New edition of Art. 288 of the Criminal Code of the Russian Federation
Assignment by a civil servant or municipal employee who is not an official of the powers of an official and the commission by him in connection with this of actions that entailed a significant violation of the rights and legitimate interests of citizens or organizations -
shall be punishable by a fine in the amount of up to forty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three months, or by compulsory labor for a term of up to three hundred sixty hours, or by corrective labor for a term of up to two years, or by arrest for a term of up to three months.
The Supreme Court has put an end to the dispute over the statute of limitations for criminal prosecution
“The ice has broken, gentlemen of the attorneys!” – there is no other way to evaluate the decisions of the Supreme Court of the Russian Federation and the Sixth Court of Cassation of General Jurisdiction1, adopted in the spring on one of the most important procedural issues that almost every defense lawyer has encountered.
The question concerns the legality of criminal prosecution after the expiration of the statute of limitations for criminal prosecution, defined by Art. 78 of the Criminal Code of the Russian Federation.
From the point of view of the theory of law, there cannot be a dispute in resolving this dilemma due to the direct instructions of the law - a criminal case cannot be instituted, and the instituted case is subject to termination due to the expiration of the statute of limitations for criminal prosecution (clause 3, part 1, article 24 of the Code of Criminal Procedure of the Russian Federation).
However, in practice, a free interpretation of the legislative imperative has been observed more than once, which was explained by the procedural independence of the investigator and interrogating officer - they, at their own discretion and with the tacit consent of the leaders and supervising prosecutors, made decisions to initiate criminal cases, collected evidence of the guilt of the suspects (accused) and sent cases to court for consideration on the merits. To the reasonable claims of the defenders of the accused (and in some cases, the victims), they retorted: “We cannot and will not dismiss the case, this is our practice, the court will sort it out.”
Appealing against such clearly illegal actions through prosecutorial supervision, as well as departmental or judicial control, did not bring a positive effect. Such “corporate solidarity” between law enforcement officers and the court not only belittled the law, but also formed erroneous law enforcement practices.
So many lawyers' complaints on this issue have been filed, so many copies have been broken - and all in vain! Finally, the Supreme Court of the Russian Federation sorted out this very important procedural issue and took a principled position, disagreeing with the prosecution.
Thus, a resident of the Republic of Bashkortostan appealed under Art. 125 of the Code of Criminal Procedure in the Sovetsky District Court of Ufa, three decisions to initiate a criminal case, issued by the investigator for especially important cases of the second department for the investigation of especially important cases of the republican Investigative Committee of the Investigative Committee on the grounds of crimes provided for in Parts 3 and 4 of Art. 159 of the Criminal Code.
The essence of the plaintiff's demands was that after the statute of limitations had expired, a criminal case could not be initiated. However, the courts of the first (December 5, 2022), appellate (January 29, 2022) and cassation (July 28, 2022) instances did not agree with the arguments of the complaint and refused to satisfy it.
As stated in the Supreme Court Resolution of April 1, “...according to paragraph 3 of part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, a criminal case cannot be initiated, and the criminal case initiated is subject to termination due to the expiration of the statute of limitations for criminal prosecution. At the same time, this provision of the law does not contain a condition for obtaining a person’s consent to refuse to initiate a criminal case on the grounds specified in clause 3 of part 1 of Art. 24 Code of Criminal Procedure of the Russian Federation. However, contrary to the specified requirements of the law, the investigator issued decisions to initiate criminal cases against ˂…˃ the above-mentioned criminal cases, which, when considering the latter’s complaints in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation was recognized by the court as legal.”
The cassation appeal was submitted to the Sixth Court of Cassation of General Jurisdiction, which, by a ruling dated May 26, overturned the decision of the appellate instance with the wording: “In violation of the requirements of the law, the appellate court, leaving the court decision unchanged, did not take measures to verify the grounds given in it for refusing satisfaction of the complaint ˂…˃ regarding their compliance with the requirements of the criminal procedure law and did not give a proper assessment of the violations committed during the consideration of the case in the court of first instance.”
At the time of the re-examination of the complaint by the Sovetsky District Court of Ufa in July, the criminal case against the applicant had already been sent to the court for consideration on the merits, therefore the complaint was rejected. However, this circumstance did not prevent the court, taking into account the emerging practice on this issue, from passing an acquittal against the defendant, which was not related to the arguments of the considered complaint.
On July 21, the Sovetsky District Court of Ufa issued an acquittal against K., who was accused of falsifying evidence in a civil case (Part 1 of Article 303 of the Criminal Code). As stated in the verdict, the criminal case, after the statute of limitations for criminal prosecution had expired, was initiated illegally, which entails the recognition of all collected and examined evidence as inadmissible.
The Supreme Court of the Republic of Bashkortostan supported the conclusions of the lower court and considered the arguments of the appeal presentation of the prosecutor's office unfounded. As stated in the Appeal Resolution dated September 8 in case No. 22–5054/2021, “The appellate court finds the court’s findings that the accusation <FULL NAME1> is based on inadmissible evidence due to the illegal initiation of a criminal case and the collection of evidence in violation of the requirements of the law, motivated, justified by the case materials and the norms of the law.”
I believe that such an approach will contribute to the formation of uniform judicial practice on this issue.
