Punishment for abuse of official position

Abuse of official powers is one of the most common malfeasances aimed at undermining the authority of the state and disrupting the normal functioning of government bodies. The perpetrator of this crime uses the powers granted to him by virtue of his official position for evil, contrary to the interests of the service. The number of registered crimes under Article 285 of the Criminal Code of the Russian Federation is decreasing from year to year: thus, according to the legal statistics portal, in 2012 just over 4 thousand such acts were identified, and in 2022 – more than 2.2 thousand. But this does not mean that fewer of these crimes are being committed. Abuse of official power has become more veiled, making it quite difficult to detect.

So, let's consider the elements of simple abuse of official powers, provided for in Part 1 of Article 285 of the Criminal Code of the Russian Federation.

Object: normal activities of state authorities and local governments, as well as state and municipal institutions. The rights and freedoms of people, as well as the economic interests of the state, can be considered as an additional object.
Objective side: the use by an official of his powers contrary to the interests of the service, if this act entailed a significant violation of the powers and interests of citizens, organizations, or the interests of society and the state. That is, formally the subject does not exceed his official powers, but his actions run counter to the interests of the service. Abuse can be committed through active action or through inaction.
Subject: an official vested with the powers of a government representative, or performing administrative, organizational, regulatory functions in government bodies, state and municipal institutions and other organizations with state participation.
Subjective side: direct or indirect intent. Motive - selfish or other personal interest, for example, the desire to curry favor with superiors, achieve high performance in the service, etc.

If all of the above signs are present, we can talk about abuse of power.

The article in question contains signs the presence of which entails a more severe punishment. Let's call them:

the subject of the crime is a person holding a government position in the Russian Federation, a position in a subject of the Russian Federation, or being the head of a local government body;
the act entailed grave consequences (for example, it could be industrial accidents, long-term disruption of the enterprise, causing significant material damage, etc.).

Concept of an official

Abuse of a position of official type is a crime only if committed by an official. This definition includes representatives of government agencies in their area of work.

The following citizens belong to this category:

law enforcement officers (regardless of department and level) who occupy certain positions in this structure (police, prosecutor's office, investigative committee);
employees of government bodies at the federal, regional or municipal levels, some positions in the government (regional, state), city halls, administrations;
representatives of government bodies performing other functions in these structures (heads of personnel departments, heads of economic management).

A citizen may be vested with authority on a permanent or temporary basis. In particular, jurors are considered temporary officials, who are considered as such only for the duration of the trial.

The scope and list of responsibilities as representatives of government agencies is determined by the clauses of the employment contract, orders or instructions. For example, according to the norms of federal laws on the police and on service in internal affairs bodies, police officers, within the framework of their official powers, have the right to use service weapons for the following purposes:

to prevent potential danger posed by third parties;
to apprehend an armed criminal (offender);
during an operation that allows the use of special means.

If, when using a weapon or performing other actions related to the powers of a citizen, there is abuse of official position, the guilty person bears responsibility for this according to the provisions of the Criminal Code.

Responsibility for abuse and excess of official powers by employees.

Inna Kachalova, Senior Associate at Goltsblat BLP.

The terms “excess” and “abuse” of official powers are used in criminal legislation that establishes liability for criminal acts against state power, the interests of (public) service and service in local governments (Articles 201, 285 and 286 of the Criminal Code of the Russian Federation).

Meanwhile, abuse of official powers and their excess may also entail consequences in the field of civil, corporate, labor, and tax legislation. The latter, however, does not make a clear distinction between “excess” and “abuse”.

Today, more and more often, employers have questions related to the excess and abuse of official powers on the part of employees, including the penalties that can be applied to such employees.

Abuse of official powers and their excess.

Exceeding official authority is the commission of actions by an employee that go beyond the scope of his official authority, regardless of the purpose of their commission. The most common examples of abuse of power are carrying out actions not related to the employee’s official duties (making decisions that are not within the employee’s terms of reference), collecting and selling confidential information (customer base, contract prices, etc.) that is not is available due to his official duties.

Abuse of official powers is associated with the use by an employee of his official powers contrary to the legitimate interests of the organization and in order to obtain benefits and advantages for himself or others or cause harm to others. For example, sales managers understating the cost of goods, selfish disclosure of trade secrets, embezzlement of the employer’s property.

Responsibility.

What measures of responsibility can be applied to an employee who has abused or exceeded his official powers?

Depending on the type of offense resulting from excess or abuse of official powers, measures of either criminal, administrative, civil, or disciplinary and financial liability may be applied to the employee.

Disciplinary and financial liability are types of legal liability to which an employer can independently bring an employee who has exceeded or abused his official powers.

Other types of liability established in the legislation of the Russian Federation (criminal, administrative, civil), to which such an employee may also be involved, are applied with the participation of the relevant authorized state bodies.

This article will discuss issues related to labor and civil aspects of excess and abuse of official powers, and provide recommendations to employers.

1. Bringing the employee to disciplinary liability.

The labor legislation of the Russian Federation provides the opportunity to bring an employee to disciplinary liability for committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him (Article 192 of the Labor Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation).

