Court verdict under Part 2 of Art. 291 of the Criminal Code of the Russian Federation No. 1-221/2017 | Giving a bribe

Cassation appeal against the verdict under Art. 291 of the Criminal Code of the Russian Federation

To the Judicial Collegium for Criminal Cases

defense attorney (lawyer) _____________,

address: __________________________

tel.___________________________

in the interests of _____________________

APPEAL

(in accordance with Article 401.1 of the Code of Criminal Procedure of the Russian Federation)

on the verdict of the V-th city court of the Leningrad region dated 05/03/20XX

By the verdict of the Vyborg City Court of the Leningrad Region, presided over by Federal Judge R.D. dated 05/03/20XX, Zh.S.V. found guilty under Art. 30 part 3,291 part 2 of the Criminal Code of the Russian Federation, and was sentenced to imprisonment for a period of 2 (two) years.

On the basis of Article 73 of the Criminal Code of the Russian Federation, the appointed Zh.S.V. The court decided to consider the punishment suspended, with a probationary period of one year.

She was found guilty of attempting to give a bribe, i.e. deliberate actions directly aimed at giving a bribe to an official for committing a knowingly illegal inaction, while the crime was not completed due to circumstances beyond the control of this person, which was committed, as the court recognized, under the following circumstances:

On May 20, 20XX, the detective of the Department of Economic Crimes of the Department of Internal Affairs at the station. V. Shch.., acting on the basis of a resolution to inspect a consumer market facility, arrived at store No. 17, located at No. 47 on the street. L-oh in the village. V-district of the Leningrad region. During an inspection of the activities of the individual entrepreneur Zh.S.V., who carried out trade in the store, Shch. revealed a violation of the registration of the sanitary book - it lacked the seals and signatures of the entrepreneur, which falls under the signs of an administrative offense under Part 2 of Art. 14.4 Code of Administrative Offenses of the Russian Federation, i.e. sale of goods and provision of services to the population in violation of sanitary rules.

On the same day at about 12 o'clock Zh.S.V. in the specified store in order to evade responsibility for the administrative offense she committed, realizing that the detective of the OBEP LOVD at the V. Shch. station is an official, she invested money in the amount of 2000 rubles in the book “Trade Rules” belonging to Shch. Regulatory documents” and put it on the table at which Shch. was drawing up a protocol on an administrative offense, trying to bribe an official for concealing the above-mentioned administrative offense and failing to draw up a protocol on an administrative offense, i.e. for obviously illegal inaction.

His criminal intent aimed at giving a bribe to an official for committing an obviously illegal inaction, Zh.S.V. could not complete it due to circumstances beyond her control, since S.H.I.E.L.D. did not accept the money, and she was detained at the crime scene by police officers.

The defense claims that the fault of Zh.S.V. the commission of the crime accused of her was not proven by the investigation and has not been proven; the basis for the guilty verdict is based on assumptions and conjectures that have no evidentiary value.

In accordance with Article 307 of the Code of Criminal Procedure, a conviction must be based on reliable evidence, when all the arguments of the accused in the case have been verified, and existing contradictions have been clarified and assessed.

Ignoring Part 3 of Article 49 of the Constitution of the Russian Federation and paragraphs. 3 and 4 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 29, 1996 “On the Judicial Sentence,” the court interpreted all irremovable doubts about the guilt of Zh.S.V. not in favor of the accused, but in favor of the prosecution authorities - the Leningrad-Finland Transport Prosecutor's Office of St. Petersburg.

The verdict against Zh.S.V. I consider it unfair and subject to cancellation on the following grounds:

Article 291 of the Criminal Code of the Russian Federation. Giving a bribe (current version)

1. Giving a bribe to an official, a foreign official or an official of a public international organization personally or through an intermediary (including when the bribe, at the direction of the official, is transferred to another individual or legal entity) -

shall be punishable by a fine in the amount of up to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or in the amount of five to thirty times the amount of the bribe, or by correctional labor for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or forced labor for a term of up to three years, or imprisonment for a term of up to two years with or without a fine in the amount of five to ten times the amount of the bribe.

