PRODUCTION AND DISTRIBUTION OF PORNOGRAPHIC MATERIALS OR OBJECTS OF A PORNOGRAPHIC CHARACTER.
CHILD PORNOGRAPHY.
Criminal lawyer under Article 343 of the Criminal Code of the Republic of Belarus
notes that according to statistics provided by law enforcement agencies, in the Republic of Belarus there is an increase in the number of crimes related to the distribution of pornographic materials. And, as a rule, in most cases, the transmission of pornographic information is carried out using mobile phones and via the Internet.
Be it any institution, transport or home - you are always in touch and ready to communicate. And how you want, having a minute of free time, to share with classmates, friends or just acquaintances some news, new images and pictures, photographs or videos downloaded from the Internet.
And here the question arises: How often do we think about what kind of picture, photograph or video we send to another person? What consequences could there be from the fact that I forwarded this picture to a third party and what could I face for this?
In this article we want to tell you what the production and distribution of pornographic materials is, what child pornography is, and what responsibility is provided for by the criminal legislation of the Republic of Belarus for these acts.
Currently, the Criminal Code of the Republic of Belarus contains two articles providing for liability for acts related to pornography - article 343 of the Criminal Code and article 343-1 of the Criminal Code.
You need urgent help from a lawyer under Article 243 of the Criminal Code of the Republic of Belarus. in Minsk - call: + 375 44 740-32-69 or + 375 29 693-63-43
What does criminal law say?
So that you, our dear readers, understand about these types of crimes, their characteristics and responsibilities, let’s dive into criminal law.
These articles are located in Chapter 30 of the Criminal Code of the Republic of Belarus “Crimes against public order and public morality.”
Article 343 of the Criminal Code of the Republic of Belarus
and
343-1 of the Criminal Code of the Republic of Belarus
have a number of signs (qualifying signs), depending on the presence of which, the actions of the guilty person are qualified by the investigation under the relevant part of the specified article of the Criminal Code of the Republic of Belarus, and for which responsibility and punishment arise, established by this part of the specified article, i.e. . sanction of the article.
The Criminal Code of the Republic of Belarus legally defines what constitutes a criminal offense under Article 343 of the Criminal Code and defines the qualifying features of this crime.
Such qualifying features for Part 1 of Article 343 of the Criminal Code of the Republic of Belarus are
:
— manufacturing
or
storage for the purpose of distribution or advertising
or
distribution
,
advertising
,
broadcast
or
public display
of pornographic materials, printed publications, images, films, videos or scenes of pornographic content, or other items of a pornographic nature.
Qualifying characteristics for Part 2 of Art. 343 of the Criminal Code of the Republic of Belarus are
:
— performing the actions specified in Part 1 of Art. 343 of the Criminal Code of the Republic of Belarus by a group of persons by prior conspiracy
or
by an organized group
or
using the global computer network Internet
, another
public telecommunication network
or
a dedicated telecommunication network
, as well as distribution, advertising, broadcast or demonstration
to a minor of
pornographic materials, printed publications, images, films, videos or scenes of pornographic content, other items of a pornographic nature committed by a person who has reached the age of eighteen.
Commentary to Art. 207 of the Criminal Code of the Russian Federation
The object of the crime is public safety. When this crime is committed, the normal activities of institutions, bodies, and organizations are disrupted, significant forces and resources of law enforcement agencies are diverted, and harm is caused to the interests of specific citizens.
The objective side of the crime consists of providing any person with knowingly false information about an impending explosion, arson, or other actions that create a danger of death, causing significant property damage, or the occurrence of other socially dangerous consequences. The content of the reported information is identical to the content of similar concepts used in Art. 205 of the Criminal Code of the Russian Federation “Terrorist act”.
For the crime under consideration, it is necessary that the knowingly false message contain information specifically about an impending act of terrorism, i.e. information about specific, although untrue, threats (for example, about the manufacture of an explosive device, its installation, the development of a plan to carry out a terrorist act, etc.). Therefore, a knowingly false message only about the desire or intention of a person to commit a terrorist act constitutes a crime under Art. 207 of the Criminal Code of the Russian Federation, does not form.
