ST 293 of the Criminal Code of the Russian Federation.
1. Negligence, that is, failure or improper performance by an official of his duties due to dishonest or negligent attitude towards service or duties in office, if this resulted in major damage or a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, —
shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to three hundred and sixty hours, or by corrective labor for a term of up to one year, or by arrest for a term of up to three months. .
1.1. The same act that entailed the infliction of especially large damage -
shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or with compulsory labor. for a term of up to four hundred eighty hours, or correctional labor for a term of up to two years, or arrest for a term of up to six months.
2. An act provided for in the first part of this article, which through negligence entailed the infliction of serious harm to health or the death of a person, -
shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.
3. An act provided for in the first part of this article, resulting in the death of two or more persons through negligence, -
shall be punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or without one.
Note
. In this article, major damage is recognized as damage the amount of which exceeds one million five hundred thousand rubles, and especially large damage - seven million five hundred thousand rubles.
Commentary to Art. 293 Criminal Code
1. According to Article 293 of the Criminal Code of the Russian Federation, the objective side presupposes: a) an act in the form of an action or inaction (failure to perform or improper performance by the subject of his duties due to dishonest or negligent attitude towards service in the presence of a real possibility of proper performance or duties of the position); b) a consequence in the form of major damage (note to the article) or a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state; c) the causal relationship between the act and the consequence.
2. The subjective side is characterized by a careless form of guilt.
Not just damage
Roman Velichenko turned to protect his brother’s reputation. Working as a state registrar in the territorial body of Rosreestr in the Kaliningrad region, Evgeny Velichenko formalized a transaction for the purchase and sale of a land plot. However, the seller was not the owner of the land, but his full namesake, differing only in his date of birth. Evgeniy did not pay attention to this and became a defendant in a criminal case under Article 293 of the Criminal Code of the Russian Federation “Negligence,” but died without waiting for the verdict. The case was dismissed on non-exonerating grounds.
The courts of general jurisdiction considered that although the damage from the transaction was estimated at 630 thousand rubles, that is, does not fall under the “large” criterion, in the Velichenko case there is a violation of the constitutional right of ownership of land. They did not accept the brother’s arguments that the wording “a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state” was introduced as part of countering terrorism. Now these arguments have been analyzed by the Constitutional Court of the Russian Federation.
According to Roman, the current rule of law leaves the court too broad a discretion - not only a clear indication of the amount, but also vague criteria for the concept of “significant violation”, which contradicts the requirement of certainty and consistency of the legislative act. The Constitutional Court has repeatedly emphasized the mandatory nature of this principle in its decisions. At the same time, the requirement of certainty does not exclude the use of evaluative or generally accepted concepts, the judges believe.
They also recalled that the Criminal Code classifies negligence as crimes against state power and the interests of the civil service. And the use of the conjunction “or” in the wording gives the courts the right to make their own assessment - whether major damage or significant harm was caused as a result of the actions of an official. That is, to qualify a crime under Article 293 of the Criminal Code of the Russian Federation, one of these signs is sufficient. Damage below the limit established by law does not exclude that other rights of the citizen could be violated at the same time.
In addition to the value of the property, its significance for the owner may be considered significant
“Beyond the value of the object, the aesthetic, family, social and status significance of things and property rights, the use by the victim of lost property as the only possible way in a specific life situation to satisfy the need for housing and other similar circumstances can be taken into account and recognized as significant,” the Constitutional Court of the Russian Federation indicated. — These circumstances must be established and proven.
The case of Roman Velichenko is subject to review. If the court considers that the disputed plot had only material value for the owner and was not, for example, a family nest, the good name of his brother will be partially restored.
Second commentary to Art. 293 of the Criminal Code of the Russian Federation
1. The objective side consists of three signs:
1) failure or improper performance by the offender of his official duties;
2) the occurrence of socially dangerous consequences in the form of causing major damage or a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state;
3) a causal relationship between the act and the consequences.
