ST 286 of the Criminal Code of the Russian Federation.
1. The commission by an official of actions that clearly go beyond the scope of his powers and entail a significant violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person. for a period of up to six months, or deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or forced labor for a term of up to four years, or arrest for a term of four to six months, or imprisonment for a term of up to four years.
2. The same act committed by a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, as well as the head of a local government body, is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the salary or other income of the person convicted of a period of one to two years, or 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 period of up to three years or without it, or 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 period of up to three years or without it.
3. Acts provided for in parts one or two of this article, if they are committed: a) with the use of violence or the threat of its use; b) using weapons or special means; c) causing grave consequences - is punishable by imprisonment for a term of three to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Commentary to Art. 286 Criminal Code
1. The objective side is characterized by three mandatory features.
An act represents actions that clearly go beyond the authority of an official (committing a crime through inaction is impossible).
There are four typical forms of abuse of power:
actions relate to the powers of another official (superior or equal in status);
actions can be performed only in the presence of special circumstances specified in the law or regulation;
actions are performed by an official alone, but can only be carried out collectively or in accordance with the procedure established by law, in agreement with another official or body;
no one under any circumstances has the right to perform such actions (see paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19).
2. The crime is 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 addition, it is necessary to establish a causal connection between the act and the consequences that occurred. In the absence of consequences, the act usually constitutes a disciplinary offense or an administrative offense.
3. The subjective side is characterized by direct intent, in contrast to Art. 285 of the Criminal Code, motives do not matter for the qualification of a crime. At the same time, the person must be aware that he is committing actions that clearly go beyond his authority.
4. Special subject: official.
5. The signs of a qualified staff (Part 2) coincide with similar signs in Art. 285 CC; the signs of a particularly qualified composition (part 3) are disclosed in paragraphs 20 - 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19.
Who can be the subject of a malfeasance?
The subject of the crime is an official, that is, an employee vested with certain authority.
Within the framework of Chapter 30 of the Criminal Code of the Russian Federation, the following are recognized as officials:
- representatives of the authorities;
- employees with organizational and administrative powers;
- employees of administrative and economic structures.
The accused must work for government agencies, municipalities, state-owned companies or joint stock companies. This category also includes military personnel of all branches of the armed forces.
If you work in these structures, you must comply with job regulations and regulatory requirements. Violation of them may result in criminal liability. If you have any doubts about the legality of your actions, we recommend that you contact our lawyers. We will analyze your situation and advise you on the possible consequences of your action.
Second commentary to Art. 286 of the Criminal Code of the Russian Federation
1. The rights and legitimate interests of citizens and organizations act as an additional object, and under the circumstances provided for in Part 3 of Art. 286 of the Criminal Code, and the health of citizens.
2. The objective side is characterized by the commission of actions that clearly go beyond the authority of an official, and the onset of socially dangerous 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. If, in case of abuse of office, the culprit illegally, contrary to the interests of the service, uses the powers granted to him, then when exceeding his official powers, he commits actions that clearly go beyond the limits of his official competence. Therefore, when qualifying an act under Art. 286 of the Criminal Code, it is necessary to accurately establish the scope of the official’s powers, determined by law, charter, instruction, order or other regulatory act, and to find out which specific regulatory provisions were violated and what the violations were expressed in.
4. Exceeding official authority can be expressed in the following actions:
1) relating to the powers of another official (superior or equal in rank; of this or another department);
2) which could be committed by this official, but only in the presence of special conditions that were absent in the real situation (for example, the use of weapons against a minor, if his actions did not create a real danger to the lives of other persons; detention of a person in the absence of the grounds specified in Article 91 of the Code of Criminal Procedure of the Russian Federation);
3) constituting the exclusive competence of a collegial body, but committed by an official alone (for example, the sole drawing up of a verdict on the guilt of the defendant by the foreman of the jury);
4) which cannot be carried out by anyone and under any circumstances, since they are not within the competence of any official (for example, a personal search of its employees by the head of security of a state institution) (clause 19 of the resolution of October 16, 2009).
5. The crime should be considered completed from the moment the consequences specified in the law occur.
6. The subjective side of the crime is characterized by direct intent.
7. The subject of the crime is an official who does not hold public office or the position of head of a local government body.
