The accused has the right to know what he is accused of (clause 1, part 4, article 47 of the Code of Criminal Procedure of the Russian Federation). Otherwise, how can he defend himself against the charges brought against him? You present him with such a charge that it specifically describes point by point what crime he committed and how he committed it.
What do we have instead, especially for complex crimes (official, economic)? We have a pile of tricky word forms, sentences half a page long, densely sprinkled with articles of laws, numbers and rubbish that are not related to the matter.
Does the investigator try to make his accusation clear to the accused? No, on the contrary, he mixes such a “porridge” that even the judge will not understand. Nobody reads.
The accused thinks that writing is supposed to be so sophisticated, it’s not for nothing that lawyers study at their universities - they are obviously taught some special bird language there, incomprehensible to mere mortals, such as medical Latin.
Prosecutors and judges don’t read either, because... why the hell should they! No one will understand anything anyway.
The defense has to read, wading through the investigator's verbiage. And sometimes in this impassable place it is possible to find treasures that allow one to overturn an illegal accusation. To help the defense here is judicial practice, which nevertheless forms some idea of the individual supporting points that the prosecution must have , without which the prosecution machine will not move.
This is what the story is about. But first, a little history.
What officials abuse
Officials have always abused their status. And this was always assessed negatively. Because they must serve their homeland, not their own whims. Your homeland has given you power and authority - use them for the good of the fatherland, and not for your own self-interest.
And such abuses have always been regarded as crimes in the event of socially dangerous consequences. But let's see what revolution took place in the criminal law on this issue in 1996, when the current Criminal Code of the Russian Federation appeared.
Subject of the crime
Art. 285 of the Criminal Code of the Russian Federation applies to citizens who temporarily, permanently or by special authority exercise the functions of government officials performing administrative, economic or organizational and administrative tasks in government agencies, local government structures, municipal or state institutions, state corporations, state-owned enterprises, including unitary ones, in joint-stock companies , a controlling stake of securities in which belongs to the state, regions or municipalities. The norm also applies to employees of the Armed Forces and other military units of the country.
Employees of federal and regional bodies should be understood as employees occupying positions established by the Constitution and the charters of the constituent entities of the Russian Federation for the direct implementation of the powers of government agencies. Municipal and civil servants are held accountable in cases specifically provided for by law. According to general rules, they do not belong to the category of officials in the context of Art. 285. There must be appropriate circumstances to impose punishment on them.
What happened
Under the Soviet (and immediately post-Soviet) government, the Criminal Code of the RSFSR had Article 170, which was called “Abuse of power or official position .”
Do you have power ? an official position ? Did you use them contrary to the interests of the service for your own personal gain, resulting in the consequences described in the article? Sushi crackers.
What did this look like in practice? The head of the criminal investigation department comes into the car service: “So, Chaldeans, who I am, does everyone know? Here are the keys to the car. So that by the evening it will be like new! Any questions?"
He pressed with authority. With your position and your power .
Additionally
Article 285 of the Criminal Code of the Russian Federation also applies in cases of intentional failure by an employee to fulfill his duties. In this case, responsibility arises if such inaction was committed for selfish purposes or for other personal interests, was not objectively consistent with the tasks for the implementation of which the citizen received his status, and entailed a violation of the interests and rights of the state, organizations, society, and individual citizens.
Protectionism also falls under the norm under consideration. It should be understood as illegal assistance in employment or promotion, encouragement of an employee, as well as other patronage committed out of self-interest or other personal interest.
What happened
The Criminal Code of the Russian Federation (since 1996) is different. Article 285 is formulated similarly, but in one important point it is fundamentally different, as can be seen from its name - “Abuse of official powers .”
The authority is now in the law instead of power and official position . And if you have both power and position , but powers , there is no corpus delicti.
And therefore, according to the current law, the mentioned head of the criminal investigation department is innocent, because, I repeat, he used his position , power and authority, but not his official powers .
Commentary to Art. 285 of the Criminal Code of the Russian Federation
The main object of abuse of official powers is the activities of the public apparatus of power and administration carried out in accordance with the law. An additional object is the constitutional rights of man and citizen, economic and other interests of citizens, organizations and the state protected by law.
The objective side of the crime consists of three mandatory features: 1) the commission of an act (action or inaction) - the use by an official of his official powers contrary to the interests of the service; 2) the occurrence of consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state; 3) cause-and-effect relationship between the act and the consequence.
