One of the special crimes against justice is provocation of a bribe. Under the provocation of a bribe or commercial bribery, the criminal law means an attempt to transfer to an official or a person performing managerial functions in commercial organizations, without his consent, money, valuables, property or the provision of property-related services to him, for the purpose of artificially creating evidence of a crime or blackmail.
Article 304 of the Criminal Code of the Russian Federation contains only one simple composition, the disposition of which is indicated above. Provocation of a bribe is a crime of medium gravity and carries a maximum penalty of five years in prison.
From a legal point of view, the provocation of a bribe or commercial bribery should be understood as the deliberate creation by the provocateur of a situation that pushes or forces the victim to perform actions beneficial to the provocateur - to receive a bribe. The main goal of the provocateur is to create the appearance that an official or commercial employee has received a bribe, thus artificially creating evidence of the commission of crimes under Art. 290 of the Criminal Code of the Russian Federation Receiving a bribe, or Art. 204 of the Criminal Code of the Russian Federation Commercial bribery. The bribe can be left in the victim’s office, transferred to relatives, transferred to an account, the main condition for the formation of Art. 304 of the Criminal Code of the Russian Federation, this must be done without the knowledge and consent of the bribe-taker.
Since Art.
304 of the Criminal Code of the Russian Federation Provocation of a bribe is closely related to Art. 290 of the Criminal Code of the Russian Federation Receiving a bribe and Art. 204 of the Criminal Code of the Russian Federation Commercial bribery, at the initial stage after the very event of transferring (leaving) money or valuables, an ambiguous legal situation arises - which of the participants in the events committed the crime and who was the victim, what was committed, receiving a bribe, commercial bribery, or the bribe was provoked. If the bribe was made under operational support, then it will be possible to prove provocation and achieve termination of the case of receiving a bribe or commercial bribery only at the investigation stage, since operational measures are prepared in advance, the investigator receives already compiled material containing certain signs, and the timing of the procedural decision and the management They are often under pressure and give the command to initiate a case. CRIMINAL LAWYER call now: ☎ 8 (495) 532-75-40
About provoking a bribe
Provocation of a bribe is a criminal offense and occurs when the injured party refuses to receive it. It is important that the composition in question is imputed to the guilty person if the official did not incline him to bribery either by hints or by other means.
The concept of provocation of a bribe and responsibility for committing an act is established by Art. 304 of the Criminal Code of the Russian Federation. The object of this crime is social relations that guarantee the legality of the activities of government bodies, local self-government bodies, commercial organizations, etc.
Art. 304 of the Criminal Code of the Russian Federation is charged if an attempt to transfer funds or other material assets was made against an official who expressed refusal through his actions, and was intended to blackmail or deliberately create evidence of a crime.
Attention! The motives for committing this act are the desire for revenge, the search for an option to eliminate a competitor, the self-interest of the criminal, etc.
Responsibility for provoking a bribe applies to citizens who have reached the age of 16 at the time of the commission of the act. Based on the results of the consideration of the case, the court appoints:
- Fine - its amount does not exceed 200,000 rubles. or the total earnings of the convicted person for a period equal to 18 months;
- Forced labor - they are involved in them for a period of up to 5 years. An additional sanction is deprivation of the opportunity to conduct certain activities for a period not exceeding 3 years;
- Imprisonment of the guilty person for a period of up to 5 years. An additional sanction of deprivation of the right to engage in a specific activity for up to 3 years may be provided.
Second commentary to Art. 304 of the Criminal Code of the Russian Federation
1. The concepts of bribe and commercial bribery are enshrined in Art. 290 and 204 of the Criminal Code.
2. The essence of provocation is revealed in the law itself and consists of an attempt to transfer a bribe (commercial bribery) without the consent of the person to whom it is intended. Lack of consent means that an official (Russian, foreign, public international organization) or a person performing managerial functions neither openly nor covertly demanded to transfer a bribe or carry out commercial bribery and did not express readiness to accept illegal remuneration.
3. The crime is considered completed from the moment the actions specified in the law are committed.
4. The subjective side is characterized by direct intent and purpose - the artificial creation of evidence of a crime or blackmail.