2. Giving a bribe to an official, a foreign official or an official of a public international organization personally or through an intermediary (including when the bribe, at the direction of the official, is transferred to another individual or legal entity) in a significant amount -

shall be punishable by a fine in the amount of up to one million rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or in the amount of ten to forty times the amount of the bribe, or by correctional labor for a period of one to two years with deprivation of the right to occupy certain positions. positions or engage in certain activities for a period of one to three years or without it, or imprisonment for a term of up to five years with a fine in the amount of five to fifteen times the amount of the bribe or without it.

3. Giving a bribe to an official, a foreign official or an official of a public international organization personally or through an intermediary (including when the bribe, at the direction of the official, is transferred to another individual or legal entity) for committing obviously illegal actions (inaction) -

shall be punishable by a fine in the amount of up to one million five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or in the amount of thirty to sixty times the amount of the bribe, with deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years. or without it, or imprisonment for a term of up to eight years with or without a fine of up to thirty times the amount of the bribe and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years.

4. Acts provided for in parts one to three of this article, if they are committed:

a) by a group of persons by prior conspiracy or an organized group;

b) on a large scale, -

shall be punishable by a fine in the amount of one million to three million rubles, or in the amount of wages or other income of the convicted person for a period of one to three years, or in the amount of sixty to eighty times the amount of the bribe with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years or without it, or imprisonment for a term of seven to twelve years with a fine of up to sixty times the amount of the bribe or without it and with deprivation of the right to hold certain positions or engage in certain activities for a term of up to seven years or without it.

5. Acts provided for in parts one through four of this article, committed on an especially large scale, -

shall be punishable by a fine in the amount of two million to four million rubles, or in the amount of wages or other income of the convicted person for a period of two to four years, or in the amount of seventy to ninety times the amount of the bribe, with deprivation of the right to hold certain positions or engage in certain activities for a period up to ten years or without it, or imprisonment for a term of eight to fifteen years with a fine in the amount of up to seventy times the amount of the bribe or without it and with deprivation of the right to hold certain positions or engage in certain activities for a term of up to ten years or without it.

Note. A person who gave a bribe is exempt from criminal liability if he actively contributed to the disclosure and (or) investigation of a crime and either there was extortion of a bribe from an official against him, or the person, after committing a crime, voluntarily reported to the body that has the right to initiate a criminal case , about giving a bribe.

Provocation of a bribe as a possible position of the defense in criminal cases of taking a bribe

One of the possible options for the position of the defense in cases of receiving a bribe, provided for by the provisions of Art. 290 of the Criminal Code of the Russian Federation, is for a lawyer to prove the fact of provocation of a bribe against his client by the briber.

It is necessary to cancel what in Art. 304 of the Criminal Code of the Russian Federation enshrines a rather narrow definition of the concept of “provocation of a bribe”, which is understood as “an attempt to transfer to an official, a foreign official, an official of a public international organization without his consent money, securities, other property or to provide him with services of a property nature, the provision of other property rights for the purpose of artificially creating evidence of a crime or blackmail.”

However, for a long time, Russian courts did not know how to correctly evaluate the defense’s arguments about the facts of provocation of a bribe. There are no clear criteria in the law by which it would be possible to assert beyond any reasonable doubt whether there was a fact of inciting a bribe or a fact of receiving a bribe, or whether law enforcement officers exceeded their powers when carrying out operational investigative measures in cases of corruption. and thus allowed the provocation of a bribe.

The situation changed dramatically with the adoption of Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 9, 2013 No. 24 (as amended on December 3, 2013), which clearly formulated the following recommendations for lower courts on assessing the parties’ arguments about the presence or absence of facts of provocation of a bribe (clauses 32-34 Resolutions of the Plenum):

A) criminal liability under Art. 304 of the Criminal Code of the Russian Federation occurs under the following conditions:

- an attempt to transfer money, securities, other property or provide services of a property nature was carried out by artificially creating evidence of a crime or blackmail;

- the official, knowingly for the guilty party, did not perform actions indicating his consent to accept the bribe, or refused to accept the bribe;