The use by an official of his official powers should be understood as the commission by him illegally, contrary to the interests of the service, of actions within the scope of his official duties, or the failure to perform actions that the official was obliged to perform by virtue of his position.
This circumstance was also noted in 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 forgery.” Paragraph 10 of this Resolution states that, in accordance with the law, such actions of an official that arose from his official powers and were associated with the exercise of the rights and obligations with which this person is endowed by virtue of his position can be recognized as abuse of office.
However, in cases where the actions of an official related to the violation of his official powers were committed in order to prevent harmful consequences that were more significant than the harm actually caused, when this could not be done by other means, such actions in accordance with the legislation on extreme necessity are not may be considered criminal.
The powers of an official are determined by his competence, i.e. a range of rights and obligations enshrined in the relevant legislative and other regulatory legal acts, departmental, local documents, etc. When holding a person accountable for abuse of official powers, it is necessary to establish the range and nature of the official rights and duties of the official, the regulations governing them, the motive, purpose and actual circumstances of the act committed, the existence of a causal relationship between the violation (non-fulfillment) of the official’s duties and the resulting harmful consequences. An indication of the specific act that gives the person the appropriate powers, as well as the specific rights and obligations that the person has illegally used, is mandatory.
As indicated by the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the resolution on bringing as an accused and the indictment must contain references to legal acts by virtue of which the official is endowed with certain powers, as well as specific duties and rights, the abuse of which is contrary to the interests of service is blamed on him. Failure to comply with this requirement entails an acquittal for lack of corpus delicti.
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Ruling of the Supreme Court of the Russian Federation of July 19, 1999 // Bulletin of the Supreme Court of the Russian Federation. 2000. N 8. P. 12 - 13.
It should also be noted that if, in order to achieve a criminal result, a person does not use the official powers assigned to him, but some connections in the service, the authority of the position he holds, etc., then there is no corpus delicti of this crime.
Committing an act contrary to the interests of the service means that a person acts within the framework of the powers granted to him, but his actions contradict the goals and objectives set for the relevant body or institution. The interests of a particular body or institution lie in achieving the goals for which they were created, in the full and timely implementation of the tasks facing them, and are ensured through the activities of officials. Therefore, the violation by the latter of his official duties, if this is not caused by official necessity, should be considered as an act contrary to the interests of the service.
Abuse of official powers can be expressed in various forms and methods of committing a crime. For example, in the concealment by a tax inspector of the fact of non-payment of taxes by persons close to him; the use by an official of the labor of subordinates in his personal interests during the construction of his own house; concealment of facts of committing crimes due to poorly organized work to uncover them in order to avoid disciplinary liability; concealing the fact of a shortage of property (for example, non-residential premises) that is on the balance sheet of a certain body or institution and was lost in the process of its use (for example, burned due to non-compliance with fire safety rules); use for personal purposes of property allocated to a certain body or institution for the performance of official activities; issuing illegal orders and regulations that caused significant harm; connivance in the commission of offenses by other persons on the part of an official obliged to exercise appropriate control over their actions, etc.
In addition to the commission of an act in the form of an official using his official powers contrary to the interests of the service, a mandatory element of the objective side of the crime is a consequence in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, which is in a cause-and-effect relationship with the act. A significant violation of rights and legitimate interests is an evaluative concept, therefore, the issue of the existence of such a significant violation must be decided on the basis of the specific circumstances of the case, however, in each case, the materiality of the violation of rights and legitimate interests must be justified in the verdict. Merely indicating in a sentence that significant harm has been caused to the legally protected interests of citizens, organizations and the state is not enough; this formulation is general, and if it is not established what exactly the damage is and to whom it is caused, there is no justification for the significance of the damage caused.
Violation of the constitutional rights and freedoms of a person and a citizen, causing him physical harm in the form of beatings, torture, and minor harm to health is significant; illegal obstruction of business or other economic activity, illegal restriction of competition, resulting in large losses. A significant violation of the interests of society or the state protected by law can be expressed in undermining the authority of authorities, undermining the normal activities of a state (municipal) body, for example the prosecutor's office - for the rapid and complete disclosure of crimes, creating significant interference and disruptions in the work of state and municipal structures, concealing serious crimes and so on.
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See: Review of the supervisory practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2002 // Bulletin of the Supreme Court of the Russian Federation. 2003. N 9. P. 17.
In 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 forgery” about.
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Bulletin of the Supreme Court of the USSR. 1990. N 3.
Abuse of official powers is one of the crimes with material elements. It is considered completed from the moment the consequences occur in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. In the absence of this consequence, official misconduct occurs, entailing disciplinary liability, but not a crime.