In order to confirm the non-fulfillment or improper performance by an employee of official duties, upon admission or appointment to a position, the employee must be familiarized with his official duties and powers against signature. The latter, as a rule, are enshrined in an employment contract or in other documents (charter, job description, local regulations, orders, Qualification Directory of Positions of Managers, Specialists and Other Employees [1]), a reference to which must be contained in the employment contract.

But is it possible to consider excess or abuse of official powers from the point of view of the labor legislation of the Russian Federation as failure to fulfill or improper performance of official duties?

In our opinion, failure to perform or improper performance of official duties includes not only violation or non-fulfillment of official duties of an employee or instructions of the employer, but also unlawful excess of official powers, as well as their unlawful non-use and abuse. Accordingly, excess and abuse of official powers may be considered non-fulfillment or improper performance of job duties.

However, in practice, difficulties often arise in bringing an employee to disciplinary liability due to the fact that job responsibilities and powers are not spelled out, that is, they are agreed upon orally, or do not correspond to the actual job function of the employee, or are recorded incompletely, etc. . In this regard, often the actions charged to employees as a disciplinary offense are not provided for by their job responsibilities, so the imposition of a disciplinary sanction may be declared illegal by the court. Meanwhile, job responsibilities determine not only the scope and limits of the functions performed by the employee and the tasks assigned to him by virtue of his position, but also the limits of responsibility to the employer.

In order to avoid disputes with an employee (including one who has exceeded or abused his official powers) regarding his job function, it is necessary to extremely carefully, clearly and in detail specify the official powers and responsibilities of the employee in documents at the stage of registering the employee’s employment. In addition, it is necessary to obtain the employee’s signature on documents certifying his familiarity with the job responsibilities.

The implementation of this recommendation may also make it possible to bring an employee who has exceeded or abused his official powers to criminal and disciplinary liability as an official.

Types of disciplinary sanctions.

Article 192 of the Labor Code of the Russian Federation provides for the following types of disciplinary sanctions: (1) reprimand; (2) reprimand; (3) dismissal for appropriate reasons. At the same time, the Labor Code of the Russian Federation does not allow the application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline.

In practice, in case of excess or abuse of official powers, finding a legal basis for the immediate dismissal of an employee is often difficult or simply impossible.

Labor legislation establishes the grounds on which employment relations with an employee can be terminated, including at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). The list of such grounds is exhaustive.

Is it possible to dismiss an employee who has exceeded or abused his official powers?

The labor legislation of the Russian Federation does not provide direct grounds for the dismissal of an employee in case of abuse or excess of official powers. However, the Labor Code of the Russian Federation establishes a number of grounds for termination of employment relations, which, under certain conditions, can be used by employers in the event of an employee exceeding or abusing his official powers.

(1) Excess or abuse of official powers in some cases can be classified as actions that give grounds for loss of trust and allow the termination of an employment contract with an employee at the initiative of the employer (Clause 7, Part 1, Article 81 of the Labor Code of the Russian Federation). Termination of an employment contract with an employee on this basis is possible only in relation to employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.), i.e. financially responsible persons and only on condition that they have committed such guilty actions that gave the employer grounds for loss of confidence in them, including in the case of selfish offenses committed by employees not related to their work [2].

Therefore, if excess or abuse of official powers for personal gain was committed, for example, by an employee engaged in the procurement of goods, then the specified grounds for dismissal cannot be applied to him.

(2) Exceeding or abuse of official powers may lead to the disclosure of secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his job duties, including the disclosure of personal data of another employee. This violation is grounds for termination of employment relations at the initiative of the employer (subparagraph “c”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation). The law regards such a guilty action by an employee as a one-time gross violation of his labor duties.

In order to apply disciplinary liability on this basis, it is necessary that:

the employer took measures in advance to protect the confidentiality of information, including defining a list of information constituting a trade secret, and the employee was familiarized with it against signature;
access to information constituting a commercial secret is limited by establishing a procedure for handling this information and monitoring compliance with such a procedure;
records were kept of persons who received access to information constituting a trade secret and (or) persons to whom such information was provided or transferred;
material media (documents) containing information constituting a trade secret are stamped “Trade Secret” indicating the owner of this information.

According to paragraph 43 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, if an employee challenges the dismissal under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secret protected by law or to the personal data of another employee, if this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose them.

(3) If the excess or abuse of official powers is expressed in the theft (including small) of someone else’s property at the place of work, embezzlement, intentional destruction or damage, the employment contract with the employee may be terminated, provided that the fact of theft, waste, destruction or damage to property was established by a court verdict that entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses (subparagraph “d”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation). In this case, dismissal is carried out regardless of the application of criminal or administrative measures to the employee [3].

It is impossible to dismiss an employee on this basis immediately after committing theft, embezzlement, intentional destruction or damage to the employer’s property, since it will take time to contact law enforcement agencies after identifying the fact of theft with a corresponding statement to initiate a case or initiate a case of an administrative offense, a verdict or a judge’s decision , body, official authorized to consider cases of administrative offenses, as well as for their entry into force. An employee may be dismissed within a month from the date of entry into force of the specified sentence or resolution.

