For the first time, a rule establishing liability for an official exceeding his powers appeared in the Council Code, adopted in 1649. Since that time, sanctions for this crime have become significantly tougher. The punishment reached its maximum in the provisions of the Criminal Code of 1922 and the first edition of the Code of 1926. The norms, in particular, provided for the death penalty for this crime.
Features of legislation
In the previous historical period, regulations did not provide for a significant difference between the level of public danger of abuse of power and abuse of power, between negligence and inaction of officials. This was reflected in the penalties for basic and qualified squads. As practice shows, an overly abstract description that does not contain clear criteria allows for fairly wide limits for the consideration of cases by the court. In fact, this contradicts the principle of legality. In this regard, in the process of subsequent reform of Russian criminal legislation, it was decided to abandon such formulations.
Article 286 of the Criminal Code of the Russian Federation
Exceeding official authority is considered as the implementation by the subject of actions that are beyond the scope of his competence. Such behavior entails a violation of rights and infringement of the interests of organizations, citizens, society and the entire state. Art. 286, part 1 of the Criminal Code of the Russian Federation provides for the following punishment for the perpetrator:
- Imprisonment up to 4 years.
- Fine up to 80 thousand rubles. or in the amount of salary or other income of the perpetrator for a period of up to six months.
- Forced labor up to 4 years.
- Deprivation of the opportunity to carry out specific activities or hold certain positions for up to 5 years.
- Arrest for up to six months.
The sanctions given in Art. 286 part 1 of the Criminal Code of the Russian Federation, apply to the main elements of the crime. The norm also provides for punishment based on qualifying criteria.
Abuse of power
What is abuse of power? According to Art. 286 of the Criminal Code of the Russian Federation, this concept recognizes specific actions that go beyond the official duties of an official.
Excess of authority is established only in the actions of persons:
- performing administrative or organizational tasks in departments and services of state subordination;
- vested with powers in municipal and state bodies;
- performing economic and administrative functions.
The law especially pays attention to the abuse of power by officials holding positions of municipal, regional or federal significance.
Norms of specialized legislative acts have been developed, such as, for example, abuse of official powers by a police officer, which are considered within the framework of the Federal Law of the Russian Federation of 2011 No. 3-FZ “On the Police”.
The inadmissibility of exceeding powers in some cases is fixed by legislative act . For example, if there is no threat to a police officer’s life from a pregnant woman, then there is a complete ban on the use of firearms.
It is also prohibited to use special means, such as handcuffs, rubber truncheons, water cannons, tear gas, armored vehicles, or setting service dogs, without reason.
Who are the officials
According to note 1 of Art. 285 of the Criminal Code of the Russian Federation, government representatives include persons performing the functions of a government representative and performing administrative, organizational, economic and administrative functions in:
- government agencies;
- local government bodies;
- state-owned companies and corporations;
- municipal and state institutions and unitary enterprises;
- constituent entities of the Russian Federation or municipalities;
- joint stock companies where the main block of shares belongs to the Russian Federation;
- Russian armed forces.
Officials vested with power conduct their activities in:
- municipal authorities;
- state apparatus;
- apparatus of the Armed Forces of the Russian Federation.
According to Article No. 286 of the Criminal Code of the Russian Federation for abuse of official powers, a person holding an official position outside the sphere of state power is not included in the crime. As a punishment, disciplinary action may be taken against him.
Excess of official authority always leads to violation of the rights of citizens and enterprises.
Often, manifestations of abuse of power include using the capabilities of superiors in one’s own interests. If senior management knew about the use of their rights, but did not take any action, then disciplinary action may be applied to them or they may be charged with Art. 285 of the Criminal Code of the Russian Federation.
Aggravating features
Part 2. Art. 286 of the Criminal Code of the Russian Federation establishes punishment for persons serving in government bodies. We are talking about federal, regional and local government structures. In these cases, a harsher sentence is provided. Art. 286 of the Criminal Code of the Russian Federation establishes the following sanctions for these guilty persons:
- Up to 7 years of imprisonment with or without a ban on certain types of activities or holding certain positions for up to 3 years.
- Fine from 100 to 300 thousand rubles. or in the amount of salary or other income of the perpetrator for 1-2 years.
- Forced labor for up to 5 years with a ban on holding certain positions and engaging in certain types of activities for up to 3 years. or without it.
Jail
In addition to the well-known penalty in the form of a fine when a high-ranking official uses official powers for other purposes, it is worth paying attention to the fact that it is not always possible to “pay off”. In some cases, special sanctions are applied to the violator.