False information may be communicated both to authorities and to any natural or legal person or their representative. Information can be transmitted orally, in writing, using communications and other means. For example, placing fake explosive devices in public and other places should be regarded as a deliberately false report about an act of terrorism.
The difference between the crime under consideration and an act of terrorism in the form of a threat to commit socially dangerous acts is that, in relation to Art. 205 of the Criminal Code of the Russian Federation, the threat is real, the perpetrator intends to carry it out and has a real opportunity to do so. A deliberately false report of an act of terrorism means that there is no real possibility of causing harm through an explosion, arson, etc. and lack of intention to perform these actions.
The corpus delicti is formal, the act is completed from the moment knowingly false information is communicated to the addressee.
The subjective side of the crime is characterized by direct intent. The person is aware of the discrepancy between the reported information and reality, but wants to report it. The motive for the action can be anything, for example, hooliganism: the desire to check the “quality” of the work of law enforcement agencies, the desire to divert attention from a truly impending act of terrorism with a false call, etc.
General subject - a sane person who has reached the age of fourteen years.
Responsibility under the article “Pornography”
Responsibility
for the production and distribution of pornographic materials or items of a pornographic nature (
Article 343 of the Criminal Code of the Republic of Belarus
), the criminal legislation of the Republic of Belarus established today is as follows:
Part 1 of Article 343 of the Criminal Code of the Republic of Belarus
- provides for punishment in the form of community service, or a fine, or correctional labor for up to two years, or arrest.
Part 2 of Article 343 of the Criminal Code of the Republic of Belarus
- provides for punishment in the form of imprisonment for a term of two to four years.
Article 343-1 of the Criminal Code of the Republic of Belarus
, in contrast to Article 343 of the Criminal Code of the Republic of Belarus, contains a special element - the production and distribution of pornographic materials or objects of a pornographic nature
with the image of a known minor.
The qualifying features of Article 343-1 of the Criminal Code of the Republic of Belarus are similar to the qualifying features of Article 343 of the Criminal Code of the Republic of Belarus, with one significant and significant reservation about the “ depiction of a knowingly minor
" This is so-called child pornography.
Responsibility under the article “Child pornography”
Child pornography
- means any depiction, by any means, of a child performing actual or simulated sexually explicit acts, or any depiction of a child's genitals for primarily sexual purposes.
Part 1 of Article 343-1 of the Criminal Code of the Republic of Belarus
, provides for liability
for the production
or
storage for the purpose of
distribution or advertising or
distribution
,
advertising
,
broadcast
or
public display of
pornographic materials, printed publications, films, videos or scenes of pornographic content, other items of a pornographic nature with
the image of a known minor.
Part 2 Art.
343-1 of the Criminal Code of the Republic of Belarus
provides
increased liability
for the commission of actions specified in part 1 of this article, as well as for
their commission by a person who has previously committed crimes
provided
for in this article or part 2 of article 343 of the Criminal Code, or committed by a group of persons by prior conspiracy
or
using the global computer network Internet
,
another public telecommunication network
or
a dedicated telecommunication network
,
as well as using a knowingly minor
to produce pornographic materials, printed publications, films, videos or scenes of pornographic content, other items of a pornographic nature
with his image
.
Part 3 Art. 343-1 of the Criminal Code of the Republic of Belarus
provides for liability for actions provided for in parts 1 or 2 of this article, committed
by an organized group
, as
well as
with the use of a known minor for the production of pornographic materials, printed publications, films, videos or scenes of pornographic content
, other items of a pornographic nature with his image .
It should be noted
, that it is
the criteria of a person’s age
that are decisive for the criminal offenses of the above articles of the Criminal Code of the Republic of Belarus (Article 343 of the Criminal Code and Article 343-1 of the Criminal Code).
According to Art. 4 of the Criminal Code of the Republic of Belarus under minors
means a person who, on the day the crime was committed, was under the age of fourteen years, and
a minor
is understood to be a person who, on the day the crime was committed, was under the age of eighteen years.
Article 179 of the Code of the Republic of Belarus on Marriage and Family dated July 9, 1999 No. 278-Z defines age limits as follows:
“A person is considered a minor from the moment of birth until he reaches eighteen years of age.
A child until he reaches fourteen years of age is considered a minor.
A minor between fourteen and eighteen years of age is considered an adolescent."