1 Resolution of the Supreme Court of the Russian Federation dated April 1, 2022 No. 49-UD21-3-K6, ruling of the Sixth Court of Cassation of General Jurisdiction dated May 26, 2021 No. 77-2263/2021.
Commentary to Art. 286 of the Criminal Code of the Russian Federation
The main object of the crime is normal, i.e. carried out in accordance with the law, the activities of the state (municipal) apparatus of power and management. An additional object may be the constitutional rights and freedoms of man and citizen, their health, honor and dignity, and the interests of society and the state protected by law.
The objective side of a crime is characterized by the presence of three mandatory features: 1) act - the commission by an official of actions that clearly go beyond the scope of his powers; 2) 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 and the state; 3) a cause-and-effect relationship between the action and the resulting consequence.
When deciding whether an official has committed actions that clearly exceed the limits of his authority, it is necessary first to determine these limits, i.e. establish the scope of rights and obligations granted to a person, i.e. his job competence, which is enshrined in various regulatory legal and other acts (law, regulation, order, job description, order, employment contract, etc.).
Explicit (i.e. obvious, significant, gross) departure of a person’s actions beyond the limits of the granted authority is an evaluative concept and is established in relation to the specific circumstances of the case. Resolution of the Plenum of the Supreme Court of the USSR of 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” includes the following as cases of a person exceeding his official powers:
- performing actions that fall under the authority of another official or several persons. For example, an official commits actions that are within the competence of a superior official or an official of another department, individually performs actions that can only be performed collectively;
- performing actions that could be performed by this official only in the presence of special circumstances specified in the law or by-law;
- committing actions that no one has the right to commit under any circumstances (for example, beating detained or imprisoned persons).
Excess of official authority occurs only in the case when the illegal actions committed by a person are related to the performance of his official activities, when in relations with injured persons the perpetrator acts precisely as an official (official), but not a private person. In other cases, a person may be held liable under other articles of the Criminal Code of the Russian Federation, but not for malfeasance. So, for example, a police officer who illegally used the weapon entrusted to him in a conflict that arose on the basis of personal hostile relationships, regardless of any connection with his official duties, bears criminal liability as a private individual. Exceeding authority can be committed by an official both in the exercise of power and in the exercise of administrative, economic or organizational functions.
A significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state is an evaluative concept; it was considered in relation to Art. 285 of the Criminal Code of the Russian Federation. By its design, the corpus delicti is material. The crime is considered completed from the moment of occurrence of the provisions specified in Art. 286 of the Criminal Code of the Russian Federation consequences.
The subjective side of the crime is characterized by guilt in the form of direct or indirect intent. The guilty person realizes that he is committing actions that clearly go beyond the powers granted to him, foresees the onset 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 and the state, and desires the occurrence of these consequences (direct intent) , consciously allows or is indifferent to their occurrence (indirect intent).
The subject of the crime is a special one - an official.
It should be noted that the rule on liability for abuse of power is special in relation to the rule on the abuse by a person of his official powers, since it represents a special case of such abuse. The difference is that in case of abuse of official powers, a person illegally, contrary to the interests of the service, uses the rights and powers granted to him by law, and if exceeded, commits actions that clearly go beyond the limits of his official competence. If abuse of power constitutes a special crime, then liability in accordance with the rule of Part 3 of Art. 17 of the Criminal Code of the Russian Federation occurs only according to a special norm. Thus, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, having considered the case of convicting a person under clauses “a”, “b”, part 3 of Art. 286 and according to Part 2 of Art. 302 of the Criminal Code of the Russian Federation, excluded the general norm from the verdict (clauses “a”, “b”, part 3 of Article 286 of the Criminal Code of the Russian Federation), indicating that if an official exceeding his powers was expressed in coercion to testify, combined with the use of violence, bullying or torture, the act must be qualified only under Part 2 of Art. 302 of the Criminal Code of the Russian Federation, since one action provided for by the general norm (Article 286 of the Criminal Code of the Russian Federation) and the special norm (Article 302 of the Criminal Code of the Russian Federation) cannot form a set of crimes. Special in relation to Art. 286 of the Criminal Code of the Russian Federation also includes such crimes as: Part 2 of Art. 136, part 2 art. 137, part 2 art. 138, part 3 art. 139, paragraph “b”, part 2, art. 141, part 2 art. 144, art. Art. 299 - 302, art. 305 of the Criminal Code of the Russian Federation, etc. But also Art. 286 of the Criminal Code of the Russian Federation in a number of cases is a special norm in relation to norms of a general nature. For example, the Presidium of the Supreme Court of the Russian Federation excluded from the verdict the indication of convicting a person under clauses “g”, “g”, part 2 of Art. 127 of the Criminal Code of the Russian Federation, since responsibility for the unlawful deprivation of a person’s freedom committed by an official is established by paragraphs “a”, “b” of Part 3 of Art. 286 of the Criminal Code of the Russian Federation and additional qualifications under Art. 127 of the Criminal Code of the Russian Federation is not required.
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Bulletin of the Supreme Court of the Russian Federation. 2001. N 7. P. 15.
See: Resolution of the Presidium of the Supreme Court of the Russian Federation of September 19, 2007 N 309-P07 // Bulletin of the Supreme Court. 2008. N 5. P. 19 - 20.
