Verdict in criminal case No. 01-008/38/2020

Persons holding positions in the civil service are prohibited from carrying out entrepreneurial activities, as well as being at the head of the management of a commercial organization. The law says so. This prohibition is primarily due to the fact that officials who illegally participate in commercial activities begin to use their official position and create corrupt connections, which harms active service. Therefore, government officials who violate the established norms will be prosecuted under Art. 289 of the Criminal Code of the Russian Federation. Punishment here can even be in the form of real isolation from society.

Basics

Art. 289 of the Criminal Code of the Russian Federation contains punishment for officials who broke the law and organized their own commercial enterprise for personal enrichment and additional income. In addition, these citizens are subject to prosecution if:

- they manage the company personally or through a trusted person;

— create preferential conditions for the activities of this organization (for example, help evade paying taxes and other mandatory contributions using their official position and connections);

- patronize a commercial organization.

The ban on participation in entrepreneurial activities applies to all government employees without exception. The exception here is those cases when an official carries out special instructions from his management and takes over the management of a profit-making organization, if the law so specifies.

Commentary on Article 289 of the Criminal Code of the Russian Federation

1. In accordance with Art. 17 Federal Law “On the State Civil Service of the Russian Federation”, civil servants do not have the right to engage in entrepreneurial activities (except for pedagogical, scientific and creative activities) personally or through proxies, including participation in the management of an economic entity, regardless of its organizational and legal form, except in cases when direct participation in the management of a business entity is included in their job responsibilities in accordance with the law. The specified restrictions in accordance with Art. 11 Federal Law “On the Fundamentals of Municipal Service in the Russian Federation” also applies to municipal employees. Similar prohibitions are also established by some other laws regulating the activities of certain categories of employees (for example, the Law on the Police, Article 40.2 of the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation” (as amended on November 4, 2005) <1> and etc.). ——————————— <1> NW RF. 1995. N 47. Art. 4472.

2. The social danger of the crime lies in the fact that in addition to the interests of service in state bodies and local self-government bodies, in state and municipal institutions, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, it also affects the normal functioning of the economic sphere.

3. The object of criminal encroachment is social relations that ensure the normal functioning of a specific level of government bodies, the state administration apparatus, local government bodies, state and municipal institutions, as well as the management apparatus in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. An additional object is the procedure for engaging in entrepreneurial activities, excluding the possibility of direct participation of officials in the implementation of such activities.

4. The objective side of the crime can be expressed in the commission of one of two actions: a) the establishment by an official of an organization engaged in entrepreneurial activities, contrary to the prohibition established by law; b) participation of an official (personally or through a proxy) in the management of an organization engaged in business activities, despite the prohibition established by law. The CR occurs provided that the actions of the perpetrator are related to the provision of benefits and advantages to this organization or to patronage of it in another form.

4.1. On the concept of entrepreneurial activity, see commentary. to Art. 169.

4.2. Both the establishment by an official of an organization carrying out entrepreneurial activities and his participation in the management of such an organization personally or through a proxy is impossible without the use of his official powers. The presence of this feature is mandatory for the composition in question.

4.3. A necessary condition for the objective side of the crime is that each of the two forms of action by an official must be associated with the provision of benefits and benefits to an organization carrying out business activities or patronage in another form. If the organization has not received the specified benefits and advantages or patronage in another form, the act cannot be considered a crime. In this case, a disciplinary offense may occur.

4.4. Benefits and benefits mean benefits in taxation, rental of premises or production space, acquisition of property, raw materials or other items or goods for business activities, etc. Benefits can be expressed in assistance in the sale of finished products or in the provision of services, obtaining contracts, orders, etc.

4.5. Patronage in another form should be understood as such actions of the perpetrator, carried out by him using his official powers, which are aimed at creating favorable conditions for the activities of a commercial organization (for example, creating various obstacles for competitors or eliminating them from the market, etc.).

4.6. According to the legislative structure, the corpus delicti is formal. The crime is completed (by composition) at the time indicated in the disposition of the comments. action articles.

5. The subjective side is characterized only by direct intent. The culprit is aware that, using his official powers, he establishes an organization engaged in business activities, or participates in its management, provides benefits and benefits to this organization, or patronizes it contrary to the prohibition established by law, and wishes to commit these actions.

5.1. Motives and goals are not indicated as mandatory signs of the subjective side. They are usually self-serving.

6. Only an official can be the subject of a criminal attack (see paragraphs 5 - 5.6 of the commentary to Article 285).

7. The acts are classified as crimes of minor gravity.

Characteristic

This act is classified as a crime of minimal gravity. Therefore, the sentence does not exceed two years of isolation from society. In addition, it must be remembered that only those officials who are legally prohibited from having their own business can be prosecuted for illegal participation in commercial activities. As a rule, civil servants can receive income from their scientific, teaching or other creative work.

