February 22, 2022 in case No. 22-341/2018

Appeal decision No. 22-722/2018 dated February 22, 2022 in case No. 22-722/2018

Appeal decision No. 22K-942/2018 dated February 21, 2018 in case No. 22K-942/2018

Appeal decision No. 22-207/2018 dated February 21, 2022 in case No. 22-207/2018

Commentary on Article 330 of the Criminal Code of the Russian Federation

What investigators must prove in case of abuse of power

Subjective side (deliberate form of guilt, presence of selfish or other personal motives)

What is the punishment for arbitrariness under the Criminal Code in Russia?

The Plenum of the Supreme Court specified resolutions on cases of bribery and abuse of power

Amendments to clarifications on bribery cases

Amendments to clarifications on cases of abuse of power

Another comment on Art. 330 of the Criminal Code of the Russian Federation

Article 285 of the Criminal Code of the Russian Federation. Abuse of power