The use by employees of government agencies and local authorities of their official position, resulting in a significant infringement of the interests and rights of society and the state, organizations, citizens, is punishable under the Criminal Code of the Russian Federation. Abuse of official powers is an encroachment on the normal work of government bodies, municipal and state-owned enterprises.
Aggravating features
Abuse of official powers by a citizen holding a post in a federal or regional government structure, as well as by the head of a territorial self-government body, is punishable:
- A monetary penalty in the amount of 100-300 rubles. or in the amount of income of the culprit for 1-2 years.
- Forced labor up to 5 years.
- Imprisonment up to 7 years.
The last two sanctions may additionally include a ban on holding positions or conducting activities of a certain type for 3 years. If abuse of power results in serious consequences, the perpetrators face up to 10 years in prison. Additionally, the prohibition specified above (for the same period) may also be imposed.
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 is misuse of budget funds?
It is almost impossible to provide a complete list of potential violations of the expenditure of federal savings. Because, as the statistics of targeted and unscheduled audits show, more and more new methods of off-budget use of proceeds are being established each time. But we can highlight the most common offenses:
- money is spent on needs that were not planned by the budgetary institution for the current year (all economic and financial needs must also be planned for the reporting period);
- if the head of the enterprise independently makes changes to the amount of costs in different areas;
- if from the amount of allocated funds those types of costs were paid, the coverage of which should come from other sources;
- if the funds are used to cover costs not related to the activities of the budgetary institution;
- payment for all internal work not included in the plan for the current year.
This is just the tip of the iceberg, but the Budget Code of the Russian Federation describes in as much detail as possible possible violations by officials and government organizations. In addition, additional norms for the misuse of federal funds are stipulated in the Criminal Code of Russia and the administrative code of norms.
The mechanism of influence on attackers in Ukraine is being formed in a similar way. But Belarus takes the procedure for selling republican money a little more seriously, and therefore the enforcement measures are more stringent.
Use of official status
Abuse of official authority involves the commission of actions that, although directly related to the employee’s implementation of his duties and rights, are not caused by necessity. Such behavioral acts contradict both the general requirements and tasks carried out by the state apparatus and local government structures, and the purposes for which the citizen received the appropriate powers.
Article 285 of the Criminal Code of the Russian Federation applies to cases of actions committed out of selfish or other personal interest in the absence of grounds and mandatory conditions for this. For example, citizens who do not actually perform labor duties are hired, driver’s licenses are issued to people who have not passed the exam, and bosses (commanders) release their subordinates from performing their duties with the direction to set up the employee’s private property or work in commercial organizations.
What is the crime
Actions of this kind are dangerous because they can harm the functioning of the state apparatus and, as a consequence, local governments. The flow of funding to the budget is jeopardized, because one crime that remains unpunished may be followed by a series of others. This is the corpus delicti.
The subject of misuse of budget funds may be money that was allocated and approved by the corresponding budget. They are approved by the budget list, notice of budget allocations, revenue estimates and other documents that secure the right to the amounts received. The purpose of these funds is very diverse. They can be used, for example, for the development of industry or agriculture, transport, nature conservation, etc.
When actions become criminal
Unlawful actions are those due to which the recipient for whom budget money was approved did not receive his funds, or these funds were used for purposes other than those for which they were asked.
Note : The crime is considered committed from the moment the misuse begins, i.e. debiting a sum of money from an account.
The objective side of the offense
The objective side is based on the action of wasting budget money by an official in order to achieve goals that do not correspond to those stated when requesting these funds.
The main object of the crime is relations in society that support the established procedure for the use by civil servants (who receive budget money) of allocated budget funds in accordance with their purpose.
The interests of individuals and legal entities - recipients of funds - are considered by law as an optional object.
Subjective side
The offender must act with direct intent. The goals and motives of the offender do not affect the qualification of his actions and the elements of the crime, but can still be taken into account during the hearing on the case.
The subject of misuse of budget funds is the official of the recipient. The recipient, in turn, may be a budgetary institution that has the right to this money within the appropriate period.
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.
Art. 285 of the Criminal Code of the Russian Federation: acquittal
If an act, the punishment for which is established by the norm in question, is committed by an employee to eliminate a danger that directly threatens the interests and rights of a citizen, society, or state, and it cannot be eliminated by other means, then such behavior is not considered a criminal act. In this case, the limit of extreme necessity should not be exceeded.
Persons associated with the exercise of their official powers, resulting in harm to the protected interests of society and the state, organizations and citizens, cannot be considered as criminal acts if they were committed in pursuance of an order or regulation that is mandatory for him. The corresponding provision is enshrined in Art. 42 of the Code.
Arbitrage practice
Currently, quite a lot of cases of this type are being considered in the courts. The essence of many of them comes down to incorrect KOSGU. Some concern the misuse of the CBC. There are also cases when a budgetary institution received money for some service and then spent it on its needs. According to the law, funds must be redirected to the budget, and only then issued to the organization for expenses.
Every year, the budget organization draws up a spending plan. The specified amount must not be exceeded under any circumstances. If there is an overspending, this is automatically a reason to consider the situation in court.
The statute of limitations for misuse or theft of budget funds is 6 years. Each violation of the above is considered privately, and even experienced lawyers are not always able to predict the outcome of the trial.
Such cases are considered according to certain rules. For a defendant to be found guilty, the grounds for imposing punishment must converge on one criminal act.
Such grounds are:
- the defendant is an official who has the right to independently dispose of budget revenues;
- the defendant must be aware at the time of committing the action what changes they will entail.
Obviously, only a high-ranking official can be the subject of a criminal act, because an ordinary employee does not have the right to dispose of funds at his own discretion. As far as awareness of the consequences is concerned, everything is much simpler. The fact of awareness is often confirmed by the position. An incompetent employee simply cannot occupy it.