Thus, a crime associated with the production and distribution of pornographic materials or objects of a pornographic nature depicting a minor ( child pornography
), is a more serious crime compared to the crime provided for in Article 343 of the Criminal Code of the Republic of Belarus.
The legislator, today, has provided for the following liability under Article 343-1 of the Criminal Code of the Republic of Belarus for the production and distribution of pornographic materials or items of a pornographic nature depicting a minor ( child pornography
), namely:
· according to Part 1 of Article 343-1 of the Criminal Code of the Republic of Belarus
punishable by correctional labor for up to two years, or arrest, or restriction of freedom for up to four years, or imprisonment for the same term;
· under part 2 of article 343-1 of the Criminal Code of the Republic of Belarus
- punishment in the form of imprisonment for a term of three to eight years with confiscation of property or without confiscation;
· under Part 3 of Article 343-1 of the Criminal Code of the Republic of Belarus
– punishment in the form of imprisonment for a term of five to thirteen years with confiscation of property or without confiscation.
The Criminal Code of the Republic of Belarus determined:
- the crime is recognized as committed by a group of persons by prior conspiracy
if the perpetrators agreed in advance to jointly commit this crime;
- the crime is recognized as committed by an organized group
, if it is committed by two or more persons who have previously united into a controlled stable group for joint criminal activity.
The concept of “ global computer network Internet”
“is quite actively used in national legislation, but there is no legal definition of this term.
In reference literature, the global computer network Internet is mainly understood as a worldwide system of interconnected computer networks for storing and transmitting information.
In most cases, the use of the Internet is defined as a method or means of committing this crime.
The concept of “public telecommunication network” and “dedicated telecommunication network” is given in Art. 34, 35 of the Law of the Republic of Belarus dated July 19, 2005 No. 45-Z “On Telecommunications”.
According to Article 35 of the above Law, the public telecommunication network
is a complex of interacting telecommunication networks designed to provide telecommunication services to all users of telecommunication services, including the distribution of television and radio broadcasting programs.
Public telecommunication networks include a wired broadcast network, a cellular mobile telecommunication network, and a fixed telecommunication network.
The difference between a dedicated telecommunication network
from a public telecommunications network is that it is intended for the provision of paid services to a limited circle of users of telecommunications services or groups of such users and is not connected to the public telecommunications network.
A person who has previously committed crimes
, provided for in Article 343-1 or part 2 of Article 343 of the Criminal Code, a person is recognized as having previously committed these crimes, the criminal record for which has not been cleared and expunged in the manner prescribed by law.
Let's now figure out what is pornography? What authority or what examination determines that the material or image belongs to pornography? What is the subject of crimes provided for in Art. 343 and 343-1 of the Criminal Code of the Republic of Belarus? What is the production, storage, advertising and distribution of pornographic materials? And what applies to pornographic materials and objects of a pornographic nature?
Subject
Crimes provided for in Articles 343 and 343-1 of the Criminal Code of the Republic of Belarus are pornographic materials and items of a pornographic nature.
We note that the content of these concepts is given in the Resolution of the Ministry of Culture of the Republic of Belarus dated May 8, 2007 No. 18 “On approval of the Instructions on the procedure for the production, circulation, display, rental, sale and advertising of erotic products, products containing elements of eroticism, violence and cruelty, products on sex education and sex education...".
Pornographic materials and objects of a pornographic nature
, in accordance with the Instructions, approved. Resolution of the Ministry of Culture of the Republic of Belarus dated May 8, 2007 No. 18 recognizes materials and objects in which sexual intercourse is recorded in a vulgar-naturalistic, disgusting-cynical, obscene manner, there is a self-directed, deliberate demonstration of mostly naked genitals, anti-aesthetic scenes of sexual intercourse , sexual perversions, sketches from life that do not meet moral criteria, insult the honor and dignity of the individual, placing it at the level of manifestations of animal instincts.
Recognition of materials or objects as pornographic
carried out on the basis of the results of relevant
expert opinions
, carried out in the manner established by the Regulations on the Republican Expert Commission for the Prevention of Propaganda of Pornography, Violence and Cruelty (REC), approved by Resolution of the Council of Ministers of the Republic of Belarus dated October 22, 2008 No. 1571.
