1. Expenditure of budgetary funds by an official of the recipient of budgetary funds for purposes that do not comply with the conditions for their receipt, determined by the approved budget, budget schedule, notice of budgetary allocations, estimates of income and expenses, or other document that is the basis for receiving budgetary funds, committed on a large scale , —
shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to two 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 arrest for a term of up to six months, or imprisonment for a term of up to two 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.
2. The same act committed:
a) by a group of persons by prior conspiracy;
b) on an especially large scale, -
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, or 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 it.
Note. In this article, as well as in Article 285.2 of this Code, a large amount is recognized as an amount of budget funds exceeding one million five hundred thousand rubles, and an especially large amount is seven million five hundred thousand rubles.
- Article 285. Abuse of official powers
- Article 285.2. Misuse of state extra-budgetary funds
Commentary to Art. 285.1 of the Criminal Code of the Russian Federation
The object of the crime under Art. 285.1 of the Criminal Code of the Russian Federation - activities of the public apparatus of power and management in the field of budgetary relations that comply with the law.
The subject of the crime is budgetary funds (budgetary allocations) - funds from budgets of various levels, with the exception of funds from state extra-budgetary funds.
One of the conditions for the normal functioning of the public apparatus of power and administration is the financing of its activities by the state through the provision of appropriate budgetary funds.
A budget is a form of formation and expenditure of a fund of funds intended for financial support of the tasks and functions of the state and local government (Article 6 of the Budget Code of the Russian Federation). The budget system of the Russian Federation consists of budgets of three levels:
———————————
NW RF. 1998. N 31. Art. 3823.
— federal budget and budgets of state extra-budgetary funds (developed and approved in the form of federal laws);
— budgets of the constituent entities of the Russian Federation and budgets of territorial state extra-budgetary funds (developed and approved in the form of laws of the constituent entities of the Russian Federation);
— local budgets (developed and approved in the form of legal acts of representative bodies of local self-government or in the manner established by the charters of municipalities).
The budget system of the Russian Federation is based on the principles listed in Art. 28 BC RF. One of them is the principle of targeting and targeted nature of budget funds, according to which budget allocations and limits of budget obligations are brought to specific recipients of budget funds, indicating the purpose of their use (Article 38 of the Budget Code of the Russian Federation).
The objective side of the crime under consideration is expressed in the action - expenditure (spending) of budget funds for purposes that do not meet the conditions for receiving these budget funds, committed on a large scale. The specified conditions are determined by the approved: budget, budget schedule, notice of budget allocations, estimate of income and expenses, or other document that is the basis for receiving budget funds.
A budget is a document about the formation and expenditure of the entire fund of funds. The budget list is intended for its practical implementation and is a document on the distribution of budget income and expenses, establishing the distribution of budget allocations between recipients of budget funds.
The budget list is compiled and maintained by the main manager of budget funds, depending on the level of the budget system: a federal government body, a government body of a constituent entity of the Russian Federation or a local government body (the main manager can also be the most significant institution of science, education, culture and health care, specified in the departmental structure of budget expenditures). In accordance with the budget schedule, the main manager distributes budget funds between subordinate managers and (or) recipients of budget funds. The manager of budget funds (state authority, local government body, budgetary institution), in turn, distributes budget funds received from the main manager among the direct subordinate recipients of budget funds.
The recipient of budget funds is: a state authority, a local government body, as well as a budget institution under the authority of the main manager (or manager) of budget funds, which have the right to accept and (or) fulfill budget obligations at the expense of the corresponding budget. A budgetary institution is recognized as a state (municipal) institution, the financial support for the performance of its functions, including the provision of state (municipal) services to individuals and legal entities in accordance with the state (municipal) assignment, is carried out at the expense of the corresponding budget on the basis of the budget estimate .
Budgetary indicators are communicated to all lower-level managers and recipients of budgetary funds in the form of a special document - a notification of budgetary allocations (i.e., the amount of allocated budgetary funds). Having such information, the budgetary institution draws up an estimate of income and expenses, which is then approved by a higher manager of budgetary funds. An estimate of income and expenses is a financial document containing information about the formation and expenditure of funds. It must reflect all income of a budgetary institution: received both from the budget and state extra-budgetary funds, and from carrying out entrepreneurial and other income-generating activities. A budgetary institution is obliged to use budget funds strictly in accordance with the approved budget.
For criminal liability to arise, a necessary condition is a large amount of misappropriation of budget funds. In accordance with the note to Art. 285.1 of the Criminal Code of the Russian Federation, a large amount is recognized as an amount of budget funds exceeding one million five hundred thousand rubles.
According to the construction of the objective side, the corpus delicti is formal. The crime is completed from the moment budget funds are directed to purposes not provided for by the relevant document, i.e. from the moment they are written off from the personal account of a budgetary institution.
The subjective side of the crime is characterized by direct intent. The guilty person realizes that he is spending allocated budget funds for purposes that do not correspond to the conditions for their receipt, and wants to commit these actions. The motives for actions do not matter for the qualification of an act. This may be personal interest, falsely understood interests of the service, etc. However, if misappropriation of funds is carried out in order to prevent the occurrence of more significant harm, the actions of the perpetrator should be considered taking into account the rules of Art. 39 of the Criminal Code of the Russian Federation (extreme necessity), for example, on the eve of the coming winter, a person sends funds to ensure the heating season instead of building a section of the road.
The subject of the crime is a special one - an official of the recipient of budget funds who has the right to sign the relevant expenditure documents.
