Among various economic crimes, theft of public funds is one of the most common. Various officials, heads and managers of state enterprises, universities, institutes, medical institutions, etc. face accusations of such actions. – in a word, wherever budget funding is provided. Therefore, everyone needs to know what to do in situations where charges of embezzlement of budget funds are brought against you or your relatives. In this article we will look at what this offense includes, what liability it entails, and how a lawyer can help.
What is considered theft of public funds?
There are two articles in the current criminal code that can be used against those who embezzle budget money or spend it for their own purposes. The first of them is Art. 160 Misappropriation or embezzlement. It is more general and applies equally in both the public and private spheres. According to this article, the crime includes either the theft of property without the consent of the owner (embezzlement), or spending/transferring to third parties also without the consent of the owner (embezzlement). A crime can be qualified under this article if a person in the public service was entrusted with any property, and he appropriated it, sold it, or transferred it free of charge without the sanction of the state.
The second article of the Criminal Code of the Russian Federation concerning the theft of public funds is Art. 285.1. Inappropriate spending of budget funds. It is used less frequently because it includes a more limited set of actions by the offender. According to the criminal code, in this case we are talking about spending funds received as part of budget financing for purposes that were not provided for by the budget. In this case, it is necessary to prove that the accused not only spent budget money, but also had direct profit from it. Otherwise, we will be talking about negligence or other types of offenses not related to theft of funds.
Additionally, those suspected of embezzlement of budget funds are often also charged with related actions: fraud, forgery of documents, forgery, creation of a criminal organization (if the person acted not independently, but by prior conspiracy), abuse of official position, etc. Naturally, these charges, if recognized by the court, aggravate the situation of the accused and make the punishment more severe. And if we take into account the very nature of the crime, it is almost impossible to commit it alone, without the use of forged documents and entrusted powers, therefore, in most cases, theft of public funds is not the only crime for the accused.
Commentary to Art. 285.1 Criminal Code
1. The objective side of the crime (the composition is a special norm in relation to Article 285 of the Criminal Code) involves an act in the form of an action: spending budget funds for purposes that do not comply with the conditions for their receipt, defined by the approved budget, budget list, notification of budget allocations, revenue estimates and expenses or other document that is the basis for receiving budget funds, committed on a large scale (note to Article 285.1 of the Criminal Code).
The non-target nature of spending is possible through a violation of the rule of targeting budget spending, enshrined in budget legislation.
2. The crime is over from the moment of misuse, i.e. debiting funds from the corresponding account.
Responsibility for theft of public funds
Theft of public funds, according to the article of the Criminal Code, is a fairly serious act with appropriate punishment for the perpetrator. Depending on the size of the stolen goods and the circumstances of the case, the punishment may be as follows:
- if the crime was committed without aggravating circumstances, the perpetrator faces a fine of up to 120 thousand rubles, forced labor or imprisonment for up to two years;
- if the offense was committed as part of an organized group, and the amount of damage is significant (determined in each specific case, based on a number of factors) - a fine of up to 300 thousand rubles, forced labor, restriction or imprisonment for up to five years;
- if the amount of damage is recognized as large (over 250 thousand rubles) or especially large (over 1 million rubles), the crime was committed using an official position, the perpetrator faces the maximum punishment provided for in the article - up to 10 years in prison, a fine of up to 1 million rubles.
In addition, additional sanctions may be applied to persons found guilty under the above articles - confiscation of property acquired illegally, a ban on holding certain positions or working in certain areas, restriction of financial transactions, etc. The need for additional punishment is determined by the court based on the circumstances of the case, the identity of the accused, the damage caused, etc.
Second commentary to Art. 285.1 of the Criminal Code of the Russian Federation
1. In accordance with Art. 289 of the Budget Code of the Russian Federation, misuse of budget funds is understood as the direction and use of them for purposes that do not correspond to the conditions for receiving these funds, which entails administrative, and if there is a crime, criminal liability of the managers of the recipient of budget funds.