From the subjective side, a crime is characterized by a deliberate form of guilt in the form of both direct and indirect intent. The guilty official is aware that he is using the official powers granted to him contrary to the interests of the service, foreseeing a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, desires the occurrence of these consequences (direct intent) or consciously allows the consequences or relates to their occurrence indifferent (indirect intent).
A mandatory feature of the subjective side is a motive - selfish or other personal interest. Selfish interest is expressed in the desire to obtain property benefits without illegal gratuitous seizure and circulation of someone else’s property for one’s own benefit or for the benefit of others (for example, during the construction of a house, an official illegally exploits the labor of his subordinates, thereby being freed from the costs of paying for contract work; having the authority to distribution of the state (municipal) housing stock, an official illegally establishes an extraordinary procedure for obtaining an apartment for his relative; in order to avoid financial liability, he hides the lack of material assets, etc.). If the use by an official of his official powers is a method of theft, then the elements of the analyzed crime are absent. What was done in this case should be qualified under Part 3 of Art. 159 or part 3 of Art. 160 of the Criminal Code of the Russian Federation.
Another personal interest is expressed in the desire to extract non-property benefits. Such a desire can be due to various motives: careerism, protectionism, nepotism, the desire to hide one’s incompetence, to avoid disciplinary liability for violations, mistakes in work, to receive support from influential people, revenge, envy, etc.
When considering cases of abuse of power, establishing the motive of selfish or other personal interest that guided the person in committing the crime is mandatory. The verdict must also indicate what exactly such a motive was expressed. In the case where a person uses his official powers contrary to the interests of the service, but does not seek to obtain any personal benefits as a result (his motive is, for example, the falsely understood interests of a state (municipal) body or institution), there is no corpus delicti.
The subject of the crime in question is a special one - an official.
Part 2 Art. 285 of the Criminal Code of the Russian Federation provides for a qualified offense of abuse of power, which differs from the main offense by the special status of the subject. Here, the subject is an official holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, as well as the head of a local government body.
The definition of persons holding public positions in the Russian Federation and constituent entities of the Russian Federation, as stated above, is given in notes 2 and 3 to Art. 285 of the Criminal Code of the Russian Federation.
When considering the issue of the subject of abuse of official powers, it should be borne in mind that, within the meaning of the law, to initiate a criminal case on the grounds of crimes provided for in Part 2 of Art. 285 and part 2 of Art. 286 of the Criminal Code of the Russian Federation, the identification of a specific official holding a public position and committing abuse and excess is mandatory. Initiating a criminal case based on abuse by an indefinite number of persons is illegal.
A particularly qualified type of abuse of power (Part 3 of Article 285 of the Criminal Code of the Russian Federation) is the commission of an act provided for in Part 1 or 2 of Art. 285 of the Criminal Code of the Russian Federation, which entailed grave consequences. This sign is evaluative and is established taking into account the specific circumstances of the crime. In the previously mentioned Resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 No. 4, it is recommended to classify as grave consequences such as: violation of the constitutional rights and freedoms of a large number of people, major accidents, disorganization, complete stoppage of the work of a state (municipal) body or institution , causing material damage on an especially large scale, etc. The crime under Part 3 of Art. 285 of the Criminal Code of the Russian Federation, is intentional and cannot be considered as committed with two forms of guilt (Article 27 of the Criminal Code of the Russian Federation).
It should be noted that the norm on liability for abuse of official powers is common to most of the norms on crimes of Chapter 30 of the Criminal Code of the Russian Federation (with the exception of Articles 288, 291, 293 of the Criminal Code of the Russian Federation). These norms contain special types of abuse of office, therefore, according to the rule established in Part 3 of Art. 17 of the Criminal Code of the Russian Federation, criminal liability occurs only according to a special norm, combined with Art. 285 of the Criminal Code of the Russian Federation is missing. The actions of a person are classified as a set of crimes only if the abuse of official powers forms an independent crime and such a set is real.
The elements of abuse of official powers should be distinguished from the elements of abuse of official powers. In this case, one should proceed from the fact that in the first case, the official illegally, contrary to the interests of the service, uses the rights and powers granted to him by law, and in the second, he commits actions that clearly go beyond his official competence (which relate to the powers of another official or could be committed by the official himself only in the presence of special circumstances specified in the law or by-law, as well as actions that no one has the right to commit under any circumstances).
And that means...
This means that the investigator, involving an official under Art. 285 of the Criminal Code of the Russian Federation, must specifically indicate in the accusation what powers it abused .