Composition according to Art. 289 of the Criminal Code of the Russian Federation

Formed only if it is proven that the official organized his own business or took part in the organization’s commercial activities personally or through a proxy, contrary to the prohibition established by law. Also, the crime will occur if a civil servant, using his position, helped the enterprise to bypass taxes and created preferential conditions for conducting work and patronized it in every possible way. This is written in Art. 289 of the Criminal Code of the Russian Federation.

The composition of this act has the following structural elements:

subject - an official who is in the public service and has certain powers (judge, deputy, bailiff);
object - violation of the established ban on conducting commercial activities and participation in it by a person who holds a certain position and has a number of powers entrusted to him;
the subjective side here is characterized only by direct intent and selfish interest, because the employee wants to receive an additional source of income contrary to the law;
the objective side manifests itself in the form of certain actions of a citizen holding a public position (he organizes a business and manages it personally, or through a trusted person, or patronizes any commercial organization, despite the fact that this is prohibited).

Commentary to Art. 289 of the Criminal Code of the Russian Federation

The object of the crime is the activities of state bodies and local government bodies carried out in accordance with the law.

According to Art. 2 of the Civil Code of the Russian Federation, entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law. The legislation of the Russian Federation prohibits civil servants and persons holding public positions from engaging in entrepreneurial activities and participating in the activities of the management body of a commercial organization.

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NW RF. 1994. N 32. Art. 3301.

Thus, this prohibition is established in Art. 17 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”. In accordance with Art. 6 of the Federal Law of May 8, 1994 N 3-FZ “On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation”, Art. 11 of the Federal Constitutional Law of December 17, 1997 N 2-FKZ “On the Government of the Russian Federation”, art. 3 of the Law of the Russian Federation of June 26, 1992 N 3132-1 “On the status of judges in the Russian Federation”, Art. 4 of the Federal Law of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation” members of the Federation Council of the Russian Federation, deputies of the State Duma of the Russian Federation, members of the Government of the Russian Federation, judges, prosecutors do not have the right to engage in entrepreneurial or other paid activities, except for teaching, scientific or other creative activities, including participation in the management of an economic entity, regardless of its organizational and legal form. In accordance with Art. Art. 12, 18 of the Federal Law of October 6, 1999 N 184-FZ “On the general principles of organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation”, a deputy of the legislative body of a constituent entity of the Russian Federation cannot engage in other paid activities (except for teaching, scientific and other creative), if he exercises his powers on a professional permanent basis. The highest official of a constituent entity of the Russian Federation (the head of the highest executive body of a constituent entity of the Russian Federation) also cannot engage in other paid activities, unless otherwise provided by the legislation of the Russian Federation.

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NW RF. 1997. N 51. Art. 5712.

RG. 1992. July 29.

Gazette of the SND and the Supreme Soviet of the RSFSR. 1992. N 8. Art. 366.

NW RF. 1999. N 42. Art. 5005.

In accordance with Art. Art. 37, 40 of the Federal Law of October 6, 2003 N 131-FZ “On the general principles of organizing local self-government in the Russian Federation”, as well as Art. 14 of the Federal Law of March 2, 2007 N 25-FZ “On Municipal Service in the Russian Federation” the following persons are not entitled to engage in entrepreneurial and other paid activities: the head of the local administration; deputies, members of an elected local government body, elected officials of local government (if they exercise their powers on a permanent basis); municipal employees.

Violation of the prohibition established by the legislation of the Russian Federation entails disciplinary liability. However, if an official establishes an organization engaged in business activities, or participates in the management of such an organization and at the same time provides it with various benefits and advantages, he may be brought to criminal liability under Art. 289 of the Criminal Code of the Russian Federation.

The objective side of the crime consists in the commission of the following actions: 1) the establishment by an official of an organization engaged in business activities, contrary to the prohibition established by law, or: 2) the participation of an official in the management of such an organization personally or through a proxy, contrary to the prohibition established by law; 3) providing an established or managed organization with benefits and advantages or patronage in another form.

In the case of the establishment (creation) of an organization carrying out entrepreneurial activities, the official acts as a founder or co-founder. An organization carrying out entrepreneurial activities can be either a commercial organization that pursues making a profit as the main goal of its activities (business partnership, business society, production cooperative), or a non-profit organization that does not pursue such a goal, but has the right to carry out entrepreneurial activities insofar as it serves the purposes for which it was created.