2. Failure to perform official duties means inaction - failure by a person to perform specific actions that he was obliged to perform by virtue of his official status. When establishing the elements of official negligence, it is necessary in each case to determine the range of official powers of the official and establish which specific duties were not performed by him without good reason.
3. Improper performance of duties should be understood as their incomplete, or poor quality, or untimely performance.
4. The objective side of negligence is characterized not simply by non-fulfillment or improper performance of official duties, but by the fact that they were not fulfilled due to the dishonest or negligent attitude of the culprit towards the service. By dishonesty one must understand the conscious neglect of all or some of one’s duties, treating them as optional or unimportant. Negligence in service means insufficient attention to one's duties, performing them without due care and diligence.
5. Negligence is punishable only if socially dangerous consequences occur in the form of causing major property damage or a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. The amount of damage is large if its amount exceeds 1.5 million rubles. (note to Article 293 of the Criminal Code). On the concept of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, see the comments to Art. 285 CC.
6. On its subjective side, it can be expressed in frivolity or negligence.
7. The subject of the crime is special: an official.
8. Causing particularly large damage (over 7 million rubles - note to Article 293 of the Criminal Code) entails increased liability under Part 1.1 of this article.
9. Part 2 provides for liability for negligence resulting in negligence in causing serious harm to health or the death of a person. In the latter type, negligence competes with the crime provided for in Part 2 of Art. 109 of the Criminal Code. The competition of these norms should be resolved in favor of Part 2 of Art. 293 of the Criminal Code, which is special in relation to Part 2 of Art. 109 of the Criminal Code.
10. Part three of Art. 293 of the Criminal Code establishes liability for negligence resulting in the death of two or more persons.
The Constitutional Court clarified when there will be a criminal offense for negligence
Background
Evgeniy Velichko*, being a state registrar in the territorial body of Rosreestr for the Kaliningrad region, formalized the land purchase and sale transaction. Later it turned out that the documents for sale were submitted not by the owner of the plot, but by its namesake. The damage to the real owner, according to the examination, amounted to about 630,000 rubles. A criminal case was opened against Velichko under Part 1 of Art. 293 of the Criminal Code (“Negligence”). While the investigation was ongoing, the official died.
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The relatives were asked to close the case on non-exonerating grounds - due to the expiration of the statute of limitations and due to the death of the accused. But his brother Roman Velichko opposed it and went to court. The first instance, having established the deceased’s involvement in the crime, refused rehabilitation. This decision was left unchanged by the Kaliningrad Regional Court. At the same time, the courts found a significant violation of the rights and interests of the victim in the fact that he lost ownership of the plot. The cassation instance and the Supreme Court refused to consider Velichko's complaint.
As a result, he appealed to the Constitutional Court, insisting that the controversial norm allows an official to be held criminally liable for failure to perform or improper performance of his duties due to dishonest or negligent attitude towards service in cases where the damage amounted to less than 1.5 million rubles.
According to current legislation, an official can be charged under the article “Negligence” if the amount of damage was at least 1.5 million rubles. For this, the official may face a fine of up to 120,000 rubles. or in the amount of salary for a five-year period. They may also be sentenced to compulsory labor for up to 360 hours, correctional labor for one year, or arrest for up to three months.
What did the court decide?
The Constitutional Court decided that the disputed norm does not contradict the Basic Law “if properly understood and applied”: it clarifies the conditions for the application of criminal law, increases its predictability in cases where the consequences of negligence can be calculated materially, with the help of expertise or professional assessment.
At the same time, the court may not take into account other consequences of negligence, in which the prosecution would have to prove the harm caused to the victims, and the defense would have to challenge the accusation, belittling the importance of these values, the Constitutional Court indicated.
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“In any case, the sign of large damage, which must be calculated in a monetary amount, forms a sufficient condition for bringing to criminal liability for negligence, if all other signs of this crime are present,” the resolution says.
Causing harm only to the right of ownership without major damage to property in itself is not enough for criminal prosecution. A different understanding of the contested legal provision would lead to uncertainty in criminal law regulation contrary to the Constitution, the Constitutional Court is convinced.