2. The direct object of this crime is the interests of state power in terms of exercising state control over the execution of the budget and the use of budget funds. The property interests of individuals and legal entities in whose interests budget funds were allocated can act as optional objects.
3. The subject of the crime is budget funds allocated for specific purposes, which are determined by the approved budget, budget schedule, notification of budget allocations, estimates of income and expenses, or other legal grounds for receiving such funds.
4. The objective side is characterized by actions consisting of spending (BC defines it as the direction and use) of budget funds for purposes that do not correspond to the conditions for their receipt, which are determined by the approved budget, budget schedule, notice of budget allocations, estimates of income and expenses or other documents , which are the basis for receiving budget funds.
5. Spending of budget funds consists of three stages:
1) acceptance by the recipient of budget funds of a monetary obligation by drawing up a payment document necessary to make expenses and payments;
2) confirmation of a monetary obligation;
3) debiting funds from the account.
From the moment funds are written off from the account for purposes that do not comply with the conditions for their receipt, the analyzed crime is considered completed.
A mandatory feature of the crime being analyzed is a large amount of budget funds spent for other purposes, meaning that their amount exceeds 1.5 million rubles (note to Article 285.1 of the Criminal Code). Inappropriate spending of budget funds in a smaller amount entails administrative liability under Art. 15.14 Code of Administrative Offences.
6. The subjective side is characterized by direct intent.
7. The subject of the crime is special: an official of the recipient of budget funds, whose competence includes monitoring the expenditure of budget funds.
8. Qualified types of crime mean its commission: a) by a group of persons by prior conspiracy;
b) in an especially large amount (i.e. in an amount over 7.5 million rubles - note to Article 285.1 of the Criminal Code).
Help from a criminal lawyer
If you are accused of embezzlement of budget funds, you do not need to wait until the case comes to court - even if you are innocent, you do not need to try to prove it yourself, most likely this will not work without experience and knowledge in the field of criminal law. The first thing to do in such a situation is to find an experienced embezzlement lawyer and turn to him for help. The defense attorney needs to outline all the circumstances of the case known to you: when the charges were brought forward, what exactly their essence is, whether you know anything about the episodes appearing in the case or not, etc. Based on the information presented, the lawyer will be able to build a line of defense suitable for the given case: if the client is not guilty at all, he will look for evidence of innocence and try to close the case; if guilt cannot be completely ruled out, he will do everything to reduce the severity of the punishment (for example, by looking for mitigating circumstances) . In any case, the main goal of the lawyer is to minimize the negative consequences for the client.
If the case still goes to court, the lawyer will represent your interests at all investigative activities (interrogations, experiments, examinations, etc.), monitor compliance with the laws in relation to the client, and record possible violations by law enforcement officers. As a result, this can greatly help at trial by mitigating the punishment (say, by replacing a prison sentence with a fine or probation) or getting rid of it altogether. Thus, it can be argued that only the participation of an experienced criminal lawyer in the process will help to most effectively protect your interests.
Conclusion
Theft of public funds is a fairly serious crime, for which strict sanctions are provided: up to 10 years in prison. Therefore, if you are faced with such a charge, you cannot hesitate; you must immediately seek help from an experienced lawyer. This is the only way to prove your innocence or achieve a minimally severe punishment.
Arbitrage practice
Currently, quite a lot of cases of this type are being considered in the courts. The essence of many of them comes down to incorrect KOSGU. Some concern the misuse of the CBC. There are also cases when a budgetary institution received money for some service and then spent it on its needs. According to the law, funds must be redirected to the budget, and only then issued to the organization for expenses.
Every year, the budget organization draws up a spending plan. The specified amount must not be exceeded under any circumstances. If there is an overspending, this is automatically a reason to consider the situation in court.
The statute of limitations for misuse or theft of budget funds is 6 years. Each violation of the above is considered privately, and even experienced lawyers are not always able to predict the outcome of the trial.