Participation in the management of an organization means the participation of an official in making various kinds of decisions regarding the activities of the organization. Such participation may take place in the case of sole management of the organization by filling a management position or in the case of an official becoming a member of any management body of the organization. Participation in the management of an organization can also be carried out through a proxy (for example, a relative), when in fact decisions regarding the activities of the organization are made by the official.

An obligatory sign of an objective party is the provision of benefits and advantages to an established or managed organization or patronage in another form. The provision of benefits, advantages and other patronage occurs through the use by an official of his powers and can be expressed in the following: exemption of the organization from any inspection, from prosecution and the imposition of various types of sanctions, provision of customs, tax, export benefits, creation of conditions for victory organizations in a competition to obtain a government order, creating obstacles for competitors, etc.

According to the construction of the objective side, the composition of the crime in question is formal. The crime is completed from the moment the actions included in the objective side are committed.

The subjective side is characterized by guilt in the form of direct intent. The person realizes that it is illegal, contrary to the existing prohibition, to establish an organization or participate in the management of an organization, while providing it with benefits, advantages or patronage in another form, and wishes to commit such actions.

A special subject of a crime is an official in respect of whom the law has established a ban on engaging in entrepreneurial activities and participating in the management of an organization engaged in entrepreneurial activities. Thus, an official of a state or municipal institution is not the subject of this crime, since the legislation does not prohibit him from engaging in entrepreneurial activities and participating in the management of an organization (unless such an official belongs to the category of state or municipal employees). The subject of the crime is also not a deputy of the legislative body of a constituent entity of the Russian Federation who does not exercise his powers on a permanent basis. At the same time, the provision by such officials of benefits and advantages to organizations established (managed) by them or other patronage can be qualified under Art. 285 of the Criminal Code of the Russian Federation.

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Yes, Art. 7 of the Federal Law “On the Civil Service System of the Russian Federation” provides for law enforcement service (which is a type of federal public service), including in government institutions.

A comment

Participation in illegal commercial activities of government officials is punishable by law. This is stated in Art. 289 of the Criminal Code of the Russian Federation. It is impossible not to agree with her comments. Indeed, in this case, officials recruited to protect, protect and defend the interests of their state themselves become subjects of atrocities. They create their own business, participate in commercial activities personally or hire another person for this purpose, and also provide various benefits to enterprises using their powers. Therefore, if these citizens committed such a crime, they must bear responsibility for it. After all, this act is always committed by the perpetrators intentionally and violates the interests of the state.

Another comment on Art. 289 of the Criminal Code of the Russian Federation

1. From the objective side, the crime in question is characterized by two types of actions: a) the establishment of an organization engaged in entrepreneurial activities - this is the commission of such actions that result in the creation of an organization engaged in entrepreneurial activities (commercial and non-commercial) - transfer of property, intellectual property rights property (formation of authorized capital), conclusion of the constituent agreement, approval of the charter, state registration of a legal entity; b) participation in the management of such an organization personally or through a proxy - this is activity as a management body (for example, general director) or a member of the collegial management body of the organization (board of directors, board, etc.).

2. In order for these actions to be criminal, it is necessary that they be associated with the provision of benefits and advantages to the organization or with patronage in another form. Providing benefits (customs, tax, export-import, etc.) is a complete or partial release of an organization from public burdens. Providing benefits is a preferable assessment of its activities compared to other similar organizations when resolving a particular issue (when determining the results of a competition for a government contract, auction, etc.). Patronage in another form covers all other types of illegal assistance to the organization by an official (supplying confidential information, simplifying the procedure for obtaining a license, etc.), not related to the provision of benefits and advantages.

3. All of the above actions (providing benefits, advantages, patronage in another form) are carried out by an official using his official position in the broad sense of the word, i.e. not only competence, but also the authority of the position held.

4. The crime is completed at the moment of provision of benefits, advantages or protection in another form of an organization established or managed by the offender.

Similar crimes

All acts committed by officials using the powers entrusted to them must be disclosed, and the perpetrators themselves punished. After all, crimes committed by public servants are mainly related to their personal, selfish interests and obtaining an additional source of funds. Such acts may include:

illegal participation in commercial activities;
giving and receiving bribes by government officials.

Sanctions for them are provided for in Art. 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation.

Judicial practice under Article 289 of the Criminal Code of the Russian Federation

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 20, 2018 N 127-APU18-12
By the verdict of the same court dated December 26, 2008, Krasnobryzhy was convicted under Part 2 of Art. 289 of the Criminal Code of Ukraine (illegal possession of a vehicle, committed repeatedly) to 5 years 6 months of imprisonment, under Art. , part 2 art. 289 of the Criminal Code of Ukraine (attempted unlawful possession of a vehicle, committed repeatedly) to 5 years in prison, under Part 3 of Art. 357 of the Criminal Code of Ukraine (illegal acquisition by any means of a passport or other important personal document) to 3 months of arrest.