B) provocation of a bribe is a completed crime from the moment of transfer of property or provision of services of a property nature:

- without the knowledge of the official;

- despite his refusal to accept illegal remuneration;

C) excludes the qualification of the act under Art. 304 of the Criminal Code of the Russian Federation, the fact of a person’s consent to accept illegal remuneration as a bribe;

D) an official to whom an attempt is made to transfer illegal remuneration is not subject to criminal liability under Art. 304 of the Criminal Code of the Russian Federation in connection with the absence of a crime (clause 1, part 1, article 24 of the Criminal Procedure Code of the Russian Federation);

D) must be distinguished from the crime provided for in Art. 304 of the Criminal Code of the Russian Federation, inflammatory actions of law enforcement officers who provoked an official to accept a bribe;

Since the Supreme Court of the Russian Federation gave the above clarifications, a fairly extensive judicial practice has formed, where the courts have rather ambiguously assessed the defense’s arguments about the absence of an event or corpus delicti under the provisions of Art. 290 of the Criminal Code of the Russian Federation and the presence of facts of provocation of a bribe:

1. For example, in paragraph 3 of the Generalization of the practice of considering criminal cases of corruption for the 2nd half of 2013 and 2014 in the courts of the Yamalo-Nenets Autonomous District (approved by the presidium of the court of the Yamalo-Nenets Autonomous District on September 9, 2015) the subject’s court accepted the position of the defense and indicates that “By the verdict of the Nadym City Court, L. was found guilty under Part 1 of Art. 292 (2 crimes), part 3 of Art. 290 (2 crimes), part 3 of Art. 30 and part 3 of Art. 290 of the Criminal Code of the Russian Federation. The court found that L., holding the position of doctor at a district hospital, acting through an intermediary S., received bribes from three persons for drawing up false certificates of incapacity for work. In the latter case, he was detained by operational officers. The court of appeal overturned the verdict against L., the latter was acquitted due to the lack of corpus delicti in his actions,” since “the materials of the criminal case did not contain evidence that the convicted person would have committed the crime without the intervention of law enforcement officers and without the artificial creation of conditions for this by them . The panel of judges came to the conclusion that the actions of the police officers were aimed at inducing L. to receive illegal remuneration, that is, at provocation, which violated the requirements of Art. 5 of the Federal Law “On Operational-Investigative Activities”.

The results of the operational investigation and evidence derived from them could not be used as the basis for the verdict. Taking into account that other evidence was also declared inadmissible, the judicial panel came to the conclusion that L.’s guilt had not been proven and decided to acquit him.”

1. However, for example, already in the Resolution of the Presidium of the Tver Regional Court, the court rejects the position of the defense and says that “the arguments of the cassation appeal about obtaining the results of operational search activities in violation of the law, including in connection with the presence of the convicted V. and K. special status, as well as the provocative actions of police officers during operational search activities, received a full and correct assessment by the court of first instance and the court of appeal, with which there is no reason to disagree. In particular, the court of first instance, based on checking the results of operational investigative activities in the criminal procedure, came to the conclusion that D.’s intent to extort a bribe was formed independently of the activities of the employees of the operational units. The appellate court correctly pointed out that the Federal Law “On Operational-Investigative Activities” and other federal laws do not provide for obtaining any special permission to conduct an operational experiment in relation to a municipal deputy.”

Thus, in the practical activities of a defense lawyer in cases of bribe-taking, it often becomes necessary to base his position on the position of the client regarding the fact of provocation of a bribe by the bribe-giver or law enforcement agencies. Judicial practice on this issue is currently very ambiguous. The defense's arguments about the fact of provocation of a bribe are carefully checked by the courts, taking into account the recommendations set out in Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 9, 2013 No. 24 (as amended on December 3, 2013).

Sometimes the courts accept this position, and sometimes they claim that the defense was unable to prove the fact of provocation of a bribe, and also that no significant violations or abuses were committed during the operational investigation. Along with the arguments about the facts of provocation of a bribe, others should be used in order to strengthen the defense’s position and increase the client’s chances of an acquittal.