5. The subject of the crime is a person who has reached the age of 16 years.
Some nuances
Features affecting the consideration of the case and the selection of penalties:
- Actions taken when provoking a bribe. They can be expressed verbally (for example, an offer to transfer funds) or in the form of actions (directly transferring money or things).
- Consequences of bribery. There are known situations when an official did not notice the bribery and, mistaking an envelope with money for an unnecessary piece of paper, threw it away. Such actions will be qualified not under Article 304 of the Criminal Code of the Russian Federation, but as an attempted bribe.
Attempted bribery
Such an act is characterized as an unfinished crime . It seems that the person gave a bribe to the official, but for some reason he did not receive the money.
Despite this, for such an offense a person who gives a bribe faces criminal liability in accordance with Art. 29 and 30 of the Criminal Code of the Russian Federation.
Criminal liability in this case arises only when the attempt to give illegal monetary reward is applied in relation to a serious or especially serious crime.
Are offering a bribe and attempting to give illegal monetary reward the same thing?
No, in the case of an offer, there is no criminal liability . You can understand how these types of violations differ from the following examples:
Example 1.
During a fire safety inspection, the store director offers the inspector a bribe so that he does not issue him a fine.
But at the same time, the entrepreneur does not give him money, he is still just negotiating.
However, the inspector refuses to receive illegal remuneration.
In this case, criminal liability is not provided, since the director essentially did not commit any actions.
Example 2.
A student who has failed an exam approaches the teacher with a grade book, where he has invested a certain amount so that the professor will give him an “A”. He asks him to take the money, but the teacher refuses to accept it and give him a grade.
In this case, we are talking about an attempt to give illegal monetary reward, since an attempt to deliver the money was made, but ended in failure.
Ways to prove provocation
Proving provocation of a bribe in practice is extremely difficult. This is due to the well-thought-out nature of the crime. The following can be used as sources confirming innocence:
- witness's testimonies,
- videos,
- audio materials, etc.
It will be possible to refute the accusations brought against an innocent person only with the help of a qualified lawyer.
We will tell you how to prove receipt of a bribe in a separate article https://lexconsult.online/7635-opredelenie-dokazatelnaya-baza-otvetstvennost-za-pokushenie-na-poluchenie-vzyatki
Is it possible to avoid criminal liability for giving a bribe in 2022?
Yes, there is such a practice . Penalty can be avoided if:
- the one who gave the bribe will voluntarily come to law enforcement agencies and write a statement that he is involved in giving a bribe;
- the person who gave the bribe will help the police in solving a chain of crimes involving a group of bribe givers;
- the one who gave the bribe will prove that the official, through pressure, insisted on receiving the bribe.
Example: a guy decided to pay off the army and brought the official a certain amount. After some time, FSB officers called him and informed him that they had video evidence that the guy had given a bribe to an official, so he could face Art. 291.
But they stated that if the guy tells how everything happened and helps the investigation, then they will not bring him to criminal responsibility.
This is indeed so, such a rule is spelled out in the Note to Art. 291 “Giving a bribe.” It clearly states that in case of active assistance to the investigation, the person who gave the bribe can be released from criminal liability if he voluntarily informs the body that initiates criminal cases that he gave a bribe to an official.
Bribe to a traffic police officer
Many people neglect Art. 291 of the Criminal Code of the Russian Federation, for which some are held accountable to the fullest extent of the law.
But if you think that only the traffic police inspector faces punishment for a bribe, then you are grossly mistaken. The driver of the vehicle is also responsible for such an offense.
And liability according to the Criminal Code of the Russian Federation may be as follows:
| Bribe size | Responsibility of a traffic police inspector for accepting a bribe | Driver's responsibility for giving a bribe |
| Up to 25 thousand rubles. | From a fine to 1 million rubles. and up to imprisonment for up to 3 years | From a fine of up to 500 thousand rubles and up to imprisonment for up to 2 years |
| From 25 to 150 thousand rubles. | From a fine to 1.5 million rubles. and up to 6 years imprisonment | From a fine of up to 1 million and up to imprisonment for a period of 5 years. |
| From 150 thousand rubles. | From a fine to 4 million rubles. and up to imprisonment from 7 to 12 years | From a fine of 1-3 million rubles. and up to imprisonment from 7 to 12 years. |
| Over 1 million rubles. | From a fine of 3 million rubles. and up to imprisonment from 8 to 15 years | From a fine of 2-4 million rubles. and up to imprisonment for a term of 8 to 15 years |
What to do if a traffic police officer insists on receiving a bribe?