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated July 3, 2019 N 5-APU19-54

law enforcement agencies of the Republic of Tajikistan for criminal prosecution under paragraph “d”, part 4 of art. 200, paragraph 4 of Art. , part 3 art. , part 2 art. 289 of the Criminal Code of the Republic of Tajikistan. Having heard the report of judge Shmotikova S.A. about the circumstances of the case and the arguments of the appeals, explanations of Akhmedov D.M. and the speech of lawyer I.V. Zhivov, who supported the arguments set out in the complaints, the opinion of prosecutor Z.L. Abramova. about the absence of grounds to satisfy the complaints, Judicial Collegium

Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 4, 2017 N 127-APU17-3

— 07/21/2010 under Part 2 of Art. 289, part *** art. 185, part 2 art. 185, part 1 art. of the Criminal Code of Ukraine to 2 years of imprisonment, suspended, with a probationary period of 2 years, - 12/26/2011 under Part 2 of Art. 289, part 2 art. 185, part 3 art. 185, , Criminal Code of Ukraine to 5 years 6 months imprisonment,

Ruling of the Supreme Court of the Russian Federation dated September 7, 2018 N 309-KG18-13511 in case N A76-8376/2017

A similar provision stated by the company is contained in paragraph 2 of the said review, but cannot be applied to the situation under consideration, since it concerns the illegality of refusal of admission to participate in an electronic auction due to the participant’s failure to provide a separate document explaining what exactly is meant by the absence of a conflict of interest , while in the present case the participant in the application did not actually indicate information about the absence of a criminal record for crimes under Articles 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation.

Ruling of the Supreme Court of the Russian Federation dated October 20, 2021 N 306-ES21-19043 in case N A55-21340/2020

Part 1 of Article 31 of Law N 44-FZ provides for uniform requirements for procurement participants, including the absence of a procurement participant - an individual or the head of a legal entity - a procurement participant having a criminal record for crimes in the economic sphere and (or) crimes provided for in Articles 289 — 291.1 of the Criminal Code of the Russian Federation (with the exception of persons whose criminal record has been expunged or withdrawn).

Ruling of the Supreme Court of the Russian Federation dated January 29, 2019 N 309-KG18-23814 in case N A50-5418/2018

The courts proceeded from the fact that the company, as part of the second part of the application in the declaration, did not fully provide information in accordance with the requirements of the information card of auction documentation and the Law on the Contract System, namely, it did not declare information about the absence of a criminal record for criminal offenses provided for by the procurement participant Articles 289, 290, 291.1 of the Criminal Code of the Russian Federation. The information provided in the declaration with the listed requirements that the procurement participant meets allows for the possibility of its ambiguous interpretation.

Punishment

This act is considered a crime of the least gravity. The maximum sentence under this article does not exceed two years in isolation from people. In addition, Art. 289 of the Crime Code contains some other types of sanctions:

- a fine in the amount of up to 300 thousand rubles, or other income of the guilty person for a period of up to two years; — a ban on holding certain positions for a period of up to 5 years with payment of a fine in the amount of up to 80 thousand, or the earnings of the convicted person for a period of up to six months;

- work that is carried out without fail by the perpetrator, its duration should not exceed 480 hours;

- arrest - up to six months;

- forced labor - up to two years.

Judicial practice: sentences and punishment under Art. 289 of the Criminal Code of the Russian Federation

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Practice

The head of the local city administration organized his own casino under cover. He drew up all the documents in the name of his brother, however, he handled all the documentation himself, sometimes using the services of trusted persons. During the special operation, law enforcement officers found out that the official not only has his own business and manages all the affairs of the organization, but also has a share in the authorized capital. And this despite the fact that officials are prohibited from engaging in commercial activities. A criminal case was opened against the official. During the interrogation, he confessed to everything. The court sentenced him to six months of isolation from society. The former official will serve his sentence in a settlement.

As can be seen from the above example, the employee received a short sentence under Art. 289 of the Criminal Code of the Russian Federation. Practice shows that courts do not impose the maximum punishment on former officials for such acts.