(4) For the heads of the organization (branch, representative office), his deputies, who have exceeded or abused their official powers, the legislation provides additional grounds for termination of the employment contract.

Thus, if the excess or abuse of official powers on the part of the head of the organization (branch, representative office), his deputies and the chief accountant resulted in the adoption of an unfounded decision and resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization, it is permissible to terminate the employment agreement with the employee on the basis of clause 9, part 1, art. 81 Labor Code of the Russian Federation.

When deciding whether the decision taken was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if a different decision was made. Otherwise, the dismissal is considered illegal.

The employer also has the right to terminate the employment contract under clause 10, part 1, art. 81 of the Labor Code of the Russian Federation with the head of the organization (branch, representative office) or his deputies, if they committed a one-time gross violation of their labor duties. The question of whether the violation was gross is decided by the court, taking into account the specific circumstances of each case. In this case, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer. As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the organization.

Based on the content of clause 13, part 1, art. 81 of the Labor Code of the Russian Federation, termination of an employment contract with the head of an organization, members of a collegial executive body (for example, members of the board of directors who have an employment relationship with the employer) can be carried out on the grounds provided for in the employment contract itself. Among such grounds, it is advisable to provide for excess and abuse of official powers in the employment contract, as well as to disclose their content. In this case, the grounds for payment of compensation in the event of early termination of employment relations, provided for in Art. 279 Labor Code of the Russian Federation, no.

(5) In addition, the employer has the right to terminate an employment contract with any employee for repeated failure to perform labor duties without good reason, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated failure to perform work duties without good reason, it has not been removed or extinguished (clause 5, part 1, article 81 of the Labor Code of the Russian Federation). This means that for exceeding or abusing official powers, an employee can be subject to disciplinary action in the form of a reprimand or reprimand, if no disciplinary sanction was previously applied to the employee. If during the next year the employee commits a repeated disciplinary offense (violation of legal requirements, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.), the employer will have the right to terminate his employment with him. employment contract. If the employee already has an outstanding disciplinary sanction (that is, the sanction was imposed during the previous year and was not lifted by the employer), then excess and abuse of official powers may serve as grounds for termination of the employment contract.

Dismissal as a disciplinary measure in practice is often challenged by employees in court. The Plenum of the Supreme Court of the Russian Federation drew attention to the fact that in the case of a case on reinstatement of an employee at work, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer [4].

Based on current legislation and judicial practice, dismissal can be applied if the following conditions are met:

1. There must be sufficient grounds for imposing a disciplinary sanction, the fact of excess or abuse of official powers on the part of the employee must be proven, and labor offenses must be documented.

2. The procedure for imposing disciplinary action must be followed.

In the event of litigation, the employer will be required to provide evidence showing that:

1) the violation committed by the employee, which was the reason for dismissal, actually took place and could be the basis for termination of the employment contract;

2) the employer complied with the stipulated deadlines for applying a disciplinary sanction. Disciplinary sanction is applied no later than one month from the date of discovery of the misconduct (that is, the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions), not counting the time illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

Procedure for imposing disciplinary sanctions.

Article 193 of the Labor Code of the Russian Federation establishes that before applying a disciplinary sanction, the employer must request a written explanation from the employee. It is recommended to do this in writing. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. In this case, an act of failure to provide explanations must be drawn up.

After receiving a written explanation or drawing up an act of failure to provide explanations, an order from the employer is issued to apply a disciplinary sanction (dismissal of the employee) in form No. T-8, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The specified order is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order against signature, a corresponding act is drawn up.

Each act must contain an indication of the specific place and time of both the event and the drawing up of the act. The essence of the event should be described, including on what specific issue a written explanation was requested from the employee and for what reason he did not provide it, if this can be found out. Such acts must be signed by at least three persons who are maximally uninterested in the outcome of the case (HR department employees). The act deciphers all the signatures, indicates the positions (work performed) of the signatories (there must be at least two of them), and their addresses of residence.

Article 392 of the Labor Code of the Russian Federation establishes a one-month period for their application for resolution of a dispute over dismissal. In practice, in most cases, employees are reinstated in their jobs in the absence of sufficient grounds for applying disciplinary measures or in violation of the procedure for applying disciplinary sanctions. The courts are predominantly focused on workers, and even minimal violations in the procedure for bringing to justice are grounds for declaring disciplinary action illegal and reinstating workers at work. In this regard, it is recommended to be very careful when terminating an employment relationship as a disciplinary measure, and to evaluate in each specific case the sufficiency of the grounds and the risks of subsequent reinstatement at work.

Labor legislation does not contain any other grounds for terminating an employment contract that would serve as a form of disciplinary action for abuse and exceeding official powers. If there are no legal grounds for applying disciplinary action in the form of dismissal, it is permissible to apply another type of disciplinary sanction (remark or reprimand) subject to compliance with all requirements of the labor legislation of the Russian Federation. As a result of the application of a disciplinary measure, an employee may lose a bonus if one of the conditions for its payment is the absence of disciplinary sanctions.