What are we talking about? About imprisonment with a small “addition”. In contrast to the usual excess of powers available to a person due to service and labor, if high-ranking officials participate in a crime, the court has the full right to imprison the culprit for 7 years. Or for a shorter period.
And in addition to this, a ban on conducting activities is also imposed and a taboo is imposed on the ability to occupy certain positions. The term of such punishment can be up to 36 months. But in Art. 286 states that this kind of restriction may not be imposed. Although in practice this measure is actively used.
The objective side of Art. 286 of the Criminal Code of the Russian Federation (with comments)
It consists of an employee performing actions that are clearly beyond the scope of his duties in the first place. Secondly, his behavior entails significant harm resulting from violation of rights and infringement of the interests of organizations and citizens, the state and society. In addition, the objective part of the crime is formed by the causal relationship between the unlawful action and the consequences. When delimiting abuse and excess of power, it is necessary to take into account that in the first case, a person, contrary to official interests, illegally uses the power entrusted to him. In the second, the subject performs actions that clearly go beyond the scope of his duties. They fall within the competence of another person or can be implemented by the perpetrator under special circumstances. The latter must be specified in a legislative or other regulatory act. For example, this may be taking action in the event of a reasonable risk or to prevent more significant harm without going beyond the limits of extreme necessity. Acts that no subject has the right to commit under any circumstances are also considered unlawful. These include, for example, going beyond the established measures during the detention of a criminal, illegal behavior expressed in the use of violence against a subordinate. This is exactly what Article 286 of the Criminal Code of the Russian Federation implies. Exceeding official authority must be obvious and undeniable to the culprit. In this case, the crime is qualified according to the norm in question.
Corpus delicti
The exercise of powers that are not available to an official is considered a crime . Exceeding rights does not include actions when the official used the available opportunities.
It is necessary to establish a cause-and-effect relationship between the violations of rights that have occurred and the actions of the government representative. The motive for an action can be material or personal, but there are no restrictions regarding intent - it can be direct or indirect.
This crime is characterized by the absence of a planning and preparation stage . The main criminal act is the onset of consequences.
Cases where abuse of power led to grave consequences, including the use of violence, are examined especially carefully. It will be necessary to further establish the use of threats or violence with weapons.
When qualifying the actions of the person under investigation, the distinction between excess and abuse of power is taken into account.
Judicial practice clearly indicates that the accused can be brought to criminal liability only in case of action. Exceeding official authority is not passive inaction.
First of all, you should understand the difference between exceeding official authority and abuse . By abusing his powers, a civil servant may deliberately act contrary to his duties when the motive is selfish goals or revenge.
Exceeding authority corresponds to the general interests of the person’s service, allowing one to achieve results illegally. For example, a police officer beat a citizen who did not resist his arrest.
Do not confuse excess of power and abuse; the evidence base depends on differences in the elements of the crime.
Although the corpus delicti may be the same in different cases, the severity of the punishment and the degree of responsibility may be different.
The Criminal Code of the Russian Federation provides for punishment in the form of:
- fine;
- forced labor;
- prohibition from holding a leadership position;
- arrest;
- deprivation of liberty.
The minimum sanction for exceeding authority is 80 thousand rubles, the maximum can be imprisonment for 10 years.
According to statistics, judges rarely impose the minimum punishment, but the maximum punishment is also rarely applied in judicial practice.
The severity of the crime is reduced not due to a lack of the judicial system, but due to the qualified work of the client’s lawyers.
Clarification of concepts
According to Art. 286 of the Criminal Code of the Russian Federation (as amended), a number of negative consequences should be understood as a significant violation of rights and infringement of the interests of the state, society, organizations or citizens. They are related to:
- Violation of the constitutional rights of citizens.
- Causing property, physical or moral damage to a person.
- Violation of the normal activities of an enterprise, organization, institution, leading to a long break or suspension of work, and so on.
The question of the materiality of the above violations is decided in accordance with the specific circumstances of the case.
Differentiation of compositions
Article 286 of the Criminal Code of the Russian Federation establishes punishment for acts that can be committed not only while a person is performing his duties as a representative of the government. Illegality of behavior can also manifest itself when it performs functions of an administrative-economic or organizational-managerial nature. This, in fact, is the difference between the corpus delicti, which is provided for in Article 286 of the Criminal Code of the Russian Federation, and other crimes, which may also be associated with the subject going beyond the limits of his competence in behavior. An example is Art. 302 of the Code.