“At the same time, causing material damage not on a large scale does not exclude the discovery that the act significantly violated rights and interests other than economically significant ones, protected by law. Bringing criminal liability in this case is not due to the monetary assessment of the harm caused,” the Constitutional Court noted, emphasizing that non-economic values can be taken into account and recognized as significant: aesthetic, family, social and status significance of things and property rights, the use by the victim of lost property as the only possible housing and other similar circumstances.
Now the case of Roman Velichko is subject to review taking into account the position of the Constitutional Court.
Lawyers' opinions
Experts interviewed by Pravo.ru assessed the adopted resolution differently. So, according to the partner of KA Pen & Paper Pen & Paper Federal rating. Anatoly Loginov, although the Constitutional Court’s act should uniformize judicial practice in proving the socially dangerous consequences of officials’ negligence, it turned out “not very successfully.”
The position of the Constitutional Court raises new unresolved questions, Loginov argues: “From the point of view of legal technology, everything seems to be correct. To determine the degree of harm when economic interests are affected (for example, property rights), the Constitutional Court requires focusing on the material aspect, indicated by the amount of 1.5 million rubles. At the same time, the court argues that if the damage does not exceed 1.5 million, then there is no corpus delicti, since it is unacceptable in this case to call the deprivation of the victim’s property rights in itself a significant violation.”
He notes that if, for example, in Moscow an official could be put on trial for such a crime, then in the provinces, most likely not, since the cost of the same real estate or plots outside the Moscow Ring Road is significantly lower. “As practice shows, in our criminal justice system it would be correct to completely exclude evaluative language and at the same time remind the legislator that life outside the Moscow Ring Road is different, and the damage in such amounts is exaggerated,” the expert believes.
In turn, senior partner of AB Law Office ZKS Law Office ZKS Federal rating. Criminal Law group 16th place By revenue per lawyer (less than 30 lawyers) 41st place By revenue Company profile Andrey Grivtsov, on the contrary, calls the Constitutional Court ruling “one of the few related to criminal cases that resolved the issue on the merits.”
In fact, the Constitutional Court decided to eliminate the mistake made by the SOJ in interpreting the norm of Art. 293 of the Criminal Code, when an act that caused material damage of less than 1.5 million rubles was recognized as criminally punishable under this article. This, as the Constitutional Court noted, is not a question of a “bad” or unconstitutional norm, it is a question of distorted law enforcement and an incorrect understanding of the norm.
Andrey Grivtsov
He added that it is impossible to talk about the presence of a crime based on the occurrence of significant harm if we are talking about material damage in the amount of less than 1.5 million rubles, and about no other consequences. It is gratifying that the Constitutional Court decided to reconsider the case against the applicant, since currently the Constitutional Court makes such decisions very rarely, the lawyer concluded.
*Name has been changed by the editors.
- Yulia Egorova
Judge Kurbanov D.R. Case No.………/2016
DECISION OF APPEAL
Moscow city... June 2016
Moscow City Court composed of presiding judge Simarov A.V. , under secretary Panova K.K.,
with:
Prosecutor of the appeal department of the criminal justice department of the prosecutor's office of the city of Moscow A.M. Khriiunova, considered at a court hearing the criminal case on the appeal of the defense lawyer Balashov V.E. on the verdict of the Gagarinsky District Court of Moscow dated March 14, 2016, by which......I.P.,......year of birth, native......citizen of the Russian Federation, higher education, married, with a young child....... year of birth, working as an inspector of the ………… department of the Ministry of Internal Affairs of Russia in the ………… district of Moscow, not convicted, convicted under Part 1 of Art. 293 of the Criminal Code of the Russian Federation to a fine in the amount of 80,000 (eighty thousand) rubles, released from the punishment prescribed under Part 1 of Article 293 of the Criminal Code of the Russian Federation on the basis of clause “a”, Part 1 of Article 78 of the Criminal Code of the Russian Federation, Clause 3 of Part 1 of Art. .24 of the Code of Criminal Procedure of the Russian Federation, due to the expiration of the statute of limitations for criminal prosecution.