We consider it necessary to note that the REC includes highly qualified representatives of government bodies, specialists from organizations and institutions: the educational institution “Belarusian University of Culture and Arts”, the Institute of Journalism of the Belarusian State University, the Belarusian Medical Academy of Postgraduate Education, the Directorate of Film and Video Arts of the Ministry of Culture of the Republic of Belarus, the Belarusian State Academy of Arts , National State Television and Radio Company, State Committee for Forensic Examinations of the Republic of Belarus.
The basis for conducting an appropriate examination of products is a resolution (definition) on the appointment of an examination of state bodies (officials) who have the right, in accordance with the law, to appoint an examination.
Objective side
crimes form active actions with various types of the subject of the crime listed in the disposition of Art. 343 and Art. 343-1 of the Criminal Code of the Republic of Belarus.
Manufacturing
is the creation of pornography (original or copy) by any means (printing, drawing, photography, video filming, etc.). Manufacturing also means making changes, altering (modifying) a product in order to give it a pornographic character.
At the same time, this action is completed
must be recognized from the moment the item is received in a form ready for perception.
It is a criminal offense to produce pornography
for the purpose
of distribution or advertising.
Under storage
This means the commission of any intentional actions related to the actual presence of pornographic materials or items of a pornographic nature in the possession of the perpetrator for the purpose of distributing (advertising) them.
The moment of completion of this act
To qualify it, the time from which storage began should be considered.
Spreading
may be expressed in release for circulation, advertising, transfer on any basis (sale, rental, donation or other form of alienation), including by display or display to someone.
And the Investigative Committee of the Republic of Belarus
adheres to this broad interpretation of
the “distribution”
of pornographic materials.
At the same time, the number of persons to whose attention these items were brought to the attention does not matter. It is enough to familiarize yourself with them by at least one person.
This type of action is completed
is considered from the moment the object comes into view of at least one unauthorized person.
Under advertising
one should consider the dissemination of information about the object of advertising in any form aimed at attracting attention to the object of advertising, generating or maintaining interest in it and (or) promoting it on the market.
Advertising includes performing such actions as announcing, communicating the terms of purchase, and displaying materials for public viewing.
Advertising is considered completed
from the moment the advertisement is placed in a form accessible for viewing.
An analysis of judicial practice shows that in most cases, advertising of pornography occurs when advertisements for the sale of products containing pornography are posted on the Internet, in the media, and in information resources.
Broadcast
- this is a specific form of information dissemination, which represents the initial transmission of a signal (information) carried out by a ground-based transmitter through a space satellite of any kind in encrypted or unencrypted form, intended for its reception by the consumer (Article 2 of the Law of the Republic of Belarus dated November 10, 2008 No. 455 -Z “On information, informatization and information protection”).
Advertising is an independent form of committing the crimes in question, and is a special type of distribution.
Finished "broadcast"
of these materials must be recognized from the moment they begin to be displayed.
Public demonstration.
In reference literature, “demonstration” means a public display of something or a public display in a visual way.
Public display
, in accordance with Art. 4 of the Law of the Republic of Belarus on “Copyright and Related Rights”, is the demonstration of the original or a copy of the work directly or display in the form of a photograph, slide, film, television frame on the screen or using another technical device or in any other way (in relation to an audiovisual work – display of individual frames out of sequence) in places where there are or may be present persons who do not belong to the usual circle of the family or close friends of the family of the person carrying out or organizing such a display.
Goals and motives
committed for the qualification of a crime do not matter, with the exception of committing acts in the form of production and storage of pornography, for the qualification of which it is mandatory to commit these acts for distribution or advertising.
The criminal law of the Republic of Belarus divides objects of a pornographic nature into pornographic materials
, printed publications, images, films, videos or scenes of pornographic content, as well as
other items of a pornographic nature
.
This classification is conditional, but its significance lies in specifying the subject of this crime in order to optimally cover the types of products that fall under its characteristics.
Pornographic materials
are any material media. These include films and videos, as well as other audiovisual works.
Pornographic publications
– these are materials reproduced (circulated) in printing, regardless of authorship and circulation size. An item that does not meet the criteria of a printed product, due to its pornographic content, will fall under the concept of “pornographic materials.”
