Article 203 of the Criminal Code of the Russian Federation, abuse of power and its excess by security guards, corpus delicti

ST 203 of the Criminal Code of the Russian Federation.

1. Commitment by a private detective or an employee of a private security organization who has a private security guard certificate of actions that go beyond the powers established by the legislation of the Russian Federation regulating the implementation of private security and detective activities, and which entailed a significant violation of the rights and legitimate interests of citizens and (or) organizations or legally protected interests of society or the state - is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by restriction of freedom for a term of up to two years, or by forced 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 imprisonment 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 two years.

2. The same act, committed with the use of violence or the threat of its use, or with the use of weapons or special means and entailing grave consequences, is punishable by imprisonment for a term of up to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Arbitrage practice

Cases like this are rarely heard in court.
However, there are enough examples in judicial practice. Thus, the Shchelkovsky District Court of Moscow found a private security company employee guilty of the following actions:

violation of instructions;
carrying out actions that go beyond the scope of competence;
beating a citizen who entered the territory of a protected facility and attempted to commit theft.

For the actions committed, the guard received a cumulative punishment in the form of a fine.

Each committed act may be considered by the court as a separate offense. Therefore, the presiding officer has the right to assign sanctions in aggregate.

However, in the presence of mitigating circumstances and reconciliation of the parties, the offender has the right to avoid criminal liability.

Traditional Practice Review

The conclusions made by the court in bankruptcy disputes are set out in paragraphs 20-23 of the Supreme Court review No. 2-2021. The point is that:

State unitary enterprises that have fallen into bankruptcy cannot transfer the rights to lease public land plots to third parties. Details - here;
The refusal of the initiator of challenging the debtor's transaction from the requirements is considered by the court according to the rules of Chapter. 28.2 Arbitration Procedure Code of the Russian Federation. Details - here;
after choosing the method of disposing of the claim against the persons involved in the “subsidiary” (if it was debt collection or sale at auction), the creditor can change this method. However, it is necessary to compensate losses to those who incurred the costs of debt collection and organizing auctions. Details - here;
when the issue of the limitation period is not resolved by an international treaty applicable to relations under a foreign trade contract, the applicable law is established based on the agreement of the parties (definition No. 308-ES20-18927).

In paragraph 24 of the review, the Supreme Court provides a position related to the exclusion of a company from the Unified State Register of Legal Entities under administrative procedure. It is indicated that a decision on the upcoming exclusion from the register can be made only upon the actual termination of the activities of a legal entity (Definition No. 305-ES20-16189).

The position related to the application of competition law is given in paragraph 32 of the review.

The conclusions made in tax disputes are set out in paragraphs 33-36 of the review.

what the law says about abuse of power

The use by the person specified in the previous paragraph of his powers contrary to the interests (necessarily legitimate interests) of this organization in order to obtain benefits for himself and other persons or cause harm to other persons, if these actions or inactions lead to causing significant harm to the rights and legitimate interests of citizens, organizations, society or state is punishable by:

from a fine to imprisonment for a maximum term of 4 years;
if the abuse resulted in grave consequences, the maximum term of imprisonment may be ten years.

The main object of this crime is the normal activities of commercial or other organizations and their legitimate interests.

An additional object of the crime is the rights and legitimate interests of citizens, organizations, society or the state.

Typical examples of abuse of power.

1. One of the typical examples of abuse of power is the situation when the general director of a company creates an organization (often with a similar name) with his participation, to which he transfers part or all of the orders and clients from the company in which he was or continues to be the general director. At the same time, an unscrupulous general director often does not stop there: lease agreements for offices and retail space are terminated and new ones are concluded with an organization controlled by him, employees are transferred to work in a new company. The old organization actually ceases operations or, at best, loses part of its business.

In this case, the victim can be both the organization itself, which has become the object of criminal actions, and the participants of the organization. Moreover, according to established judicial practice, the applicant in such cases can be a new general director, a member of the board of directors or a member of the company.

2. Another example may be the conclusion by the general director of a transaction on behalf of the organization on terms that are unfavorable in advance, at undervalued or inflated prices, often without agreement with the participants of the company, with counterparties who are in one way or another controlled by the criminal, as a result of which the organization receives losses, and third parties or the general director himself benefit. (see Cassation ruling of the Rostov Regional Court in case No. 22-9035 dated October 28, 2010, Cassation ruling of the Rostov Regional Court in case No. 22-6998 dated September 19, 2012)

3. The third typical example of abuse of power is the situation when the general director or head of a department signs on behalf of the organization a certificate of completion of work with a counterparty, thereby accepting the work and creating the basis for the counterparty to receive payment. At the same time, the criminal knows that the work was not performed or was performed poorly and should not be accepted. (See Cassation ruling in case No. 4994 of the Rostov Regional Court.)

Distinguishing abuse of power from theft.

Abuse of authority (Article 201 of the Criminal Code of the Russian Federation) should be distinguished from theft: Fraud (Article 159 of the Criminal Code of the Russian Federation), Fraud in the field of entrepreneurial activity (Article 159.4 of the Criminal Code of the Russian Federation), Misappropriation or embezzlement (Article 160 of the Criminal Code of the Russian Federation).