2. If an employee who exceeds or abuses his official powers causes damage to the organization or third parties, the labor legislation of the Russian Federation allows the employee to be held financially liable. In accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Thus, the concept of “direct actual damage” coincides in scope with the concept of “real damage” contained in civil legislation (Article 15 of the Civil Code of the Russian Federation).

Damage caused by an employee to third parties should be understood as all amounts paid by the employer to third parties to compensate for damage. Rostrud drew attention to the fact that an employee can only be held liable within these amounts and subject to the simultaneous presence of the following conditions:

unlawful behavior (actions or inaction) of the perpetrator;
causal connection between the unlawful act and material damage;
guilt in committing an illegal action (inaction) [5].

Direct actual damage in case of excess or abuse of official powers may include, for example, payment by the employer of a fine, property losses due to the alienation of the employer’s property at a significantly reduced cost.

But the employer cannot recover from an employee, for whom limited financial liability is established, direct actual damage caused to the employer by the employee in full. Limited financial liability consists of the employee’s obligation to compensate for direct actual damage caused to the employer, but not in excess of the maximum limit established by law in the amount of the employee’s average monthly earnings (Article 241 of the Labor Code of the Russian Federation). Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. At the same time, according to Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20% of the wages due to the employee. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery is carried out in court. Financial liability in the full amount of damage caused to the employer can be assigned to the employee only in cases expressly determined by the Labor Code of the Russian Federation or other federal laws. The list of cases of full financial liability of employees is established by Art. 243 Labor Code of the Russian Federation. This list is closed and cannot be supplemented either by local acts of the employer or by an employment contract. For example, financial liability in the full amount of damage caused is assigned to the employee in the event of damage caused as a result of the employee’s criminal actions established by a court verdict.

Agreements on full financial liability can be concluded only with those employees and for the performance of those types of work that are provided for in the List of Positions and Works replaced or performed by employees with whom the employer can enter into written agreements on full individual financial liability for shortages of entrusted property (approved by a resolution of the Ministry of Labor Russia dated December 31, 2002 No. 85). The above list of positions and works is exhaustive and is not subject to broad interpretation.

The employer has the right to go to court in disputes about compensation by the employee for damage caused to the employer within one year from the date of discovery of the damage caused (Part 2 of Article 392 of the Labor Code of the Russian Federation).

Circumstances that are essential for the correct resolution of a case of compensation for damage by an employee, the obligation to prove which rests with the employer, in particular, include:

absence of circumstances excluding the employee’s financial liability;
illegality of behavior (actions or inactions) of the harm-doer;
the employee’s guilt in causing the damage;
a causal relationship between the employee’s behavior and the resulting damage;
the presence of direct actual damage;
the amount of damage caused;
compliance with the rules for concluding an agreement on full financial liability.

A causal connection between the employee’s unlawful behavior and direct actual damage will only occur if the employee’s unlawful behavior preceded in time the infliction of direct actual damage and if this damage was caused by the employee’s unlawful behavior. Otherwise, the employee’s financial liability is excluded.

The employer must prove the amount of damage caused by the actions or inaction of the employee, as well as the causes of the damage independently. This amount is determined by actual losses, which are calculated based on market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property (Article 246 of the Labor Code of the Russian Federation). If the damage was caused by several employees, it is necessary to determine the degree of guilt, type and limit of liability for each of them individually.

Compensation for damages is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.

The employer also has the right to apply to the guilty person, in addition to the measures provided for by law to compensate for the damage caused, other measures of material sanctions, such as deprivation of bonuses, remuneration based on work results, etc. In our opinion, it is advisable to include such measures in the local regulations of the organization, including in the bonus regulations. 3. Some employees can be held liable for property under the civil legislation of the Russian Federation. We are talking about the leaders of the organization.

In cases provided for by federal law, the manager compensates the organization for losses caused by his guilty actions. In particular, the head of the organization is obliged to compensate for the losses caused by his guilty actions in accordance with Art. 71 of the Law on JSC, art. 44 of the LLC Law, art. 25 of the Law on State and Municipal Enterprises. In this case, the calculation of losses is carried out in accordance with the norms provided for by civil law. In accordance with Art. 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil law. turnover if his right had not been violated (lost profits).

Thus, the head of an organization who has committed excess or abuse of official powers, unlike other employees, can be held liable in full, that is, direct actual damage (real damage) and lost profits.

In relation to the recovery of lost profits, civil law does not give the court the right to reduce the amount of damages to be recovered from the faulty counterparty, depending on the degree of guilt, the property status of the debtor, etc. But by virtue of Art. 250 of the Labor Code of the Russian Federation, the body for the consideration of labor disputes may, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee, including from the head of the organization, with the exception of cases where the damage was caused by a crime committed for personal gain. purposes. A claim for compensation for damages can only be valid if the excess or abuse of power committed by the manager caused losses to the organization. If an action or inaction committed by a manager may cause losses to the organization, the organization and its participants have the right to take other protective measures, including challenging the transaction made by the manager, bringing the manager to disciplinary liability, etc.