At the same time, whether the crime provided for in Articles 343 of the Criminal Code of the Republic of Belarus or 343-1 of the Criminal Code of the Republic of Belarus was committed with pornographic materials or printed publications, this circumstance will not have any significance either for the qualification of the act or for the liability of the subject of the crime.
Items of a pornographic nature.
These, in particular, include those things that do not correspond to the characteristics of pornographic material or a pornographic printed publication, for example, things of a pornographic nature with the image of a minor (keychains, pens, pendants, etc.).
Thus, if you own a computer or smartphone, do not rush to copy video files, pornographic videos on the Internet and post them on your page on social networks (for example, on your personal VKontakte page), since users of social networks, without knowing it, to your page on social networks and by viewing this video, they contribute to the spread of pornography, since this video is in the public domain and can be seen by all persons and users.
In such a situation, according to the Investigative Committee of the Republic of Belarus, you have committed a crime, namely: public demonstration of pornographic materials using the Internet computer network (Part 2 of Article 343 of the Criminal Code of the Republic of Belarus).
Frequently encountered examples are the qualification of actions as the dissemination of pornographic information in the form of posting a “home video” on the global Internet or transferring it to a third party via a messenger.
Thus, before clicking on the “Tell Friends” button, think about the content of the given image or video that will end up on the user’s page. Many of you naively believe that by hiding your real name and surname, you will become inaccessible to law enforcement officers. However, as in other cases, punishment will inevitably come, and the secret will become apparent.
Remember that the Global Internet is the object of close attention of employees of the Main Directorate for Drug Control and Combating Human Trafficking of the criminal police of the Ministry of Internal Affairs of the Republic of Belarus (GUNIPTL KM of the Ministry of Internal Affairs of the Republic of Belarus), who conduct constant monitoring of networks and identify persons distributing pornography.
In addition, information about the availability of freely available pornographic materials or items of a pornographic nature, their transfer or receipt can come from ordinary citizens and even, strange as it may sound, from your friends and acquaintances (which you may not even be aware of)...
If you had to deal with any of the above, then you can safely contact us ( criminal lawyer in Minsk under Article 343 of the Criminal Code
Republic of Belarus) for
legal assistance ()
.
Not for selfish reasons...
In jurisprudence, it is a generally accepted fact that any theft is committed not only intentionally, but also for personal gain. However, the question of what a selfish goal includes and what specific actions may fall under the definition of self-interest continues to remain controversial both in the science of criminal law and in law enforcement practice.
Approaches to interpreting the content of a selfish goal
Today, there are two main approaches to the issue of the content of a selfish goal as part of theft. A selfish goal can be interpreted :
- or too broadly - as a desire to dispose of property as one’s own, to benefit oneself and/or other persons, whose circle is not limited;
- or too narrowly - as a desire for personal enrichment, transfer of property to one’s own benefit or to the benefit of loved ones.
This situation creates uncertainty in practice and allows for a situational interpretation of the provisions of criminal law. Let us cite as an example the materials of one criminal case .
The head of the district civil registry office offered citizens to pay for civil registry office services in cash in the same amount as if they had paid for these services officially through a bank, transferring the money to her. Thus, in a number of episodes it was established that the manager went to register weddings, but citizens did not pay for the marriage registration in the prescribed manner (they did not deposit money into a bank account), but settled with the manager on the spot. The money received in this way was completely spent on the needs of the registry office: the interior was updated, the roof was repaired, etc. This was due to the fact that the district budget did not provide the necessary funds, so money was needed in order not to bring the registry office to a deplorable state. The preliminary investigation authorities opened a criminal case under Art. 210 of the Criminal Code (theft by abuse of official powers). However, during the investigation, the question arose whether there really were signs of theft of other people's property, in particular, a selfish purpose.
As you can see, the main problem in this example came down to the fact that the manager did not take money for herself personally, but spent it entirely on the needs of the registry office, which was confirmed by the receipts she saved. In other words, the manager did not acquire things that she would personally use and would derive any benefit from it for herself. The manager benefited, but not selfishly, but in the language of the law – “other personal.” Nevertheless, even if we assume that it was another personal interest, then it (another personal interest) is not a sign of theft, since it characterizes a different, non-selfish motive for committing the act.