Preventive measure…………I.P. in the form of a written undertaking not to leave the place and proper behavior, was left unchanged until the sentence entered into legal force.
The fate of the material evidence was decided by the verdict.
Having heard the report of judge A.V. Simarova, having listened to the speech of the convicted person………. I.P. and the lawyer who supported the arguments of the appeal, the opinion of the prosecutor AM Khripunov, who believed that the verdict should be overturned and the criminal case returned for a new trial, the court of appeal
Installed:
According to the court verdict, ……… I.P. was found guilty of negligence, that is, improper performance by an official of his duties due to dishonesty in the service, resulting in a significant violation of the interests of the state protected by law, namely that …….. I. P., appearing on the basis of an order from the Internal Affairs Directorate for …….. Main Directorate of the Ministry of Internal Affairs of Russia for Moscow No. ……. 2011, inspector of the juvenile affairs department of the Ministry of Internal Affairs of Russia for ………. district of Moscow, that is, an official police officer who, by virtue of his position, has a wide range of rights and powers, including those of an imperious nature, guided in his official activities by the Constitution of the Russian Federation, the UN Convention on the Rights of the Child, and the Federal Law of February 7, 2011 of the year No. 3-FZ “On the Police”, Federal Law of June 24, 1999 No. 120-FZ “On the fundamentals of the system for the prevention of neglect and juvenile delinquency”, Federal Law of July 24, 1998 No. 124-FZ “On the basic guarantees of the rights of the child in Russian Federation", Order of the Ministry of Internal Affairs of the Russian Federation of May 26, 2000 No. 569 "On approval of the Instructions for organizing the work of departments for juvenile affairs of internal affairs bodies", the official regulations of the inspector for juvenile affairs, approved by the head of the department of the Ministry of Internal Affairs of Russia for ....... district of Moscow and other legislative and departmental regulations, improperly performed her official duties due to a negligent attitude to service, which resulted in a significant violation of the priority interests of the state protected by law in the following circumstances. …… I.P., during the period from …….. 2013 to ……. 2013, . being vested with the authority to accept applications and messages and resolve them in a timely manner in accordance with current legislation; implementation of interaction between educational institutions located in the operational service area of the Department; participation in organizing and conducting joint events; analysis and synthesis of data on crimes and offenses among students; ensuring the protection of the rights and legitimate interests of minors; social and pedagogical rehabilitation of minors in a socially dangerous situation; carrying out individual preventive work in relation to minors, their parents or legal representatives, if necessary, to prevent them from committing offenses, exercising the powers it has on the premises of the department of the Ministry of Internal Affairs of Russia for ………. district of Moscow, located at the address: Moscow, st. ……., d., having reliably information about the socially dangerous situation of the minor……….. A.N. ……. Born in 1995, financially, psychologically and socially dependent on her parents living with her - ………. N.M. And ……. CM. at the address: Moscow, st. ……….., who became ………….I.P. known during the consideration of a crime report in the manner prescribed by Art. 144, 145 of the Code of Criminal Procedure of the Russian Federation, registered in the book of reports of crimes of the Department of Internal Affairs of Russia on ………. district of Moscow No. ……….. 2013, containing data on the delivery of ………… A.N. ……… 2013 to the Research Institute of Emergency Surgery and Traumatology in Moscow with bodily injuries in the form of a closed craniocerebral injury, concussion, bruise of the soft tissues of the face and scalp, which were caused to her by her father ……… … N.M., ……… 2013 at approximately 19:00, located at the address: Moscow, st. ……………….. without sufficient grounds, foreseeing the possibility of socially dangerous consequences of her actions, but without sufficient grounds, arrogantly counting on preventing these consequences, frivolously regarding the fulfillment of the duties assigned to her, contrary to Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, made a procedural decision to refuse to initiate a criminal case on the grounds provided for in paragraph 2 of Part 1 of Article 24 of the Code of Criminal Procedure of the Russian Federation, due to the absence of ………N.M. signs of a crime under Part 2 of Art. 116 of the Criminal Code of the Russian Federation, on the fact of beating ……….. A.N., thereby not ensuring the protection of the rights and legitimate interests of the minor……. A.N., at the same time………I.P., after making the said decision, realizing that the minor…….. A.N. is in a difficult life situation due to domestic violence applied to her, has not taken any measures aimed at registering the Isaev family with the appropriate registration and. control, did not independently carry out the necessary individual preventive work in relation to the minor …….. A.N., her parents to prevent them from committing further illegal actions in relation to ……….. A.N., and also did not notify the Commission on minors and the protection of their rights, which is designed to ensure the protection of the rights and legitimate interests of minors, which led to the commission of further illegal actions by ……….. N.M. in relation to a minor daughter - ……… A.N., which ultimately led to the suicide of the latter …….. 