In practice, in order to limit the manager’s liability, the employment contract sometimes provides for a condition limiting or reducing the manager’s liability for simple or gross negligence. Unlike the condition of exemption from liability for intent, this condition is valid, due to which it must be enshrined in the employment contract. So, in order to establish the existence of excess or abuse of official powers on the part of an employee and to apply liability measures to the relevant employee, it is necessary, when concluding an employment relationship with an employee, to draw up in detail and accurately all the necessary documents, including an employment contract, job descriptions, local regulations and etc. This will allow the employer to more effectively use the legal mechanisms established by law in case of violations by employees.

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[1] Approved by Resolution of the Ministry of Labor of Russia dated August 21, 1998 No. 37. [2] Paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” [3] Resolution of the Presidium of the Samara Regional Court dated 08/05/2004. [4] Paragraph 23 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” [5] Letter of Rostrud dated October 19, 2006 No. 1746-6-1.

Who is harmed by illegal actions of officials?

Abuse of official position (giving a bribe, receiving a bribe, committing other illegal actions), depending on the circumstances under which it took place, is considered an act of moderate, minor or grave degree.

As a result of deliberate misuse of official position, damage may be caused to the following objects:

enterprises, organizations, institutions, other legal entities;
individuals;
interests of the state and society.

The difference between excess and abuse of power

Abuse of official position under the Criminal Code of the Russian Federation is considered in Article 285, and abuse of power in Article 286. Abuse is actions that are not provided for by the official duties of the offender, for example, the use of a service weapon by a police officer against a citizen whose actions do not pose a danger to others.

Exceeding is the fulfillment of one’s powers with a slight overstepping of their limits. Often this offense is committed without any selfish goals. Punishment for such actions is often not prescribed under the Criminal Code. In most cases, such crimes are converted into disciplinary offenses if there is no evidence against the employee that the act was selfish.

Assistance from a lawyer under Article 285 of the Criminal Code of the Russian Federation

Of course, a lawyer is necessary under Article 285 of the Criminal Code of the Russian Federation, and not just anyone, but someone who has extensive experience working under this article. This is explained by the fact that quite often law enforcement agencies investigating a crime can put pressure on the suspect or accused, forcing him to “in passing” confess to other crimes. That is why a criminal lawyer should get involved in a case as early as possible, ideally at the pre-investigation stage. In this case, there is a chance that criminal proceedings will not be initiated.

If, nevertheless, a criminal case was opened against an official under Article 285 of the Criminal Code of the Russian Federation, the lawyer can achieve:

termination of a criminal case (criminal prosecution);
reclassification of the act from parts 2-3 to part 1 of Article 285 of the Criminal Code of the Russian Federation, which provides for a more lenient punishment;
exemption from criminal liability upon imputation of Part 1 of Art. 285 of the Criminal Code of the Russian Federation, if the crime is committed for the first time (with the imposition of a court fine, for the reconciliation of the parties, in connection with active repentance);
reclassification of the act to another article of the Code, providing for a more lenient punishment (for example, under Article 293 of the Criminal Code of the Russian Federation “negligence”);
assigning the most lenient punishment possible;
sentencing below the lowest limit;
imposing only the main punishment without applying an additional one;
rendering an acquittal.

What to do if the verdict has already been passed? In this case, contacting a lawyer will also not be superfluous, since the specialist can appeal the judicial act, achieving a more lenient punishment.

If you have any questions or would like to enlist the support of a defense lawyer for malfeasance, please contact JSC “Trial Advocate”. Timely assistance from a specialist will allow you to develop a defense position and avoid mistakes that can lead to tragic criminal legal consequences.

Types of sanctions for abuse of power

For exceeding authority or committing other illegal actions (refusal to perform actions), the following types of sanctions may be imposed:

a fine, the amount of which ranges from eighty to one hundred thousand in rubles, or the income of the offender for six months;
forced labor for up to four years;
imprisonment for a term of four to six months;
imprisonment of a citizen for a maximum period of four years.

Any of these types of punishments may be accompanied by deprivation of the right to occupy certain positions or perform a certain type of work.

Possible liability for excess and ZDP

The Criminal Code fully describes situations of excess and abuse by persons of their official position and provides for various types of punishment depending on the severity of the crime committed. So, according to Art. 285 of the Criminal Code of the Russian Federation, abuse committed by a person who does not have the status of a government position of the Russian Federation, or the corresponding position of a subject of the Russian Federation, and who does not head local self-government bodies provides for:

A fine of up to 80 thousand rubles or six monthly income;
Deprivation of the right to hold a position or engage in certain types of activities for a period of up to five years;
Forced labor or imprisonment for up to 4 years;
Arrest lasting from 4 to 6 months.