If in this case the selfish goal is interpreted too narrowly - namely, as the appropriation of someone else's property, regardless of the circumstance of how the person disposed of the stolen property, then in such a situation a selfish goal is indeed seen, accordingly, further it is necessary to talk about theft. That is, how the person disposed of the stolen property (where and what exactly the money was spent on) does not interest us. This is, in principle, true (in relation to the disposal of property), but then the following question arises: does the motive for committing theft really matter in such a situation ? Putting the question in a different way, we note: why, in the case of illegal seizure of property, does it not matter at all the fact for what purpose the illegal act was committed and where exactly the funds obtained illegally were intended to be spent? Indeed, in the case under consideration, it was not the head of the registry office who enriched himself, but the government agency as a legal entity, since its material and technical condition improved due to the lost funds from the district budget.
In this case, we cannot say that the manager took the money for herself, and therefore disposed of it as she wanted, i.e. improved the financial condition of the registry office. It seems that the situation looks different after all. The manager did not have a selfish goal , so it is impossible to talk about her committing theft of someone else’s property through abuse of official powers.
This problem can be looked at from the other side. From the point of view of social justice, it is impossible to put on the same scale cases when, for example, the chief accountant illegally accrues wages to himself and his relatives and appropriates this money, spending it on his own needs; and cases when the same chief accountant, out of pity or altruistic reasons, transfers money to the organization, without having the right to do so, to an orphanage for lonely and parentless orphans (while the accountant has no personal interest there). To say here that the criminal law does not make any differentiation and does not see any difference, assessing the actions of the chief accountant in both the first and second cases in the same way, is extremely harsh and unfair. In this case, it is the psychological component that is important , i.e. The motive for committing a crime is of great importance.
Therefore, in our opinion, these situations should be separated, and in such cases the responsibility should not be the same, since these are different actions from the point of view of the subjective component of the persons committing them and the goals they pursue. In part, today the criminal law does this, establishing in Art. 217 of the Criminal Code criminal liability for illegal gratuitous alienation in a significant amount (i.e. in the amount of more than 40 basic units on the day the crime was committed) of someone else’s property entrusted to the perpetrator, in the absence of a selfish goal.
Considering this situation, it should also be said that the question of the absence of signs of theft should be raised here not only because there is no selfish purpose, but also because the guilty person did not take possession of property from public funds . This money seemed to be intended for the state, but had not yet arrived. Therefore, the head of the registry office department did not seem to withdraw property (money) from the corresponding budget. Moreover, it did not have the authority to accept cash from citizens. These funds were not capitalized and were not listed on the organization’s balance sheet. Therefore, in this case we can talk about causing property damage without signs of theft , because this money was still intended for the state, and it was not received due. This is a classic situation for Art. 216 of the Criminal Code (causing property damage without signs of theft). And if such damage amounted to 40 basic units or more, then only then can we talk about bringing the person to criminal liability, otherwise there is administrative liability provided for in Art. 10.7 Code of Administrative Offences. The only obstacle here is the fact that, as stated in Art. 216 of the Criminal Code, a person must derive a property benefit . But the head of the registry office department did not derive any property (material) benefit for herself or her loved ones, and did not personally enrich herself from the funds received and used for the needs of the registry office. This indicates that she acted disinterestedly, and therefore, signs of a crime under Art. 216 of the Criminal Code are absent from her actions.
Qualification problems based on official status
As law enforcement officials point out, Art. 216 of the Criminal Code has many common features with Art. 424 of the Criminal Code (abuse of power or official authority). However, if in Art. 424 of the Criminal Code, the obligatory subject is an official , then in Art. 216 of the Criminal Code there is no such indication. This circumstance allows many scientists and law enforcement officials to draw a very subtle conclusion: if property damage to an organization or the state is caused by an official, then in such situations it is necessary to talk exclusively about Art. 424 of the Criminal Code, and not about Art. 216 of the Criminal Code <*>. In other words, we are talking about general and special criminal law norms, and in case of competition between them, a special norm must apply (in our case, Article 424 of the Criminal Code).