Evidence of abuse of power
It is quite easy to prove that a representative has exceeded the powers of a power of attorney, which can establish the scope of the civil servant’s competence.
Also, any unconfirmed action is a violation of the law, for example, the boss received money for you, but this clause is not in the power of attorney, which is considered a clear abuse of work authority.
To bring to justice a manager who has stepped beyond the limits of his competence, you should submit an application to the Investigative Committee of the Russian Federation, the prosecutor's office or the police.
After considering your claim, they will have to conduct an investigation and make a decision or refuse to initiate criminal proceedings.
Law enforcement agencies are required to prove abuse of power.
For your part, you can seek help from lawyers in resolving this issue. They will evaluate all the circumstances of events in case of abuse of power, propose defense tactics and an effective position of proof in court.
Drawing up an application
To begin an investigative investigation, it will be necessary to establish the fact that the application was received by the investigative body. It can be submitted by any person; only anonymous complaints will not be accepted.
You can file a claim in person or send it by registered mail, but it must be written by the applicant.
A complaint is sent to the investigative department of the prosecutor's office at the location of the accused . There is no single template for the application, but there are general rules.
The document must be drawn up in Russian and written in legible handwriting. You can also use computer technology.
The complaint usually consists of:
- document's name;
- headers in the upper right part of the form, where the data of the recipient and sender are indicated;
- presentation of the case with comments on the case without emotional epithets;
- an indication of the norms of legal acts and articles of the Code of Administrative Offenses of the Russian Federation that you are guided by;
- date and signature.
The complaint must be considered by the bailiff within 10 days. Based on the results of the investigation, a criminal case may be initiated or you may receive a refusal.
We advise you to carefully prepare your claim by studying court decisions in similar cases . As an example, you can take samples of successful applications, as a result of which the case ended in favor of the applicant.
Motive
Article 286 of the Criminal Code of the Russian Federation provides for punishment for perpetrators solely for actions. Moreover, they can be committed with indirect or direct intent. Various aspirations can act as motives for committing a crime. It could be envy, selfishness, careerism. Some actions are committed in order to create the appearance of well-being or to create a false impression of the true intentions of the perpetrator. In the latter case, behavior in the so-called “official interests” is implied.
Official position
They are provided for in the second and third parts of the article. One of them is the commission of illegal acts by a person in the civil service of federal, local or regional authorities. Increased demands are placed on such officials due to the very nature of their position and the presence of a wide range of powers. Going beyond the established framework is fraught with significant violations of the interests and rights of a large number of citizens and enterprises.
Use of special equipment or weapons
The use of these objects when exceeding authority involves both physical (a blow with a rubber truncheon/handle of a pistol, a shot to kill, etc.) and mental impact. In these cases, there is a real threat to the health or life of the victim. If the unlawful behavior of the perpetrator was accompanied only by a demonstration of weapons or special means and did not pose a real danger to the citizen, then it can be qualified as an abuse of power by the subject with a threat of violence against the victim.
Results
Basically, that's all. Now we understand what punishment is due in this or that case for exceeding official powers. You may notice that deciding on a solution can sometimes be difficult. But in judicial practice, such a phenomenon occurs rarely. Therefore, there is no need to worry about making the wrong decision.
Most often, in reality, the culprit is “bought off” with a fine and is deprived of the opportunity to occupy certain specific (usually managerial) positions for a certain period of time. He may be prohibited from conducting activities of one type or another. Imprisonment is also provided for, but in real life it is imposed only in the most serious cases. They try to give all citizens a chance to reform.
Dire consequences
These include, for example, the suicide of the victim following the crime, prolonged downtime of the enterprise, or a major accident. Serious consequences also include causing property damage on a large scale. In the case where abuse of power was accompanied by premeditated murder, then this act is qualified according to the cumulative elements under Part 3, Art. 286 and Art. 105 of the Criminal Code.
Comments
Commentary to Art. 286 is a bit confusing. And not all citizens understand it. Nevertheless, he is able to bring some clarity to the article. For example, when resolving an issue, they pay attention to the direct harm to the victim. It must be expressed in the form of being held against one’s will, as well as beatings, various injuries and physical pain.
Special means can be used under the guise of weapons. These include a variety of stun guns, batons, light and sound equipment, water cannons, tear gas, handcuffs and even sniffer dogs. In other words, everything that is intended for use by a particular official. This may be something specific to his activities.