Case No. 1-289/2020
SENTENCE
named after the Russian Federation
Kstovo city June 30, 2022
Nizhny Novgorod region
Kstovo City Court of the Nizhny Novgorod Region composed of: presiding judge A.M. Larkov,
under secretary S.V. Smirnov,
with the participation of the public prosecutor - senior assistant to the Kstovo city prosecutor Andropov A.Yu.,
defendant Korostelev M.S.,
defender - lawyer of the Kstovsky District Law Office, I.N. Ryabukhin, who presented certificate No. 2451 dated September 25, 2017 and warrant No. 72732,
having examined in open court in a special manner the materials of the criminal case in relation to
Korosteleva M.S., (date anonymized) year of birth, native (address anonymized), citizen of the Russian Federation, married, with two young children (born in 2007 and 2016), not liable for military service, having a secondary education, officially not working, registered and residing address: (address impersonal), convicted:
- 07/05/2017 by the magistrate of the judicial district No. 7 of the Leninsky judicial district of Nizhny Novgorod under Article 264.1 of the Criminal Code of the Russian Federation to punishment in the form of compulsory labor for a period of 160 hours with deprivation of the right to drive vehicles for 2 years 6 months.
- 03/14/2018 by the magistrate of the judicial district No. 5 of the Leninsky judicial district of Nizhny Novgorod under Article 264.1 of the Criminal Code of the Russian Federation to punishment in the form of compulsory labor for a period of 200 hours with deprivation of the right to drive vehicles for 2 years 6 months, with the application of Part 5 Art. 69 of the Criminal Code of the Russian Federation to punishment in the form of compulsory labor for a period of 300 hours with deprivation of the right to drive vehicles for 3 years. The sentence of compulsory labor has been served.
- 12/09/2019 by the Kstovo City Court of the Nizhny Novgorod Region under Article 264.1 (2 episodes), of the Criminal Code of the Russian Federation, to punishment in the form of imprisonment for a term of 1 year 2 months, with deprivation of the right to drive vehicles for 2 years 8 months, using Art. 70 of the Criminal Code of the Russian Federation according to the sentence of March 14, 2018 to punishment in the form of imprisonment for a term of 1 year 2 months, suspended with a probationary period of 1 year 6 months, with deprivation of the right to drive vehicles for 3 years, the punishment has not been served,
- accused of committing a crime under Art. 264.1 of the Criminal Code of the Russian Federation,
INSTALLED:
04/09/2020 around 15:00 30 min. M.S. Korostelev had the intent to drive while intoxicated. Realizing his criminal intent aimed at driving while intoxicated, M.S. Korostelev, who has a criminal record under Art. 264.1 of the Criminal Code of the Russian Federation: according to the verdict of the magistrate of court district No. 7 of the Leninsky judicial district of Nizhny Novgorod, Nizhny Novgorod region dated 07/05/2017, under Art. 264.1 of the Criminal Code of the Russian Federation; by the verdict of the magistrate of court district No. 5 of the Leninsky judicial district of Nizhny Novgorod, Nizhny Novgorod region dated March 14, 2018, under Art. 264.1 of the Criminal Code of the Russian Federation; according to the verdict of the Kstovo City Court of the Nizhny Novgorod Region dated December 9, 2019, under Art. 264.1, art. 264.1 of the Criminal Code of the Russian Federation, acting intentionally in violation of clause 1.3, clause 2.7 of the Traffic Rules of the Russian Federation, approved by the Decree of the Government of the Russian Federation of October 23, 1993. No. 1090 “On the Rules of the Road” (as amended by the Decree of the Government of the Russian Federation of April 20, 2015 No. 374), on the basis of which road users are required to know and comply with the requirements of the Rules related to them, the driver is prohibited from driving a vehicle while intoxicated (alcohol, narcotic or other), under the influence of medications that impair reaction and attention, in a painful or tired state that jeopardizes traffic safety, with the intent to violate traffic rules, aware of the socially dangerous nature of their actions that jeopardize traffic safety, while in state of intoxication, at the address: Nizhny Novgorod region. Kstovsky district, village B. Mokroe, 6 got behind the wheel of a Honda Civic car with a state registration plate (number impersonal), started the engine and started driving, causing an accident at the indicated place and time with a nearby Honda Shadow 750 motorcycle, after which fled the scene of the accident.
04/09/2020, around 15:00 30 min. on the 1st kilometer of the highway Kstovo - village. Vyazovka, Nizhny Novgorod region, Honda Civic car, state registration plate P222KE/152, driven by M.S. Korostelev. was detained by the traffic police inspector of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia in the Kstovsky district. Inspector of the traffic police of the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia for the Kstovsky district in connection with the presence of signs of intoxication Korostelev M.S. was suspended from driving a vehicle, about which protocol 52 VU 602642 was drawn up on 04/09/2020. Then on 04/09/2020, in the presence of two witnesses, M.S. Korostelev. showing signs of alcohol intoxication, in accordance with Art. 27.12 of the Code of the Russian Federation on Administrative Offences, an examination was carried out for alcohol intoxication using a technical measuring instrument “Alkotektor Jupiter-K”, which showed the presence of ethanol vapor in the exhaled air equal to 1.601 mg/l, about which an examination act 52 СС 244455 was drawn up state of alcoholic intoxication.