On this issue, it is usually stated in the criminal law literature that if an official, abusing his official powers, commits an act that is objectively expressed in causing property damage in the amount of 250 basic units, then there is precisely an abuse of power or official powers <* >, since such an act is committed exclusively by an official. In this regard, it is necessary to clearly distinguish between the official powers of an official and his purely professional duties that are not official. Consequently, liability for causing property damage under Art. 216 of the Criminal Code can only be enforced against an official who uses only professional and not official powers to cause property damage. And since Art. 216 of the Criminal Code does not contain a special qualifying feature “using official powers”, then when causing property damage using official powers, liability should arise only under Art. 424 of the Criminal Code (if all the signs of this crime are present).
Note that practice does not always adhere to these postulates and often, according to Art. 216 of the Criminal Code also condemns officials who use their official powers when committing an unlawful act.
Arbitrage practice
K., being the manager in the bankruptcy case of IChUP "K", in the period from 03/27/2001 to 04/04/2002, accepted under the report for further sale 39 items of property of IChUP "K" in the amount of 7,954,716 BYN. rub. (before denomination). By deliberately reducing prices for property to be sold, without coordinating this with the meeting of creditors, K. sold it at reduced prices, thereby violating the requirements of Art. 130 – 142 of the Bankruptcy Law, as a result of which PolyTorg LLC (creditor) suffered property damage in the amount of 4,552,822 BYN. rub. (before denomination), which is damage on a large scale. The court found K. guilty of causing property damage without signs of theft committed on a large scale <*>.
In this case, the bankruptcy manager is an official, and there were every reason to raise the question of bringing him to criminal liability under Art. 424 of the Criminal Code, and not under Art. 216 of the Criminal Code, but law enforcement agencies decided otherwise. This means that we can assume that, from the point of view of the law enforcement officer, the criteria for delimiting Art. 216 of the Criminal Code from Art. 424 of the Criminal Code there may be others, and they are not related only to the status of the subject .
Indeed, prosecutorial and investigative practice knows many cases of bringing to criminal liability precisely officials who use their powers to commit illegal acts, under Art. 216 of the Criminal Code. Most often, this was done precisely because it was impossible to prove the fact that an official, abusing his powers, committed an act contrary to the interests of the service.
Arbitrage practice
By the verdict of the Minsk City Court, B. and M. were found innocent and acquitted under Part 2 of Art. 216 and part 2 of Art. 380 of the Criminal Code for lack of proof of participation in the commission of crimes. By the ruling of the judicial panel for criminal cases of the Supreme Court of the Republic of Belarus, the verdict was left unchanged, and the cassation protest was not satisfied. The preliminary investigation body charged B. and M. with the fact that B., being a co-founder of D-91 LLC, in a preliminary conspiracy with M., the director of D-91 LLC, acting in a group of persons and having the intent to cause property damage on a large scale without signs of theft, by deceiving ZhREO employees, they caused damage on a large scale by extracting property benefits in the absence of signs of theft. M., in fulfillment of her role, produced a counterfeit copy of the license for the right of LLC “D-91” to carry out retail trade and public catering, which, obviously for the accused, testifies to the actual implementation of retail trade, which, in turn, gives the right to apply a reduced coefficient of 0.5 to the base rental rate, after which B., through P., not aware of his criminal intentions, presented a certified copy of the said license in order to extract property benefits for the rented areas of retail premises in the housing and communal services area. Based on this, ZhREO employees unreasonably recalculated the amount of debt of LLC “D-91” for rent downwards in the amount of 27,861,657 BYN. rub. (before denomination). The court came to the conclusion that the commission of crimes by B. and M. had not been proven, since the evidence presented by the prosecution was insufficient to conclude that they were guilty of the charges brought against them. The reason for the verdict was the different assessment by the investigation and the court of the evidence collected in the case.
As can be seen, in this case M. was an official, but she was charged under Art. 216 of the Criminal Code. This refutes the arguments that the subject of causing property damage without signs of theft cannot be an official, and in such situations the actions of officials must be qualified under Art. 424 CC.
From this point of view, it is impossible to resolve the issue purely in the same plane as Art. 216 of the Criminal Code is common in relation to Art. 424 CC. And if the infliction of property damage without signs of theft is committed by an official, then in this case the question must be raised about the application of Art. 424 CC. Even if some elements of the specified elements of crimes coincide, this does not give grounds for concluding that the specified legal norms are competing and the application of the rule on the operation of general and special norms . These are completely different standards, and the specified qualification rule does not apply here.