If there is provocation on the part of the inspector, and the owner of the vehicle does not want to pay him, then he can behave like this:
- Under no circumstances should you pay the inspector.
- If the inspector is unapproachable, then the driver may succumb to his provocation and give money, but he must record this fact. How to prove giving a bribe?
For example, you can turn on the voice recorder or make a recording on the DVR. As a last resort, witness testimony will do.After this, you need to contact the prosecutor’s office or the local department of the Ministry of Internal Affairs on the same day and write a statement about giving a bribe. No one will punish the driver under criminal law for this.
- If the inspector is demanding , but the driver has money, then you just need to warn the traffic police officer that the conversation is being recorded.
Practice overview
Judicial practice on the provocation of a bribe has been replenished in recent years with new examples. Thus, criminal cases were initiated against a group of drivers for bribery. They tried to transfer funds to traffic police officers so that they would not draw up protocols on them in the manner established by the Code of Administrative Offenses of the Russian Federation.
The Collegium for the Protection of Motorists' Rights spoke out in defense of the group of drivers. Lawyers compiled and sent a complaint to the Prosecutor General's Office of the Russian Federation. It stated that it was impossible to organize operational experiments against persons who had not committed a crime.
The result of their appeal was the termination of the criminal process.
Petty bribery: liability according to the Criminal Code of the Russian Federation
Since 2016, the Criminal Code has been supplemented with another article No. 291.2 “Petty bribery”.
According to this provision of the law, for giving or receiving a bribe in the amount of up to 10 thousand rubles directly or through an intermediary, persons who have committed such a crime may face punishment in the form of:
- fine up to 200 thousand rubles;
- a fine in the amount of salary for a period of up to 90 days;
- correctional labor for up to 12 months;
- restrictions of freedom for up to 24 months;
- imprisonment for up to 12 months.
If a small bribe was given by a person who has previously been convicted of committing a crime under Articles 290 and 291 of the Criminal Code, then he will face:
- fine up to 1 million rubles;
- salary for a period of up to 12 months;
- correctional labor for up to 3 years;
- restriction of freedom for up to 4 years;
- imprisonment for up to 3 years.
You can avoid liability for petty bribery if the person who gave the bribe actively helps the investigation in solving the crime, and also informs law enforcement agencies that he gave the bribe.
Commentary on Article 291 of the Criminal Code of the Russian Federation
A party to such a criminal act is the fact of giving (sending, delivering) money or some property to an official or through a third party illegally.
In this case, the official who received the bribe receives a material benefit, aware of the fact that he may be punished for this.
If an official invited a subordinate to bribe another official in order to achieve a promotion, then he will be held liable as an accomplice in giving the bribe.
If an official does not accept a bribe, then the illegal actions of the one who gave it will be regarded as an attempt to give a bribe. A person who acted as an intermediary in giving and receiving a bribe will act as an accomplice in an attempt to give a bribe.
If a person who wants to bring an official to justice for taking a bribe wrote a statement, but in fact he did not give a bribe, then he may face punishment under Art. 306 “False denunciation.”
Can an official who has served a sentence for committing corrupt acts return to service?
The Criminal Code of the Russian Federation for committing crimes of a corruption nature provides for an additional type of punishment in the form of deprivation of the right to hold a previous position or any other position in government bodies, local government, military service, as well as in organizations whose positions are related to the implementation of organizational, administrative and administrative functions. economic work.
This type of punishment is usually applied for 3 years . However, in Russia the chances of an official who has served a sentence for committing corrupt acts returning are minimal.
For giving a bribe, as well as for receiving it, the perpetrators of the crime face criminal liability in accordance with Art. 290 and 291 of the Criminal Code of the Russian Federation.
Officials who accepted a bribe are, in practice, suspended from their positions for a certain period.
However, criminal liability can be avoided if the person who committed the dangerous act confesses to the police and assists them in every possible way in solving the crime.