2013. Thus, by his criminal actions………. I.P. as a result of improper performance of her official duties, she grossly violated the norms and requirements enshrined in the Constitution of the Russian Federation, the UN Convention on the Rights of the Child, Federal Law of February 7, 2011 No. 3-FZ “On the Police”, Federal Law of June 24, 1999 No. - :0-FZ “On the fundamentals of the system for the prevention of neglect and juvenile delinquency”, Federal Law of July 24, 1998. No. 124-FZ “On the basic guarantees of the rights of the child in the Russian Federation”, which resulted in a significant violation of the priority interests of the state and state protected by law policies in the field of protecting the rights of children who, due to physical and mental immaturity, need special protection and care, education and growing up in a family environment in an atmosphere of happiness, love and understanding, violation of the principles of legality, democracy, humane treatment of minors, family support and interaction with it, state support for the activities of local governments. and public associations for the prevention of crimes committed against minors.
At the court hearing, the convicted……. I.P. She did not plead guilty to the charges brought against her.
In the appeal, lawyer V.E. Balashov expresses disagreement with the court’s verdict regarding ………… I.P., considering it illegal, unfounded and unfair, due to a significant violation of the norms of substantive and procedural law and incorrect application of the criminal law. Believes that the fault is………. I.P. the commission of this crime has not been proven. The author of the complaint analyzes in detail the evidence presented in the verdict, believes that the actions or inactions of ………… I.P. were committed intentionally and deliberately, while the disposition of Art. 293 of the Criminal Code of the Russian Federation provides for a careless form of guilt. The author of the complaint draws attention to the fact that the commission specified in Art. 293 of the Criminal Code of the Russian Federation, an act (action or inaction) must entail consequences in the form of causing major damage or a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. The author of the complaint draws attention to the fact that, by its design, the corpus delicti is material, and there must be a direct and immediate causal connection between the action (inaction) of a person and the resulting consequences. In relation to this circumstance, the lawyer quotes paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 X 19 “On judicial practice in cases of abuse of power and exceeding official powers.” The lawyer believes that the preliminary investigation body and the court of first instance did not it has been established what constituted a significant violation of the interests of the state protected by law; no causal connection has been established between the failure to fulfill or improper fulfillment of ……… I.P. their official duties and the named consequences. He believes that it is impossible to agree with the court’s conclusions about unfair treatment of the service, since permission to register is given in writing by the head of the department or his deputy. Believes that…….. I.P. did not have the right and grounds to register the family……… based on the information she had and the lack of permission from the boss. He believes that the convict had a conversation with a minor........ A.N. based on which there was no reason to believe that the latter was in a difficult life situation. In addition, the prosecutor's office was informed about the incident, which, in turn, also did not see from the presented materials violations of the rights and freedoms of the minor as grounds for prosecutorial response measures. Considers that it is impossible to agree with the conclusions of the prosecution that ………. I.P. contrary to Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation made a procedural decision to refuse to initiate criminal proceedings against …….. N.M., thereby not ensuring the protection of the rights and legitimate interests of …….. A.N., because the latter had legal representatives, whose parental rights were not limited; also, this resolution was not canceled by the prosecutor’s office in the order of supervision; no violations were found in this part. The above circumstances and lack of guilt……. I.P. in the commission of a crime, including confirmed by the conclusion of the official inspection available in the case materials, based on which, any violations of the defendant when considering the inspection material according to ……..A.N. has not been established. The lawyer points out that in accordance with Art. 14 of the Code of Criminal Procedure of the Russian Federation, all doubts about the guilt of the accused, which cannot be eliminated in the manner established by this Code, are interpreted in favor of the accused. He believes that the above arguments are not resolved in the appealed verdict; the court did not give them a proper legal assessment. Thus, the actions and inactions established by the court…….. I.P. do not contain signs of a criminal offense. Based on the results of consideration of the complaint, he asks that the verdict of the Gagarinsky District Court of Moscow dated ...... 03.2016 be canceled and passed in relation to ...... I.P. acquittal, or transfer the criminal case for a new trial to the court of first instance from the stage of preparation for the trial or trial.