The main feature of such cases is that the accused has the opportunity to challenge the conclusions of the supervisory authority before the consideration of the case, and in court. The offending organization and the official are given five days to challenge the findings of the controlling organization. Next, the case is sent to the court, whose decision may impose criminal liability.
Special cases
If a citizen commits an intentional crime under Article 285 or 286 in pursuance of an order/instruction that is obviously illegal for him, he is liable according to the general rules. The actions of the boss who issued the act are regarded as incitement to an attack or its organization. Such actions are qualified according to the relevant norm of the Special Part of the Code with reference to Article 33 (Part 3 or 4). An employee who issued a knowingly illegal order (order) to a subordinate who did not realize the illegality of the act and carried it out is held accountable as an executor.
If, in order to achieve an unlawful result, a citizen uses not his official position, but some connections, the authority of the post he holds, etc., then the provisions of Art. 285 of the Criminal Code of the Russian Federation. There is no corpus delicti of the commented norm.
Article 285. Abuse of official powers
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- Article 285. Abuse of official powers
1. The use by an official of his official powers contrary to the interests of the service, if this act was committed out of selfish or other personal interest and entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state,
is punishable by a fine of up to eighty thousand rubles. or in the amount of 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 period of up to five years, or forced labor for a period of up to four years, or arrest for a period 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, -
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 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 seven 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.
3. Acts provided for in parts one or two of this article, which entailed grave consequences, -
shall be punishable by imprisonment for a term of up 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.
Notes. 1. Officials in the articles of this chapter are persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, administrative and economic functions in state bodies, local governments, state and municipal institutions, state corporations, state companies , state and municipal unitary enterprises, joint-stock companies, a controlling stake in which belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.
2. In the articles of this chapter and other articles of this Code, persons holding public positions in the Russian Federation mean persons holding positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies.
3. In the articles of this chapter and other articles of this Code, persons holding public positions in the constituent entities of the Russian Federation mean persons holding positions established by the constitutions or charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies.
4. Civil servants and municipal employees who are not classified as officials bear criminal liability under the articles of this chapter in cases specifically provided for by the relevant articles.
5. (Clause 5 was introduced by Federal Law of December 25, 2008 N 280-FZ - Collection of Legislation of the Russian Federation, 2008, N 52, Art. 6235; LOSS OF FORCE on the basis of Federal Law of May 4, 2011 N 97-FZ - Collection of Legislation of the Russian Federation, 2011, No. 19, Article 2714)
Commentary on Article 285
Main object
abuse of official powers is the activity 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.
Objective side
a crime consists of three mandatory features: 1) 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 <1>.
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<1> 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 <1>, creating significant interference and disruptions in the work of state and municipal structures, concealment of serious crimes, etc.
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<1> 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 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” about <1>.
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<1> 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 an intentional 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.
Subject
the crime in question is a special 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).
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.
Motives
From the subjective side, the act is characterized by guilt in an intentional form. Intention can be either indirect or direct. A mandatory element of the subjective side is motive. It is selfish or other personal interest. The first should be understood as the employee’s desire to obtain property benefits for himself or other persons by committing illegal actions. However, it is not associated with the gratuitous illegal circulation of material assets for one’s own benefit or that of other citizens.
The commented norm covers actions aimed, for example, at illegally obtaining benefits, a loan, exemption from expenses, return of property, payment for services, repayment of debt, etc. Another personal interest is manifested in the employee’s desire to extract non-property benefits. It is determined by such motives as nepotism, careerism, the desire to embellish the real state of affairs, to obtain mutual provision of services, to enlist someone's support in solving a problem, to hide incompetence, and so on.
Nuance
In contrast to the theft of property belonging to other persons using official powers, abuse of them for selfish reasons constitutes such actions of an employee that are either not related to the seizure of material assets (for example, obtaining benefits from using a thing for other purposes), or are related to their compensatory/temporary withdrawal. If the act was expressed in the actual conversion of the object in favor of the perpetrator, then it is fully covered by part 3 of Art. 160 or part 3 of Art. 159 and additionally does not qualify under the norm in question. In the case when an employee, using his position, in addition to theft, commits other illegal actions that are associated with abuse of power for self-interest or other personal interest, his behavior falls under the relevant provisions of the Code in the aggregate.
Qualifying features
Part two of the norm in question provides for punishment for abuse of power by a person with a special status. In particular, employees of a federal or regional government agency, as well as heads of territorial self-government structures, are held accountable. The grave consequences of the committed act act as a special qualifying feature provided for in part of the third norm.
What do they mean? The actions of a person who has abused his official position can, for example, lead to major accidents, prolonged downtime of transport/production processes, major property damage, death by negligence, attempted suicide or suicide of the victim, and so on.
Types of misuse of public finances
Misuse of public money is possible only if this violation:
- rules of the approved budget;
- rules of the consolidated budget schedule;
- purposes of notification of budgetary appropriations;
- establishing estimates of income and expenses;
- contract or agreement, as well as other document that is the legal basis for the provision of budget funds.
Examples of inappropriate use:
- payment of expenses not provided for in the budget for a specific financial period;
- provision or use of interbudgetary transfers in violation of the rules for their provision or use;
- taking on expenses that should be covered from another budget;
- provision of financial assistance, including payment of expenses, to bodies and persons not included in the list of those to whom such assistance may be allocated;
- payment for the services of third-party specialists on issues that could have been resolved using the services of an in-house specialist;
- the use of federal collections of estimated prices instead of territorial ones;
- maintaining accounting staff on staff, provided that the financial and economic services of the institution are transferred to the centralized accounting department.