At the court hearing, the defendant Korostelev M.S. admitted this charge of committing a crime fully and voluntarily, after consultation with the defense lawyer and in his presence supported the petition submitted to the court for a verdict without a trial. The defendant testified that he was fully aware of the nature and consequences of the stated petition.
The state prosecutor and defense counsel did not object to the sentencing without a trial.
The court considers that the charge brought, with which the defendant M.S. Korostelev agreed, is justified and supported by the evidence in the case.
The correctness of the legal qualifications of M.S. Korostelev accused. criminal actions under Art. 264.1 of the Criminal Code of the Russian Federation is beyond doubt.
Based on the foregoing, the court considers that all conditions for passing a sentence without a trial, provided for in Art. 314, 315 Code of Criminal Procedure of the Russian Federation.
The court qualifies the actions of M.S. Korostelev. according to Art. 264.1 of the Criminal Code of the Russian Federation as driving a car by a person who is intoxicated and has a criminal record for committing a crime under this article.
According to the conclusion of the forensic psychiatric examination No. 1117 dated April 29, 2020 Korostelev M.S. reveals signs of a mental disorder (data anonymized)), which, however, did not deprive him at the time of the proceedings of the ability to fully understand the actual nature and social danger of his actions and manage them. During the period relating to the time of committing the act charged with him, he did not show signs of any temporary painful disorder of mental activity, but was in a state of simple alcoholic intoxication, could be fully aware of the actual nature and social danger of his actions and direct them. Currently Korostelev M.S. can also be aware of the factual nature of his actions and direct them, correctly perceive the circumstances that are important for the case and testify about them. There is no need to use compulsory medical measures (case files 102-103).
The defendant has reached the age of criminal responsibility. The mental state of health of M.S. Korostelev, taking into account the data obtained in court about his personality, behavior at the time and after the commission of the crime, during the trial, does not raise doubts in the court. The court recognizes the defendant Korostelev M.S. sane, subject to criminal liability and punishment.
As circumstances mitigating punishment, in accordance with paragraph “g” of Part 1 of Art. 61 of the Criminal Code of the Russian Federation in relation to Korostelev M.S. The court recognizes and takes into account, when imposing a sentence, the presence of dependent young children born on August 12, 2016. and born on June 29, 2007. (case sheet 97, 98)
When sentencing the defendant Korostelev M.S. the court takes into account that he fully admitted guilt in committing the crime, stated to the court about repentance, is not registered with a psychiatrist (case file 88), is under the supervision of a narcologist with a diagnosis of “mid-stage alcohol dependence syndrome” (case file 87), at the place of residence, the authorized district police officer characterizes it satisfactorily (case file 96), as well as the state of health of him and his family members.
These circumstances taken together by the court, in accordance with the requirements of Part 2 of Art. 61 of the Criminal Code of the Russian Federation, recognizes as mitigating the defendant’s punishment circumstances that he considers sufficient for the maximum sentence to the defendant M.S. Korostelev. do not prescribe.
The court does not see M.S. in relation to Korostelev. circumstances mitigating the punishment provided for in paragraph “and” part 1 of Art. 61 of the Criminal Code of the Russian Federation.
Within the meaning of the law, active assistance in the detection and investigation of a crime consists of the active actions of the perpetrator aimed at cooperation with the investigative authorities, and can be expressed in the fact that he provides the said authorities with information about the circumstances of the crime, gives truthful and complete testimony that contributes to the investigation, represents information previously unknown to the investigative authorities. Moreover, these actions must be performed voluntarily, and not under the pressure of available evidence, and are aimed at cooperation with law enforcement agencies. However, from the case materials it follows that M.S. Korostelev is guilty of committing the crime. admitted under the pressure of the available evidence, as follows from the administrative material. From the case materials it follows that the defendant Korostelev M.S. was detained by police officers, and he was subjected to a procedure to record his state of intoxication, in the presence of invited witnesses. There are no actions in the case materials that the court can assess as contributing to the detection and investigation of crimes; they have not been presented to the court.
Since the case was considered in a special manner, when sentencing M.S. Korostelev, the court The provisions of Part 5 of Art. 62 of the Criminal Code of the Russian Federation. Studying the personality of the defendant Korostelev M.S. the court found that he has a criminal record based on sentences dated 07/05/2017, 03/14/2018, 12/09/2019 for committing intentional crimes of minor gravity, on the basis of Article 18, part 4, paragraph “a” of the Criminal Code of the Russian Federation, there is no relapse in the defendant’s actions crimes.