At the court hearing, the convicted person………. I.P. and the lawyer supported the arguments of the appeal, asked to cancel the verdict and dismiss the case.
Prosecutor Khripunov AM., objected to the arguments of the appeal and asked to cancel the verdict and return the criminal case for a new trial, due to the lack of a proper assessment of the defense’s arguments.
Having checked the case materials, discussed the arguments of the appeal, and listened to the participants in the process, the appellate court finds a court decision regarding ………. I.P., subject to cancellation, and the criminal case to be terminated due to the absence of corpus delicti in the actions of the specified person, on the following grounds.
In accordance with Art. 297 of the Code of Criminal Procedure of the Russian Federation, the court’s verdict must be legal, reasonable and fair.
A sentence is recognized as such if it is passed in accordance with the requirements of the criminal procedure law and is based on the correct application of the criminal law.
However, the court did not comply with these legal requirements.
In accordance with clause 4, part 1, art. 389.16 of the Code of Criminal Procedure of the Russian Federation, the sentence is recognized as not corresponding to the factual circumstances of the case if the conclusions of the court set out in the sentence contain significant contradictions that influenced the resolution of the issue of the guilt of the convicted person.
So, recognizing………. I.P., guilty of negligence, the court of first instance concluded that she, being an inspector of the juvenile affairs department of the Ministry of Internal Affairs of Russia for ………. district of Moscow, that is, an official - a police officer, who, by virtue of his position, has a wide range of rights and powers, frivolously regarding the fulfillment of the duties assigned to her, contrary to Part 4 of Article 20 of the Code of Criminal Procedure of the Russian Federation, made a procedural decision to refuse to initiate criminal case on the basis provided for in clause 2, part 1, article 24 of the Code of Criminal Procedure of the Russian Federation, due to the absence of …….. N.M. signs of a crime under Part 2 of Art. 116 of the Criminal Code of the Russian Federation, upon the fact of beating …….. A.N., thereby not ensuring the protection of the rights and legitimate interests of the minor ……… A.N., while ……… I.P., after .acceptance of the said decisions, realizing that the minor ……… A.N. is in a difficult life situation due to domestic violence applied to her, did not take any measures aimed at placing the family …….. under appropriate registration and control, did not independently carry out the necessary individual preventive work in relation to the minor ……….. A.N., her parents to prevent them from committing further illegal actions in relation to …….. A.N., and also did not notify the Commission on Minors’ Affairs and Protection of Their Rights, which is designed to ensure the protection of the rights and legitimate interests of minors, which led to the commission of further illegal actions by ………N M.o. in relation to a minor daughter - ……….. A, N., which ultimately led to the latter’s suicide……. 2013.
Meanwhile, the indicated conclusions of the court are not confirmed by the case materials and the evidence examined by the court, and the actions of the official established by the court ……… I.P. in this part, as a decision to refuse to initiate a criminal case cannot be considered frivolous, taking into account the specifics provided for in Art. 20 of the Code of Criminal Procedure of the Russian Federation, possible initiation of a criminal case under Art. 116 of the Criminal Code of the Russian Federation.