Similar sanctions are provided in accordance with Art. 286 of the Criminal Code of the Russian Federation - excess of existing powers. For persons who hold the above-mentioned government positions, abuse of excess provides for more stringent measures taken:

A fine ranging from 100 to 300 thousand rubles or in the amount of income for a period of one to two years;
Forced labor for a period of up to five years, together with deprivation of the right to occupy certain positions for three years or without this condition;
Imprisonment for up to seven years.

Also, Art. 285 of the Criminal Code of the Russian Federation provides for mandatory imprisonment for a period of three to ten years, simultaneously with a three-year period of deprivation of the right to occupy certain positions, if the crime ultimately entailed grave consequences. Similar sanctions are regulated for abuse of power that actually entailed grave consequences, which was committed with the use of weapons, violent acts, or under the threat of such use.

In addition, Russian legislation provides for separate methods of qualification for embezzlement of budgetary and extra-budgetary funds, entering false and unreliable information into existing state-level registers, misappropriation of the powers of officials and other similar crimes regulated by other articles of the Criminal Code. Therefore, the correct qualification of an existing crime is an important task for an official investigation when subsequently applying to the justice authorities.

Certain internal orders of government bodies and internal regulations may also provide for the imposition of disciplinary sanctions, including both reprimands, reprimands or dismissals provided for by federal law, and those contemplated directly by the internal instructions of individual institutions. An example of such disciplinary sanctions could be demotion or a severe reprimand in the structures of the Ministry of Internal Affairs.

Judicial practice on abuse of power

One example of judicial practice is the investigation of a case of abuse of power by police department employees. Officials detained the drunk citizen and placed him under arrest. For five days, the person was kept in a cell without filing an application with the court or being given the right to contact a representative.

Due to inadequate care and poor nutrition, a diabetic citizen's sugar increased, which is why he was forced to seek hospital treatment. Police officers for these actions were punished with a fine in the amount of six months' income and dismissal from service.

Another example is fictitious employment of relatives by the director of an educational institution. They were on the staff in various positions, but did not work. The defendant took their wages for herself. For these actions, a criminal case was opened against the citizen.

Classification of officials

1) Contents of functions

government representative
organizational and administrative,
administrative and economic.

The functions of a government representative arise from the law; decisions are binding on an indefinite number of persons. The forester of the Limited Liability Partnership "Leskhoz" will serve as a representative of the authorities, since he is a state inspector for forest protection.

Organizational and administrative

features include e.g.

team management,
placement and selection of personnel,
organization of labor or service of subordinates,
maintaining discipline,
application of incentive measures and imposition of disciplinary sanctions.

To administrative and economic

functions can be attributed, in particular,

powers to manage and dispose of property and funds on the balance sheet and bank accounts of organizations and institutions, military units and subdivisions,
making decisions on payroll, bonuses,
exercising control over the movement of material assets,
determining the order of their storage, etc.

2) Grounds and procedure for performing functions

order of appointment to a position,
job descriptions,
articles of association,
special authority, etc.

Sometimes the question arises about the possibility of qualifying crimes under Art. 285 of the Criminal Code of the Russian Federation, if the official:

held his position unreasonably,
was on vacation
committed illegal actions not on its territory (for example, a local police officer
),
is a trainee, assistant
by virtue of the law, the person should not have, but actually held the position (for example, an investigator is not a citizen of the Russian Federation
).

In such cases, the person is considered a proper subject

, but there were situations where court decisions were overturned by a higher authority (including in supervision) on these grounds.

However:

trainees are definitely not subjects of malfeasance;

trainees who hold positions, but are not certified in the prescribed manner, do not have special titles, class ranks, etc., within the meaning of the law, should be subject to criminal liability, since they exercise their powers in the prescribed manner, but in different regions the practice goes according to in different ways.

In practice, there are cases when a person performing organizational, administrative or administrative functions is delegated power (for example, ship captains, in accordance with the provisions of the Code of Criminal Procedure of the Russian Federation, can perform the functions of an inquiry body

). In such circumstances, these persons should be held criminally liable for official crimes.

3) Place of exercise of powers

bodies of state power and local self-government;
state and municipal institutions;
non-governmental organizations with a controlling stake (the right to control more than 50% of the votes in the supreme governing body) of the Russian Federation, a subject of the Russian Federation;
state extra-budgetary funds;
Armed forces of the Russian Federation, etc.

The essence of malpractice

This definition is discussed in Article 285 of the Criminal Code. The acts considered by this norm include various types of use of official positions for selfish purposes by citizens in government structures. Moreover, these actions must violate the interests and rights of organizations and citizens.

The main object of the crime is the interests of the public service. An additional object is the interests of legal entities and individuals.

The subject of a criminal offense is a person holding a certain position. According to the law, punishment will be applied for criminal acts and inaction of these persons. For example, if an employee of a government agency does not fulfill his powers, as a result of which a third party receives any benefits for a fee.

In order for an action to be recognized as a crime, it is necessary to establish the presence of two facts: self-interest and intent. In addition, the consequences of the offense must be significant for the victims (for example, many victims, a significant amount of property damage and moral harm, violation of the constitutional rights of citizens).