8. The qualified elements of this crime (Part 2) are characterized by its commission by a person holding a public position in the Russian Federation, a public position in a constituent entity of the Russian Federation, or the position of the head of a local government body (see commentary to Part 2 of Article 285 of the Criminal Code).
9. A particularly qualified group (part 3) involves the commission of this crime:
a) with the use of violence or the threat of its use; b) using weapons or special means;
c) causing grave consequences.
The use of violence means physical influence on the victim by inflicting beatings, physical pain, mild or moderate harm to health, imprisonment, etc.
The threat of violence is a mental influence in which an official intimidates the victim with the actual use of any physical violence, up to the threat of murder.
The use of weapons or special means means their actual use for physical or mental influence on the victim: for intimidation (for example, shots over heads), for causing physical pain or harm to health, for restricting the personal freedom of the victim, etc.
Weapons are understood as objects and devices classified as weapons in accordance with the Federal Law “On Weapons” (for a more detailed description of weapons, see the analysis of Article 222 of the Criminal Code).
By special means we mean water cannons, tear gases, handcuffs, rubber sticks, special transport and other technical means of maintaining public safety, law and order and the personal safety of citizens, which are in service with the police, internal troops, and other state and municipal bodies (clause 20 of the resolution).
10. On causing grave consequences, see the commentary to Part 3 of Art. 285 CC.
What is malfeasance?
Malfeasance is understood as socially dangerous actions or inactions committed by citizens vested with authority, or employees of commercial organizations, contrary to official interests, which leads to negative consequences for third parties, companies, society and government agencies.
Characteristics of malfeasance include the following:
- acts are committed by government officials and employees using their official position;
- the crime encroaches on public relations for the legal, fair and effective implementation of state and municipal services;
- Victims are any citizens who have suffered from the unlawful actions of an employee and received material, moral or physical harm.
All elements of malfeasance are combined in Chapter 30 of the Criminal Code of the Russian Federation, which is devoted to encroachments on public relations in the field of state and municipal services.
If an employee commits an offense not related to official powers, the act does not constitute an official crime and its qualification should be carried out under the articles of other chapters of the Criminal Code of the Russian Federation.
If you are charged with committing a crime in office, use the help of SKP lawyers. We specialize in this category of case and help clients reduce or eliminate criminal sanctions as much as possible.
Legal advice on criminal liability for malfeasance
A timely contact with a qualified lawyer allows you to most competently build relationships with investigative authorities, prepare evidence of your innocence, and find mitigating circumstances. To obtain effective protection from criminal liability for malfeasance, contact the lawyers of SKP. Our experience and extensive practice in resolving such issues allow the client to get out of the situation with minimal losses. To receive legal assistance, fill out the feedback form or call. We will answer your questions at any convenient time.
Distinguishing abuse of power from abuse of power
The relevance of this work is determined by the increasing dynamics of malfeasance at all levels of government, which is confirmed by a review of judicial practice and data from many regions of the Russian Federation. Statistics of judicial practice in recent years, including for the three quarters of 2022, indicate a constantly growing number of administrative cases received in courts of general jurisdiction in disputes between citizens and representatives of the state - civil servants. Unfortunately, data regarding the number of crimes committed in the service do not provide an objective picture of the real state of affairs. This phenomenon is due to several factors. Firstly, the public nature of the activities of officials, which has a direct impact on the protection of the rights and freedoms of the state, citizens and society. Secondly, the legislation is subject to various costs, and there are also many procedural gaps, which make it difficult in court to objectively assess guilt, prove it and punish the perpetrator.
Many authors come to the conclusion that the imperfect legal framework and the difficult political and economic situation in Russia are fertile ground for the commission of offenses by officials at various levels, who initially stand guard over compliance with the law.
The chosen topic is relevant for two main reasons: moral and ethical and socio-political. Overcoming the confrontation between the population and the authorities is one of the primary tasks of modern government. The fight against illegal behavior on the ground, which is demonstrated by government officials, can have a positive impact on restoring the morality of the population, thereby developing intolerance towards illegal behavior not only among employees.