Part 2 Art. 285.1 of the Criminal Code of the Russian Federation provides for stricter liability for misuse of budget funds committed by a group of persons by prior conspiracy (Part 2 of Article 35 of the Criminal Code of the Russian Federation) or on an especially large scale (in accordance with the note to Article 285.1 of the Criminal Code of the Russian Federation - in an amount exceeding seven million five hundred thousand rubles).
Administrative responsibility for misuse of budget funds
What will be the fine for misuse of budget funds?
Note!
Both an official and a legal entity can be held administratively liable for misuse of budget funds.
According to Art. 15.14 of the Code of Administrative Offenses of the Russian Federation, punishment for misuse of budget funds is divided for officials and for legal entities:
for an official is assigned in the form of:
- administrative fine from 20 thousand to 50 thousand rubles;
- professional disqualification from 1 to 3 years;
for a legal entity:
- a fine ranging from 5 to 25% of the amount of funds used for other purposes.
Judicial practice under Article 285.1 of the Criminal Code of the Russian Federation
Determination of the Constitutional Court of the Russian Federation dated June 27, 2017 N 1416-O
As follows from the presented materials, by the court verdict of August 12, A.A. Migulya was convicted of committing crimes, including those provided for in paragraph “b” of part two of Article 285.1 “Misuse of budget funds” of the Criminal Code of the Russian Federation. The appellate instance, having established that the relevant act was committed by A.A. Miguley in the period from June 8, 2006 to December 26, 2006, a criminal case on his grounds was initiated on July 20, 2011, and due to evasion of criminal prosecution in another criminal case, he was put on the wanted list on May 30, 2011 and detained on May 12 2015, came to the conclusion that the statute of limitations for criminal prosecution did not include the time from the date of initiation of the criminal case until the arrest of the accused. Taking into account the fact that the statute of limitations for bringing to justice for the crime provided for in paragraph “b” of part two of Article 285.1 of the Criminal Code of the Russian Federation expired during the period of appeal, the court, by an appeal ruling dated February 15, changed the sentence, releasing A.A. Quickly from the punishment imposed for committing this crime.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated March 14, 2017 N 46-UD17-6
In the cassation appeal, the convicted Sorochaykin A.N. challenges the legality and validity of the court decisions taken against him and asks for their review, indicating that the court's conclusions about his guilt in committing fraud do not correspond to the actual circumstances of the case; the verdict and subsequent court decisions are subject to review due to incorrect application of the criminal law; the sentence against him is unfair and was passed in violation of Art. 297 Code of Criminal Procedure of the Russian Federation; his actions upon receipt of the subsidy should be qualified under clauses “a”, “b”, part 2 of Art. 285.1 of the Criminal Code of the Russian Federation, asks to terminate the criminal case on this act due to the expiration of the statute of limitations, or to reclassify his actions on this fact under Art. 159.4 of the Criminal Code of the Russian Federation; claims that he was unfoundedly convicted for this act, since in the case materials there is an unreversed decision to terminate criminal prosecution against him due to the absence of corpus delicti in his actions; in connection with the theft of funds from citizens participating in shared construction, the verdict was based on an act of comprehensive accounting and construction expertise, which was carried out in violation of Art. 198 of the Code of Criminal Procedure of the Russian Federation, while the expert opinion cannot be considered reliable and admissible evidence; draws attention to the fact that the court did not specify his actions and, accordingly, his guilt in committing the crimes charged against him was not established; a number of contracts, the failure of which he was charged with, were concluded by other construction organizations, but the court did not take this fact into account; believes that the court incorrectly qualified his actions under Part 4 of Art. 159 of the Criminal Code of the Russian Federation, since they were committed in the field of entrepreneurial activity. In addition, it indicates that the court overestimated the amount of the civil claim in favor of the CJSC "...", and also did not provide evidence of the stated claims; asks to lift the seizure of the property of individuals who are not convicted in this case and to mitigate the punishment.
Resolution of the Presidium of the Supreme Court of the Russian Federation dated October 13, 2021 N 44-P21
according to Part 2 of Art. 285.1 of the Criminal Code of the Russian Federation for 2 years; on the basis of Part 2 of Art. Criminal Code of the Russian Federation for aggregation of crimes for 2 years 6 months with deprivation of the right to occupy leadership positions in state municipal bodies for a period of 2 years.
KOSGU
In accordance with Art. 18, clause 1 of the BC, budget classification is used for the preparation and subsequent execution of income and expense items. It is presented in the form of a grouping of revenues, costs and sources of covering deficits. It also includes a classification for operations in the public administration sector (KOSGU). The procedure for its application is approved by the Ministry of Finance. In particular, for financial departments, lists of expenses are established that must be allocated to certain sub-articles and articles of KOSGU.
The grouping of operations in this classification is carried out depending on their content. Moreover, each article and subarticle contains a brief description of the process. As for costs, operations in them are characterized by lists of areas for spending finances. For effective planning and proper execution of the budget, issues related to the reflection of costs under articles or subarticles of KOSGU can be regulated by the budget estimate, state assignment, methodological instructions (recommendations) of the manager and other documents that act as the basis for receiving the corresponding revenue.
The inclusion of material assets in the corresponding group of non-financial assets (inventories or fixed assets) is within the competence of the budgetary institution. It makes one decision or another, guided by instruction No. 157n. This takes into account the purpose of the valuables and the procedure for their use.