This is what the Plenum of the Supreme Court of the Russian Federation said in paragraph 22 of Resolution No. 19 of October 16, 2009 “On judicial practice in cases of abuse of power and exceeding official powers”: ... the courts must find out which normative legal acts, as well as other documents, establish rights and the duties of the accused official, citing them in the verdict and indicating the abuse of which of these rights and duties... he is charged with, with reference to specific norms (article, part, paragraph) .
If the indictment does not contain... the specified data , which cannot be replenished at a court hearing, the criminal case must be returned to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure of the Russian Federation to remove obstacles to its consideration by the court.
The powers used for evil are not indicated? The case needs to be “reworked” for the investigator! Let him point. Can't specify? What crime are we talking about then?
This is what happened in the case, the documents from which are attached to the publication. The investigator wrote a lot of things in the indictment, but forgot the powers he misused. The court, with a clear conscience, returned the case to the prosecutor.
True, for the sake of the clear conscience of the court, there was one more violation in the charge, a very curious one, which caught my eye as soon as I first picked up the indictment. Honestly, I couldn’t believe my eyes; after all, it was signed by the regional prosecutor.
The Supreme Court specified the harm
The Supreme Court emphasizes that one of the mandatory signs of abuse of power is causing “significant harm to the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.” If we are talking about abuse of power in the implementation of a state defense order, then “causing significant harm to the legally protected interests of society or the state in this area, including the defense capability and security of the country.”
Resolution of the Plenum of the Supreme Court
In relation to Art. 201 of the Criminal Code (abuse of power) it is necessary to take into account, in particular, the number of injured citizens, the severity of the physical, moral or property harm caused to them, the degree of negative impact of the unlawful act on the normal operation of the organization (for example, when the act led to the suspension of the organization’s activities or undermined its business reputation) , the nature and extent of the material damage suffered by it.
In the case of abuse of power by private notaries or auditors, the courts must proceed from the significance of the violated right and legitimate interest for a particular victim, the amount of property damage caused to him. Here the Supreme Court includes “termination of rights to property as a result of certification of a transaction that does not comply with the law, as well as in the absence of one of the parties to the transaction or the necessary documents” and “the loss of the right to inheritance by a notary as a result of a notary issuing a certificate of the right to inheritance to an obviously improper person.”
“Significant harm” as a result of abuse of authority in the execution of a state defense order is expressed, according to the Supreme Court, in “significant costs associated with the elimination of defects made by the contractor during the performance of work or in the manufacture and delivery of low-quality products, in the postponement of military exercises or other events of a military nature, caused by a violation of the deadlines for the supply of weapons, military or other property.”
Mandatory features include the goals of “deriving benefits and advantages for oneself or other persons” (Articles 201, 201.1, 202 of the Criminal Code), as well as “causing harm to other persons” (Articles 201, 202 of the Criminal Code). Here we can talk about “causing moral suffering to them” and “creating an obstacle to their realizing their constitutional rights.”
According to Konstantin Rivkin, it is important that the Plenum tries to define such evaluative concepts as “the goal of extracting benefits and advantages for oneself or other persons” and “severe consequences” (termination of the organization’s activities or bringing it to a state of insolvency - approx. “AU”) . “It is obvious that such guidelines should contribute to compliance with the uniform practice of applying Art. 201 of the Criminal Code and become a barrier to unjustified criminal prosecution,” the lawyer believes.
Consequences
Sentences under Art. 285 of the Criminal Code of the Russian Federation are issued when it is established that damage has been caused to the interests and rights of citizens, the state, society, and organizations. We are talking, in particular, about legal opportunities guaranteed by the Constitution and federal legislation. For example, the actions of an employee may violate the right to respect for a person’s dignity and honor, inviolability of home, privacy, privacy of correspondence, telegraphic, postal messages, telephone conversations, judicial protection, compensation for harm caused by an act, access to justice, and so on.
Violation of the legitimate interests of organizations and citizens as a result of the unlawful use of official status is considered to be the creation of obstacles in meeting needs that do not contradict the norms of law and morality. For example, actions that block the ability to choose an organization for cooperation at your own discretion, committed by an employee of a government agency, fall under the commented norm. Judicial practice under Art. 285 of the Criminal Code of the Russian Federation indicates the need to take into account the degree of negative impact of unlawful behavior on the normal operation of enterprises, the size and nature of the material damage suffered by them, the number of injured citizens, as well as the severity of the property, moral, and physical damage caused to them.