Aggravating circumstances, in accordance with Art. 63 of the Criminal Code of the Russian Federation, not established by the court.
Exceptional circumstances related to the goals and motives of the crime committed, behavior during and after the commission of the crime and other circumstances that significantly reduce the degree of public danger of the crime and application to the defendant M.S. Korostelev. provisions of Art. 64 of the Criminal Code of the Russian Federation, the court does not find the crime committed. The court cannot recognize the circumstances in the case that mitigate the punishment as exceptional, significantly reducing the degree of public danger of the crime committed.
Since Korostelev M.S. committed a crime of minor gravity, a change to a less serious category of the crime committed in accordance with Part 6 of Art. 15 of the Criminal Code of the Russian Federation is impossible.
There are no grounds for sentencing the defendant without imposing punishment or releasing him from punishment.
When determining the type and amount of punishment for Korostelev M.S. the court is guided by the requirements of Art. Art. 6, 43, 60 of the Criminal Code of the Russian Federation, while being guided by the principle of justice, taking into account the nature and degree of public danger of the crime committed, which, in accordance with the requirements of Article 15 Part 2 of the Criminal Code of the Russian Federation, is classified as an intentional crime of minor gravity, restoration of social justice and prevention of new crimes, the identity of the defendant, property status, the impact of the imposed punishment on the correction of the defendant and on the living conditions of his family, as well as the health status of the defendant M.S. Korostelev. and members of his family.
Taking into account the specific circumstances of the crime committed and the personality of the defendant, who, having been repeatedly convicted of crimes under Art. 264.1 of the Criminal Code of the Russian Federation, again committed a similar crime, which indicates his persistent reluctance to take the path of correction, the impact of the previous punishment on him was not enough, and also indicates a high degree of disdain for the prohibitions and restrictions established for persons driving a vehicle as a source of increased danger to others, taking into account the principle of justice, the correspondence of the imposed punishment with the gravity of the crime, the court came to the conclusion that there were grounds for appointing M.S. Korostelev. there is no punishment using Article 73 of the Criminal Code of the Russian Federation. The court believes that correction of the defendant is possible only in conditions of isolation from society, and therefore imposes a sentence on the defendant in the form of actual imprisonment.
Taking into account the information about the personality of the defendant M.S. Korostelev, the purposes of sentencing, the court considers it inappropriate to impose a penalty in the form of a fine, compulsory, forced labor, and also does not find it possible to impose a sentence on M.S. Korostelev. application of the provisions of Art. 53.1 of the Criminal Code of the Russian Federation, provided as an alternative to imprisonment.
At the same time, the court considers that the amount of punishment for M.S. Korostelev must be sufficient to correct the convicted person, defines it within the sanction of Art. 264.1 of the Criminal Code of the Russian Federation.
In accordance with Part 2 of Art. 47 of the Criminal Code of the Russian Federation, the court considers it necessary to appoint M.S. Korostelev. additional punishment in the form of deprivation of the right to engage in activities related to driving vehicles. When determining the amount of additional punishment for M.S. Korostelev, the court takes into account the nature and degree of public danger of the crime, the specific circumstances of the case, and information about the identity of the perpetrator.
In accordance with Part 2 of Art. 36 of the Penal Code of the Russian Federation, when deprivation of the right to engage in certain activities is imposed as an additional punishment to imprisonment, the term of the specified punishment is calculated from the day the convicted person is released from the correctional institution.
Additional punishment for Korostelev M.S. in the form of deprivation of the right to engage in driving vehicles in accordance with Part 2 of Art. 71 of the Criminal Code of the Russian Federation to execute independently.
The court, taking into account the personality of the defendant, the circumstances of the crime, finds no grounds for maintaining the suspended sentence according to the verdict of the Kstovo City Court of the Nizhny Novgorod Region dated December 9, 2019, in accordance with Part 4 of Article 74 of the Criminal Code of the Russian Federation, the suspended sentence according to the sentence dated December 9, 2019 is subject to cancellation .
Based on Part 1 of Art. 70 of the Criminal Code of the Russian Federation, to the punishment imposed under this verdict, the court considers it necessary to impose a final punishment for the totality of sentences, by partial addition with the punishment under the sentence of December 09, 2019.
Taking into account the personality of the defendant, the circumstances of the crime committed, the court does not see any grounds for imposing a final punishment by completely adding up the sentences.
