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If an official, an official of any level, enters incorrect data into a document or draws up a forged document with deliberately false information, such an act is regarded as official forgery. Judicial practice shows that judges have not yet formed a consensus on the composition of this crime. The greatest disagreement is caused by the subject and the subject. A detailed analysis of the composition, specific examples of real cases and clarifications of the RF Armed Forces can be found below.
Expert opinion
Sobolev Dmitry
Administrative offenses lawyer, website expert
Previously, we talked about what a confession is and what crimes it can help with; read more about it here.
Legislative framework: types of liability
The legislation defines official forgery as the conscious, purposeful entry into documents of data that significantly distorts their content or is deliberately false. It is assumed that the attacker is fully aware of the consequences of his actions and reports that this information is false. Thus, official forgery is the distortion of the contents of documents for personal, selfish interests.
Official forgery is a criminal offense that is punishable by the following penalties:
- Fine up to 800 thousand rubles. or in the amount of the entire salary for six months.
- Or compulsory work up to 480 hours.
- Or correctional labor for up to 24 months.
- Or forced labor for up to 24 months.
- Or arrest for up to 6 months.
- Or imprisonment for up to 24 months.
Penalties are increased if it is proven that a significant violation of the rights of citizens, companies, authorities, society and the state as a whole has occurred:
- Fine up to 500 thousand rubles. or in the amount of the entire salary for 36 months.
- Or forced labor for up to 48 months. with deprivation of the right to work in certain positions for up to 36 months. (or without deprivation).
- Or imprisonment for up to 48 months. also with deprivation of the right to work for 36 months. or without it.
A separate article includes a similar act, as a result of which a foreign resident illegally acquired Russian citizenship. In this case, the following liability measures are provided:
- Fine up to 300 thousand rubles. or in the amount of the entire salary received within six months.
- Or correctional labor for up to 24 months.
- Or deprivation of the right to work in certain positions for up to 36 months.
- Or compulsory work up to 480 hours.
- Or forced labor for up to 5 years.
- Or imprisonment also up to 5 years.
What is official forgery (Article 292 of the Criminal Code of the Russian Federation)
By official forgery, the legislator means the entry by an official or state/municipal employee into official documents of obviously incorrect information (equivalent to erasure in documents), which distorts the true content of the papers. These acts must be carried out out of selfish or other personal interest.
Part 2 art. 292 indicates a more dangerous crime - official forgery, which entails a violation of the rights of citizens, society or the state.
Fraud is often committed in conjunction with other crimes. For example, in order to hide waste, etc. It is important not only to correctly separate one composition from another, but also to pay attention to the qualifying features.
Corpus delicti
Official forgery has a material composition, i.e. It is assumed that as a result of illegal actions of an official or civil servant, certain dangerous consequences occur for a particular citizen, society, or state. In the event that such consequences do not occur, we are talking about a formal composition. Then the actions of the attacker fall under administrative liability (disciplinary sanctions can also be applied).
An object
The main object is the normal work of government agencies, authorities, municipal structures, and document flow in them. Subject – official documents that can be presented both in paper and electronic form. Also, private documents are recognized as an item - for example, a receipt or statement of a person, etc.
In general, the list of official documents is very large - these can be all kinds of laws, regulations of ministries and departments, Government resolutions, as well as documents of citizens:
- passport;
- employment history;
- diploma and many others.
These documents include not only papers emanating from a given body or official, but also those that come to him for consideration (for example, survey reports).
Objective side
Based on the content of the above articles of the Criminal Code, we can distinguish 2 actions in this crime that determine its objective side:
- The employee draws up paperwork that is obviously false.
- The employee draws up correct documents, but includes information in them that significantly distorts their meaning.
In the first case, the document bears many features that allow it to be classified as original, although it is not genuine. For example, a person takes the original form of a higher education diploma, but enters incorrect information into it and gives it to an unauthorized person. Or it issues it to a real student, but enters incorrect data on academic performance.
In the second case, the document is genuine, but false data is entered into it, which significantly distorts its essence. This could be forgery, correction, addition of text, etc. For example, a new entry about work with 5 years of experience is made in the original work book, which gives the employee the right to receive a larger pension than he deserved according to the law.
Thus, the objective side lies in the conscious criminal actions of the attacker, as a result of which socially dangerous consequences occur. For example, issuing an illegal license to a carrier, falsifying employment history, deleting information about a criminal record.
The crime is completed at the moment of making the appropriate entries in the documents, drawing up forged papers, distorting information, which can be committed in different ways:
- entering false information;
- deleting correct information;
- falsification of a document;
- erasures, corrections, etc.
The objective side is supported by relevant evidence, the main of which is the actual corrected or forged documents.