At the same time, the materials of the criminal case and the court verdict established that the procedural decision made by ………… I.P. on the basis provided for in clause 2, part 1, article 24 of the Code of Criminal Procedure of the Russian Federation, due to the absence of …….. N.M. signs of a crime under Part 2 of Art. 11b of the Criminal Code of the Russian Federation, on the fact of beatings…….. A.N., the supervisory authority has not canceled the violations of the rights and freedoms of the minor………A.N., not established.
When determining the objective side of a crime, it is mandatory to establish the following circumstances:
what specific duties, non-fulfillment or improper fulfillment of which is blamed, were assigned to this official. To do this, you should refer to the relevant documents describing the range of such responsibilities: the law, another regulatory legal act, job description, employment contract, etc. The corresponding responsibilities must be assigned to the person in the manner prescribed by law, in compliance with the necessary procedure (familiarization of the official with the order , job description, terms of the employment contract, signing the necessary documents). Failure by an official to perform actions that were not part of his official duties does not form part of the crime in question;
- which of the duties assigned to the official were not fulfilled or performed improperly. To constitute negligence, it is not enough just a general, unspecified indication of improper performance of duties. It is mandatory to establish and describe the range of specific responsibilities formally assigned to the person.
Criminal negligence necessarily presupposes that the performance of the relevant duties was within the scope of the official’s powers, enshrined in a specific law or other regulatory legal act, as well as in the relevant job descriptions, orders, instructions.
In the evidence presented to the court by the prosecution, which defines the terms of reference of …….. I.P., there is no information about the familiarization of …….. I.P. with job descriptions, including requirements for officials of the juvenile affairs department of the Ministry of Internal Affairs of Russia to ………. district of Moscow.
The relationship between the need to notify the Commission on Cases and the protection of their rights after a procedural decision is made to refuse to initiate a criminal case. The absence of a properly executed legal act on the terms of reference of the official ……….. I.P. excludes liability for negligence.
In addition, the preliminary investigation authorities refer to a law that has actually lost its force - the Decree of the Presidium of the Supreme Soviet of the RSFSR “On approval of the Regulations on the Commission for Minors’ Affairs.”
Within the meaning of the law, the corpus delicti provided for in Art. 293 of the Criminal Code of the Russian Federation, occurs only in the case when a causal connection is established in the case between the unlawful actions (inaction) of an official and the resulting consequences.
Moreover, a causal connection between the inaction of an official and the resulting consequences exists only if it is established that the proper performance of official duties would have prevented the occurrence of harmful consequences.
Such consequences that would occur from the actions of ……….. I.P. and the existence of a causal connection between the actions and consequences was not provided by the investigative bodies and was not established by the court.
Indication in the sentence of non-compliance ……… I.P. requirements of federal laws and the UN Convention on the Rights of the Child, in itself does not contain signs of a criminal act, since it is not in a causal connection with the socially dangerous consequences that have occurred.
Under such circumstances, the appellate court comes to the conclusion that there was no ……… I.P. in the actions of the convicted person. corpus delicti under Part 1 of Art. 293 of the Criminal Code of the Russian Federation, in connection with which, the court’s verdict in relation to ..... I.P. subject to cancellation, and the criminal case in accordance with Art. 389.21 of the Code of Criminal Procedure of the Russian Federation in relation to her termination on the basis of clause 2 of part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation.
Based on the aforesaid and guided by Article. Art. 389.13, 389.20, 389.21, 389.28 Code of Criminal Procedure of the Russian Federation, court
Resolved:
The verdict of the Gagarinsky District Court of Moscow dated ...... 2016 in relation to ………..I.P., convicted under Part 1 of Art. 293 of the Criminal Code of the Russian Federation, cancel the criminal case in accordance with paragraph 2 of Part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, the proceedings should be terminated due to the absence of corpus delicti in her actions, and the lawyer’s appeal should be satisfied.
Based on Part 1 of Art. 134 of the Code of Criminal Procedure of the Russian Federation to recognize for ...... I.P. right to rehabilitation.