In accordance with paragraph “a” of Part 1 of Art. 58 of the Criminal Code of the Russian Federation, taking into account the nature of the crime committed, the factual circumstances of the case and data on the personality of M.S. Korostelev (propensity for alcohol abuse, is registered with a narcologist with a diagnosis of alcohol dependence syndrome, committed a crime in conditions of an outstanding criminal record, not forming a relapse, as well as during the period of serving a suspended sentence), the serving of the sentence for the convicted person is determined in a general regime correctional colony, since the court comes to the conclusion that the convicted person Korostelev M.S. there must be more stringent control measures than are provided for in a colony-settlement.
Taking into account the personality of the defendant M.S. Korostelev, the court chooses a preventive measure in the form of detention in respect of him before the court verdict enters into legal force in execution of the sentence, since it believes that, while not in custody, the defendant can continue to engage in criminal activities, about which is evidenced by the fact of having an outstanding criminal record and a tendency to abuse alcohol, which will prevent the execution of the sentence.
Korostelev M.S. in accordance with Art. Art. 91 and 92 of the Code of Criminal Procedure of the Russian Federation was not delayed.
The fate of the material evidence is resolved by the court in accordance with Part 3 of Art. 81 Code of Criminal Procedure of the Russian Federation.
The court considers it necessary to keep a receipt with the device readings in the case materials.
Based on the above and guided by Articles 296-304, 308-310, 314, 316-317 of the Code of Criminal Procedure of the Russian Federation, the court
SENTENCED:
Korosteleva M.S. found guilty of committing a crime under Art. 264.1 of the Criminal Code of the Russian Federation, sentence him to imprisonment for a period of 01 year 02 months with deprivation of the right to engage in driving vehicles for a period of 02 years 08 months.
In accordance with Part 4 of Art. 74 of the Criminal Code of the Russian Federation to cancel the suspended sentence imposed by the verdict of the Kstovo City Court of the Nizhny Novgorod Region dated December 9, 2019 and on the basis of Art. 70 of the Criminal Code of the Russian Federation for the totality of sentences by partially adding to the punishment imposed under this sentence the unserved sentence under the sentence of the Kstovo City Court of the Nizhny Novgorod Region dated 12/09/2019 under Art. 264.1 of the Criminal Code of the Russian Federation (2 episodes), appoint M.S. Korostelev. final punishment in the form of imprisonment for a term of 01 year 10 months with deprivation of the right to engage in driving activities for a period of 3 years, with the sentence being served in the form of imprisonment in a general regime correctional colony.
A measure of procedural coercion in the form of an obligation to appear in relation to Korostelev M.S. change to detention, Korosteleva M.S. take into custody in the courtroom.
The term of punishment shall be calculated from (date impersonal), that is, from the date of the present verdict.
Credited in accordance with clause “b”, part 3.1. Art. 72 of the Criminal Code of the Russian Federation, the time of detention in the period from (date anonymized) to the day the sentence enters into legal force, during the period of imprisonment at the rate of one and a half days of detention to one day of serving the sentence in a general regime correctional colony.
Additional punishment in the form of deprivation of the right to engage in driving activities independently.
The term of serving the additional sentence for Korostelev M.S. in the form of deprivation of the right to engage in the activity of driving vehicles, calculated from the day the convict is released from the correctional institution.
Physical evidence: check No. 00711 dated 04/09/2020, stored in the criminal case materials - keep there for the entire storage period of the latter.
The verdict can be appealed on appeal to the Nizhny Novgorod Regional Court through the Kstovo City Court of the Nizhny Novgorod Region within ten days from the date of proclamation, with the exception of the grounds that the court’s conclusions set out in the verdict do not correspond to the actual circumstances of the criminal case established by the court of first instance, within the limits of Art. . 317 Code of Criminal Procedure of the Russian Federation.
If an appeal is filed, the convicted person has the right to petition for his participation in the court of appeal; has the right to invite a defense attorney to participate in the consideration of a criminal case by an appellate court; has the right to petition the court to appoint a defense lawyer, including free of charge, in cases provided for by the Code of Criminal Procedure of the Russian Federation; has the right to refuse counsel.
Within 3 days from the date of proclamation of the verdict, the parties have the right to request familiarization with the protocol and audio recording of the court session.
Within 3 days from the date of familiarization with the protocol and audio recording of the court session, the parties may submit comments on them.
Judge A.M. Larkov

Appeal

Civil servants do not always admit their guilt in committing crimes. Most of them are appealing the sentences under Art. 289 of the Criminal Code of the Russian Federation. After all, not all former officials were ready to lose their position, power and a good source of income. Especially if many of them held serious government positions.

As a rule, appealing such verdicts does not take much time, but almost always procedural acts remain unsatisfied. This is due to the fact that judges are not ready to make a new decision in relation to a person whose guilt has already been proven by a lower court.