Such cases are considered according to certain rules. For a defendant to be found guilty, the grounds for imposing punishment must converge on one criminal act.
Such grounds are:
- the defendant is an official who has the right to independently dispose of budget revenues;
- the defendant must be aware at the time of committing the action what changes they will entail.
Obviously, only a high-ranking official can be the subject of a criminal act, because an ordinary employee does not have the right to dispose of funds at his own discretion. As far as awareness of the consequences is concerned, everything is much simpler. The fact of awareness is often confirmed by the position. An incompetent employee simply cannot occupy it.
The main feature of such cases is that the accused has the opportunity to challenge the conclusions of the supervisory authority before the consideration of the case, and in court. The offending organization and the official are given five days to challenge the findings of the controlling organization. Next, the case is sent to the court, whose decision may impose criminal liability.
Misuse of budget funds
In this case, two types of liability are possible: administrative and criminal.
Administrative liability is provided for in Article 15.14 of the Code of Administrative Offenses of the Russian Federation. It occurs when budget funds are directed and obligations are paid for purposes that do not correspond to budget goals. Simply put, money is spent in whole or in part for purposes other than those for which it was received. Both the official who committed the violation and the organization (institution, authority) in which this official works can be held accountable. Fine for individuals – 2-50 thousand rubles . Instead of a fine, disqualification for a period of 1-3 years is possible. Responsibility for organizations is only penalties, which amount to 5-25% of the amount spent inappropriately.
People are held administratively liable on a residual basis – if there is no criminal offense. Criminal liability (Article 285.1 of the Criminal Code of the Russian Federation) arises for the same actions, but committed on a large scale (1.5 million rubles and more) or especially large (7.5 million rubles and more). In this case, a specific official of the recipient of budget funds will be responsible.
The punishment varies:
- In case of large amounts of non-targeted expenses (Part 1 of Article 285.1):
- a fine of 100-300 thousand rubles or in the amount of salary for 1-2 years;
- forced labor for up to 2 years with or without disqualification for up to 3 years;
- arrest up to 6 months;
- imprisonment for up to 2 years with or without disqualification for up to 3 years.
- When committing a crime under Part 1 of Art. 285.1, by a group of persons by prior conspiracy or in case of a particularly large amount of inappropriate spending, the possible punishment will be greater:
- a fine of 200-500 thousand rubles or in the amount of salary for 1-3 years;
- forced labor for up to 5 years with or without disqualification for up to 3 years;
- imprisonment for up to 5 years with or without disqualification for up to 3 years.
In case of misuse of extra-budgetary funds (PFR, FFOMS, Social Insurance Fund) on a large or especially large scale, criminal liability arises under Art. 285.2 of the Criminal Code of the Russian Federation. This provision provides for similar sanctions. Here, inappropriate spending refers to those that do not correspond to the goals and conditions of spending established by laws and the fund’s budget.
Bringing to administrative or criminal liability does not exclude other negative consequences. Thus, the guilty official may be subject to disciplinary action. In turn, an organization that misuses funds allocated from a higher budget may subsequently lose funding for certain purposes or receive it in a reduced form.
Types of inappropriate spending
There are a huge number of ways to intentionally, through ignorance or carelessness, use funds for other purposes. .
The most common types of misuse are identified:
- sending money to pay for purchases or work that were not specified in the plan of financial and economic activities for the current year;
- unauthorized transfer of money between expense items (for example, money was allocated to equip a hospital with new equipment, but was transferred to repair a road; this is possible, but requires special sanctions);
- transfer of money to pay for items of expenditure that should have been covered by a budget of another level or an extra-budgetary fund;
- payment for work and services that are not directly or indirectly related to the work of the organization;
- free repayment of debts on utility bills of third-party consumers, for example, tenants;
- financing of objects under construction in excess of amounts, the value of which is stated in pre-agreed design and estimate documents.
The above list is not exhaustive. There are many more ways to use budget funds for other purposes.