The motives for the crime are considered to be self-interest or other personal interests. In the case of self-interest, the offender tries to obtain a material benefit or avoid unnecessary costs; in the case of personal interest, the offender tries to obtain an intangible benefit.

Subject of the crime

1. In Art. 201 of the Criminal Code of the Russian Federation performing managerial functions

in a commercial or other organization a person is recognized who permanently, temporarily or by special authority performs organizational, administrative or administrative duties in a commercial organization, regardless of the form of ownership, as well as in a non-profit organization that is not a state body, local government body, state or municipal institution.

2. In Art. 285 of the Criminal Code of the Russian Federation a) Officials

persons are recognized who permanently, temporarily or by special authority exercise the functions of a government representative or perform organizational, administrative, administrative and economic functions in

government agencies,
local government bodies,
state and municipal institutions,
state extra-budgetary funds,
state corporations,
state companies,
public law companies,
state and municipal unitary enterprises,
business entities in the supreme governing body of which the Russian Federation, a subject of the Russian Federation or a municipal entity has the right to directly or indirectly (through persons controlled by them) dispose of more than fifty percent of the votes or has the right to appoint (elect) a sole executive body and (or) more than fifty percent of the composition of the collegial management body,
joint-stock companies in respect of which the special right to participation of the Russian Federation, constituent entities of the Russian Federation or municipalities in the management of such joint-stock companies (“golden share”) is used,
Armed Forces of the Russian Federation,
other troops and military formations of the Russian Federation.

b) Persons holding government positions in the Russian Federation

are persons established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies.

c) Under persons holding government positions in constituent entities of the Russian Federation

, refers to persons established by the constitutions and charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies.

d) The head of a local government body is the highest official of a municipal entity, endowed by the charter of the municipal entity with its own powers to resolve issues of local importance

There are 2 points of view on the definition of officials:

1) persons holding public positions in the Russian Federation and constituent entities of the Russian Federation are the President of the Russian Federation, the Chairman of the Government of the Russian Federation, chairmen of the chambers of the Federal Assembly of the Russian Federation, ministers, heads of legislative and executive power of constituent entities of the Russian Federation and other persons.

2) a subject of qualified abuse of official powers can also be a civil servant holding public positions of category B, i.e., according to the Register of public positions of federal civil servants - public positions of the federal public service established to directly ensure: the execution of the powers of the President of the Russian Federation, the activities of the Council the Federation of the Federal Assembly, the Chairman of the Federation Council of the Federal Assembly of the Russian Federation and his deputies, the activities of the State Duma of the Federal Assembly of the Russian Federation, the activities of the Government of the Russian Federation, the Chairman of the Government, his deputies and members of the Government, the Constitutional Court of the Russian Federation, the Chairman of the Constitutional Court of the Russian Federation, the judge - secretary of the Constitutional Court of the Russian Federation, the activities of the Chairman of the Supreme Arbitration Court of the Russian Federation and his deputies, the Chairman of the Central Election Commission of the Russian Federation, the Chairman of the Accounts Chamber of the Russian Federation, his deputies and auditors of the Accounts Chamber.

The first point of view seems to be the most correct, since according to the Constitution of the Russian Federation, state power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly of the Russian Federation (Federation Council and State Duma), the Government of the Russian Federation, and the courts of the Russian Federation. State power in the constituent entities of the Russian Federation is exercised by the state authorities formed by them. These persons directly exercise the powers of state bodies, and state civil service positions of category B only ensure the execution of the powers of the President of the Russian Federation, members of the Government of the Russian Federation and the Federation Council, deputies of the State Duma and judges of the Russian Federation. If we interpret criminal legislation literally, then the phrase “direct execution of powers” is not identical to the phrases “direct provision of powers” and “support of activities”.

3. The concept of a government representative

given in the note to Article 318 of the Criminal Code: he is recognized as an official of a law enforcement or regulatory agency, as well as another official vested with administrative powers in accordance with the procedure established by law in relation to persons who are not officially dependent on him.

Types of sanctions for abuse of official position

For giving a bribe or committing other illegal actions (refusal to perform actions), the following types of sanctions may be imposed:

a fine, the amount of which ranges from one hundred to three hundred thousand rubles, or the income of the offender for a year or two;
forced labor for up to five years;
imprisonment of a citizen for a maximum period of seven years.

Any of these types of punishment may be accompanied by deprivation of the right to occupy certain positions or perform a certain type of work for three years.

Special formulations

The punishment for abuse of official position may be increased if these actions lead to serious consequences. In this case, the period of detention is increased to ten years with deprivation of the right to work in a certain field for a three-year period.

More severe sanctions are applied to civil servants and other employees who abuse the powers of their positions. Therefore, these employees must have authority. Otherwise, they will be held liable under other provisions of the Criminal Code of the Russian Federation.

According to the provisions of the article of the Criminal Code, abuse of official position involves the commission of active actions in order to realize personal gain and interest.