There are many questions regarding official offenses, or more precisely regarding the basis for their criminalization, the problem of qualifying crimes in this area and the differentiation of their responsibility. These aspects have always interested lawyers. The main ones arise when considering cases of excess and abuse of official powers. Based on the above, the above issues are increasingly becoming a topic of research. In recent years, the topic of offenses by employees has been considered within the framework of the criminal process, as well as in the administrative aspect, by many specialists, such as I. A. Gaag, E. N. Razygraeva, N. V. Miroshnichenko, A. V. Ivanchin, M. N. Kaplin , A. O. Dolgatova, A. A. Obukhov and others.
In 1892, N.I. Korkunov noted that the unlawful behavior of private individuals causes less damage to the authority of the law and the strength of the legal order, in contrast to the offenses of officials. Using power, officials can easily interfere with the protection of state interests, depriving private individuals of the protection of their legitimate rights and interests [5].
The same phenomenon was noted by N.P. Pechnikov in 2007. Most of the complaints received regarding offenses in the administrative sphere are aimed at unlawful actions of state and municipal employees, as well as regarding the recognition of regulatory legal acts as illegal (about 10 thousand cases annually) [6]. During the hearing of disputes regarding official offenses, the judiciary uses the right to judicial discretion, that is, the range of sentencing between the lowest and highest limits of guilt. It is necessary to note that, compared to the federal level, official crime in the regions is growing at a faster rate.
Criminal law norms have been actively subject to numerous changes and additions since 2008, specifically in relation to the consideration of official crimes. In this regard, numerous questions have arisen that affect the theory and practice of legal proceedings in this area. Analysis and finding solutions to practical problems are necessary for a detailed study of the problems of liability for official crimes. This is important for developing the ability to professionally understand the main directions for improving legislation in order to combat abuse and abuse of power. The study of the current issue is also relevant for concretizing the problems of exemption from criminal liability.
The classification of white-collar crimes continues to cause difficulties for lawyers, or rather, the lack of uniformity in investigative and judicial practice leads to an alternative response by the law enforcement officer in the process of considering and making a decision against the offender. The statement of E. A. Isayan regarding the existence in the current legislation of two compositions in Articles 285 and 286 of the Criminal Code of the Russian Federation [2] confirms the existence of the problem of distinguishing the abuse of official powers from their excess. Disputes also arise about the concept of an official, about the presence or absence of a motive in crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) and others. Without resolving these issues, it is impossible to effectively combat white-collar crimes [3].
Taking into account the problems in the work, attention is paid to distinguishing abuse from exceeding official powers, which are provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation. In many sources, the term “office crimes” refers to actions affecting the interests of the state, which are regulated by Chapters 23 and 30 of the Criminal Code of the Russian Federation.
In their current form, the rules for combating white-collar crime represent only a framework for combating employee misconduct. If it is applied correctly and effectively in practice, it will serve as the key to success in the fight against white-collar crime [3]. The listed reasons make this work relevant for prosecutorial, investigative, advocacy and judicial activities.
On October 30, 2009, the Russian newspaper published the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and exceeding official powers” (hereinafter referred to as the Resolution) [4]. Its requirements must be relied upon when investigating offenses and preparing indictments under Articles 285 and 286 of the Criminal Code of the Russian Federation. Paragraph 22 of the Resolution provides clear explanations for the actions of the prosecutor and the judge, namely, it is necessary to indicate the abuse of which of the rights and obligations or the excess of which of them, according to the documents regulating the activities of the official, he is charged with reference to a specific article, part and paragraph legal norm.
An analysis of practice shows that if an official acts contrary to the interests of the service, then his actions may be accompanied by a violation of the special circumstances of the service, which is typical for Article 286 of the Criminal Code of the Russian Federation, and therefore it is difficult to distinguish it from Article 285 of the Criminal Code of the Russian Federation.
It is necessary to distinguish between the listed elements of a crime, taking as a basis the subject, motive, and purpose of the crime. When distinguishing between abuse of power and excess, several factors must be taken into account. These are the grounds for criminalization and classification, which require procedural streamlining, as well as a clear procedure for differentiating responsibility. By complying with these requirements, it will be possible to take the first step in the fight against excess and abuse of official powers.