Subject
Only representatives of the authorities - federal, regional or municipal (i.e. the subject of the crime is special) can commit official forgery. These may also be officials who perform the functions of a state or municipal employee on a permanent or temporary basis (police officers, prosecutors, employees of state corporations, etc.).
The subjective side of official forgery
It consists of the obligatory presence of selfish intent and personal interest of the criminal. He is fully aware of the dangerous nature of his act and foresees or must foresee the occurrence of the corresponding consequences. Thus, entering incorrect information by mistake or ignorance does not constitute official forgery.
In this case, intent can be associated with different driving motives:
- material interest;
- personal interest (close relationships);
- desire to embellish data to create a “normal” report;
- motive for concealing another crime (embezzlement, misappropriation of property, and much more);
- the desire to hide one’s own incompetence (to correct past mistakes, move up the career ladder, etc.).
Judicial practice: examples and position of the RF Armed Forces
The practice of considering cases of official forgery shows that judges accept guilty verdicts only when they receive evidence that the actions of the accused actually have intent associated with selfish interest.
EXAMPLE 1
Citizen I. worked as a senior foreman at a construction site. His colleague, accountant B., asked to make a note on the travel document, which confirms the fact of her absence for a certain time. She asked to make similar notes on the certificates of other business travelers. The foreman complied with her request, thanks to which the accountant reported to the inspectors for the shortage.
convicted citizen I. , but a higher court overturned the decision. The court considered that the foreman did not know that in fact accountant B. did not go on a business trip. There was no intent or selfish motive in his actions. Therefore, there is also no corpus delicti.
Another important point is the subject of the crime, i.e. forged documents. They must have truly important legal significance, i.e. generate significant consequences for citizens, society, and the state.
EXAMPLE 2
Citizen D. worked as an investigator. She is in charge of a case of illegal drug sales. Convincing evidence could not be found, and therefore the investigation timeline increased significantly. Wanting to embellish the picture, investigator D. marked the cases as completed and entered incorrect data into the statistical documents, certified them with a seal and signature and sent them to management.
The district court issued a guilty verdict , but the cassation court eventually overturned it. The court proceeded from the fact that statistical documents contain data that does not entail dangerous consequences. They are used only within the department where Citizen D worked, and therefore are not official.
The Supreme Court also makes a certain clarification, which indicates that only official documents that lead to important consequences “in the form of granting or deprivation of rights,” changing their scope, etc. can appear as part of a crime.
The definition of the subject of the crime is also of great importance - it can only be a civil servant or an official. Not all citizens fall into this category.
EXAMPLE 3
Citizen K. was the chief engineer at the enterprise and, by issuing illegal orders, appropriated part of its property. The district court saw fraud in these actions and issued a guilty verdict. The cassation authority determined that the engineer does not belong to the category of officials. Accordingly, this act should be defined as fraud, not forgery.
Conclusions from judicial practice
Based on the explanations of the Supreme Court of the Russian Federation and actual practice, several conclusions can be drawn about the enforcement of Article 292 of the Criminal Code:
- Documents can only be official, and the facts contained in it are of great importance in terms of legal consequences. The paper has certifying power, i.e. its content is not of a purely informational nature (statistical reports, data analysis, explanatory notes, etc.).
- The subject of a crime in the case of official forgery can only be those persons who, on the one hand, have access to such documents, and also have official authority to make changes to them. From this point of view, if a person who also has access, but does not have the right to certify documents with a signature/seal, corrects the information, such actions fall under another article of the Criminal Code.
- After falsification, the document must be included in the official document flow and thus lead to socially dangerous consequences. There is an analogy here with counterfeiting banknotes: as long as they are not sold, there is no threat to the economy. The danger comes only when counterfeits are introduced into circulation.
It is important to understand that judicial practice on official forgery is far from clear, and the explanations of the RF Armed Forces are not exhaustive. Most often, disputes arise around the content of documents, their legal significance, and the subject of the crime. Therefore, a specific decision largely depends on the position of the judge; accordingly, a conviction in a number of cases can be appealed to a higher authority.
Video commentary
Part 2, Article 292 of the Criminal Code of the Russian Federation – commentary
The public danger of official forgery in the form of violation of the rights of citizens/organizations or society/state is defined by the legislator in Part 2 of Article 292 of the Criminal Code of the Russian Federation. These crimes are more serious in nature, and, therefore, the punishment for them is more severe. The end of the crime is the fact of the occurrence of consequences of the actions of officials that resulted in a violation of the rights of citizens or the state. In this case, the investigation must establish a cause-and-effect relationship directly between the commission of the act and the consequences that followed. In this type of crime, the subjective side is characterized by direct or indirect intent; there can be no talk of any negligence.