Liability under Article 285 of the Criminal Code of the Russian Federation

As for the punishments for abuse of official powers under Part 1 of Article 285 of the Criminal Code of the Russian Federation, they are alternative:

a fine of up to 80 thousand rubles (or in the amount of the earnings of the guilty person for a period of up to six months);
up to 5 years of ban on holding certain positions or engaging in certain activities;
up to 4 years of forced labor;
from 4 to 5 months of arrest;
up to 4 years in prison.

“What punishment do subjects most often receive for abuse of power? According to the Judicial Department under the Armed Forces of the Russian Federation , the vast majority of those convicted are fined, and quite often citizens are deprived of the right to hold certain positions. Imprisonment is used, but rarely (mostly, courts impose no more than 1 year of imprisonment).”

If there are aggravating circumstances, the punishment will naturally become more severe. Thus, if the subject held a government position in the Russian Federation, then the maximum sanction is up to 7 years of imprisonment with a ban on holding certain positions for 3 years. If the act entailed grave consequences, then the punishment is only placement in a colony for up to 10 children with a ban on holding certain positions for 3 years.

However, a negative consequence of initiating a case under Article 285 of the Criminal Code of the Russian Federation will also be the loss of one’s position. A “dark spot” in the form of a criminal record under this article will actually bar a citizen’s access to service in state and municipal authorities.

Note that in practice, abuse of power is often combined with other crimes - official forgery, taking a bribe, etc., which directly affects the final sentence. Let's give a couple of real examples.

The former head of the Ministry of Internal Affairs of the Russian Federation for the Tomsk Region, Igor Mitrofanov, was convicted of bribery on an especially large scale, abuse of power, and also for fraud in receiving payments. According to investigators, Mitrofanov deliberately ignored the illegal actions of his subordinate, who was extorting a bribe from a person suspected of illegal banking activities. In addition, the former law enforcement officer received various property preferences from the business partner of his relatives in exchange for general patronage. It was also established that Mitrofanov provided false data to the financial support center, which is why the overpayment of his pension for the year amounted to more than 200 thousand rubles. The court found the ex-chief guilty of committing the crimes charged to him: Mitrofanov received a suspended sentence of 8 years in prison, a fine of 6 million 475 thousand rubles, and a ban on holding positions in the Ministry of Internal Affairs of the Russian Federation for 5 years.

Now let’s give an example when a guilty official received a real sentence.

The former deputy head of the department of the Ministry of Internal Affairs of the Russian Federation for the Lefortovo district, Anzor Shulaya, was found guilty of abuse of power, official forgery, fraud on an especially large scale and misappropriation (embezzlement) on an especially large scale. Judging by the case materials, the law enforcement officer returned the stolen jewelry with a total value of more than 350 million rubles, which is evidence, to the jewelry store in exchange for a certain “reward.” In addition, Shulaya was involved in forging documents in criminal cases with the aim of partially appropriating valuable material evidence. As a result, the court sentenced Shulay to 8 years in a general regime colony, stripped him of the title of major of justice and prohibited him from carrying out organizational and administrative activities for 3 years.

Types of personal interest

Abuse of official position for personal gain occurs for two reasons:

material interest - receiving a certain amount of money or property rights (for example, a loan at a reduced rate, rent), as well as exemption from certain material obligations (for example, from repaying loan debt);
intangible interest - patronage, career advancement, obtaining documents, etc.

Judicial practice on abuse of power

According to the article in question, punishment for abuse of official position will be imposed depending on the severity of the act. Let's consider several examples of crimes of varying severity for which sanctions are applied under Article 185 of the Criminal Code of the Russian Federation:

an employee of the traffic police department issued a false accident report, in which he indicated damage to the car, which in fact did not exist, in order to increase insurance payments to the motorist and share the profit with the car owner;
the head of the municipal district administration employed a relative, illegally dismissing another employee from this position, while the new employee had neither qualifications, education, nor experience in the relevant position.

Consequences of the crime

Part 3 Art. 285 of the Criminal Code of the Russian Federation indicates the onset of grave consequences

. According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 16, 2009 No. 19, these include:

major accidents,
long transport stop
long stoppage of the production process,
other violation of the organization’s activities,
causing significant material damage,
causing death by negligence,
suicide or attempted suicide of the victim, etc.

Conclusions on judicial practice

Apart from the Criminal Code, abuse of official position is dealt with in Ordinance No. 19, issued by the Supreme Court on October 16, 2009.

Based on these legal acts, a number of conclusions can be drawn:

When determining the gravity of the crime committed, judges are required to take into account whether the accused has real authority as an official.
If a citizen works in a commercial company and commits similar actions without being an official, he must be tried under Article 201 of the Criminal Code.
If during the commission of a crime negative consequences occurred only for a legal entity and did not affect the interests of society or the state, a criminal case will be initiated only after the filing of an application by the head of the affected organization.
If a citizen acted at the direction or order of a superior leader, his actions will not be considered a crime.

Abuse of position is not uncommon. However, its presence must be proven. It is also important to prove the existence of consequences and the official concerned.