A prerequisite for the reasonable prosecution of guilty persons and the imposition of fair punishment on them is their correct qualification. This is also necessary to prevent the commission of new crimes.
When considering cases, the prosecutor and the judge must remember Article 237 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) on the procedure for returning cases to the prosecutor. One of the important aspects when considering cases against employees is the time when the offense was committed. If the illegal actions of an official were committed while he was on vacation, then there is no corpus delicti. Often, investigators formally indicate the presence of adverse consequences of abuse. As a result, the court has grounds to terminate the criminal prosecution under Article 285 of the Criminal Code of the Russian Federation, since the actual consequences of the violation have allegedly not been established.
According to the data of the Saratov Regional Court, in the fourth quarter of 2014, on appeal, the judicial panel for criminal cases of the Saratov Regional Court overturned 27 sentences against 39 persons, of which 8 criminal cases against 12 persons were returned to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation [1]. Thus, the court, if there were grounds provided for in Part 1 of Article 237 of the Code of Criminal Procedure of the Russian Federation, did not take measures to eliminate the violation of the law in relation to the significant difference in data in the description of the criminal act and the results of the forensic medical examination, which prevented the consideration of the criminal case.
Article 286 of the Criminal Code of the Russian Federation provides for the presence of selfish or other personal interest, which gives the use of official powers the property of abuse. The primary task of the investigator is to identify the personal nature of the motive for the offense. The connection between the actions of an employee and his duties, as well as the existence of a connection between the perpetrator and the victim whose rights are significantly violated, is the main difference in the qualification of Article 286 of the Criminal Code of the Russian Federation from Article 285 of the Criminal Code of the Russian Federation.
The main difference when committing a crime under Article 285 of the Criminal Code of the Russian Federation is that the perpetrator uses one of three types of official powers, and if exceeded, the corresponding position. By committing an offense under Article 286 of the Criminal Code of the Russian Federation, an official uses his official position without using his powers, which increases the social danger of the crime.
Thus, when delimiting crimes provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, it is necessary to be based on several criteria:
- It is necessary to determine whether it is possible for the act, which constituted the objective side of the encroachment, to be carried out by a subject who does not have official authority.
- There must be a connection between the actions of the perpetrator and his official position, arise from it and be committed in the course of his official activities or in connection with it.
- Objectivity and uniformity in the interpretation and application of the law on criminal liability must be ensured by clear criteria for assessing the socially dangerous consequences of crimes in the Criminal Code of the Russian Federation. Therefore, detailed doctrinal elaboration of this problem is necessary.
We must not forget that the reasons for the reversal of court decisions and, as a consequence, the acquittal of the defendants are explained by the incorrect interpretation of the motives of the subjects by the judge. When considering each case, the prosecution must carefully examine the reasons put forward by the defense, trying to hide the real motives.
Regardless of the article of the Criminal Code of the Russian Federation according to which the offense is classified, the doctrinal development of new approaches and methods or the improvement of existing ones, as well as the uniformity of their application, is necessary to combat the perception of the actual admissibility of prohibited forms of behavior.
Literature:
- Review of the reasons for the cancellation and changes of sentences of district (city) courts of the Saratov region based on the results of an analysis of appeal practice for the 4th quarter of 2014. Saratov regional court. https://oblsud.sar.sudrf.ru/modules.php?name=docum_sud&id=9886.
- Isayan E. A. Countering abuse and excess of official powers in Russia: history and modernity. // Science and education: farming and economics; entrepreneurship; law and management. - 2012. - No. 2. - P. 112–117.
- Ivanchin A. N., Kaplin M. N. Official crimes. Tutorial. Yaroslavl: YarSU, 2013. 108 p.
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 N 19, Moscow “On judicial practice in cases of abuse of official powers and abuse of official powers” // Rossiyskaya Gazeta. 2009. October 30. Federal Issue No. 5031 (207).
- Korkunov N. M. Russian state law. Lecture guide. [Electronic resource] https://books.e-heritage.ru/book/10080146.
- Pechnikov N.P. Official and official crimes.: TSTU Publishing House, 2007–60 p.