Both in case of abuse of power and in case of theft, an organization can lose its property, and therefore, in practice, problems of qualification and differentiation of these groups often arise.

The main feature that distinguishes abuse of power from various types of theft is intent. In case of abuse of power, the intent is aimed at using powers contrary to the interests of the organization for one’s own benefit or the benefit of others. In the case of theft, the intent is aimed at stealing property and obtaining it at one’s disposal or transferring it to the disposal of other persons. An example from judicial practice is the Supervisory ruling of the RF Armed Forces dated March 6, 2002. in case No. 5-D01-365.
Another sign that distinguishes abuse of power from theft using official position is the nature of the seizure of property: in case of abuse of power, the property is either not confiscated, or is confiscated, but temporarily and/or for a fee. (Resolution of the Plenum of the Armed Forces of the Russian Federation No. 19 of October 16, 2009).

Judicial practice under this article

Article 203 of the Criminal Code of the Russian Federation “On Abuse of Power” is rarely used, but it does occur.

Examples of judicial practice on it:

Citizen G. worked as the head of a private security service. After drinking, he went to work. At this time, a woman came to the office who was dissatisfied with the work of his employees. They quarreled, G. swung his hand and hit the client in the face. She fell and cut her eyebrow. She appealed to the court with a request to punish the culprit. After the investigation, G. appeared in court. He admitted that he had done wrong and apologized. He was sentenced to pay a fine and was deprived of his position.
Citizen Sh. had a private detective's license and worked with several clients. As part of his job, he needed to keep an eye on his client's wife. One day he was performing his duties, and the client’s wife was attacked. He began to defend her, used a firearm, the criminal was wounded, detained, but sued for causing harm to health. The court considered all the features of the case, took into account that Sh. had a license and the right to carry weapons, considered him not guilty of criminal liability, but ordered him to pay for the treatment of the victim.
Citizen K. worked for a private security company. His duties included protecting the deputy and ensuring his immunity. One day, he and his client attended a rally; journalists surrounded the deputy and began asking for an interview. He refused and asked K. to help him get through. He accidentally hit the journalist, he fell and broke the camera, and filed a lawsuit. The investigation considered that K. did not exceed his powers and was therefore innocent.

What decisions are made under Article 203?

More often, it results in convictions because some detectives and security guards take their duties too literally. In 2022, there were 11 cases under this article, of which 7 were in 1 part. As a result, 2 people were acquitted, 1 was deprived of liberty, 2 received suspended imprisonment, 5 received restriction of freedom, 2 received a fine. 1 person received compulsory work and another 1 was declared insane.

What are aggravating and mitigating circumstances?

Aggravating circumstances in the form of the use of violence or its threat, or the use of weapons can increase the punishment for a private security guard or detective. Mitigating circumstances are also taken into account separately, a general list of which is given in the code.

Judicial practice: Security guards exceeding official authority

Case No. 2-2582/2017

SOLUTION

In the name of the Russian Federation

Barnaul November 13, 2022

Oktyabrsky District Court of Barnaul, Altai Territory, composed of presiding judge Nazarova L.V., with secretary FULL NAME3, having considered in open court a civil case on the claim of Zlatkin Evgeniy Aronovich against LLC Private Security Company "Ts-r" for compensation for moral damage,

INSTALLED:

The plaintiff filed a claim against LLC Private Security Company "Ts-r" for compensation for moral damages, in support of the claim indicating that in order to disable the bank's SMS notification service, he came to the office of JSC "OTP Bank" at the address Barnaul, st. Sovetskaya, 7 DD.MM.YYYY, where he explained to the bank operator that he needed to disable paid SMS notifications and change the secret word. The bank employee changed the secret word, but explained that it was impossible to disable the specified service in this bank branch. The plaintiff, in the presence of a bank employee, called the bank's hotline, through which the bank operator explained how to perform this shutdown, which the plaintiff reported to the operator at the bank branch. During the process of registering this service, another bank employee approached and said that she had called security and should be expected. At about 12:50, the Ts-r security arrived, in violation of the plaintiff’s rights and the requirements of the law and on behalf of a bank employee in the presence of bank clients, pushed the plaintiff out into the street, threatening that they would use special means. Around 13: a police squad arrived, then, together with the police, the plaintiff entered the bank and clarified the reason for calling security and rude treatment of the plaintiff, to which the bank employee explained that Zlatki E.A. interfered with bank clients. The plaintiff believes that the security officers exceeded their official powers, which resulted in forced withdrawal and pushing the plaintiff out of the bank. Consequently, the security officers committed actions that could only be committed in exceptional circumstances established by the legislation of the Russian Federation. In relation to Zlatkin E.A. no protocol on the administrative offense was drawn up, which actually confirms the abuse of official powers by the security officers.

With reference to clause 1 of Article 203 of the Criminal Code of the Russian Federation, the plaintiff indicates that in accordance with Art. 7, 12 of the Federal Law “On Private Detective and Security Activities”, private security guards are prohibited from resorting to actions that infringe on the rights and freedoms of citizens, from committing actions that jeopardize the life, health, honor, dignity and property of citizens. Carrying out actions that violate guarantees of personal integrity entails liability established by law. A private security guard can only detain a person who has committed an unlawful encroachment on protected property, or who has violated internal and (or) access control regimes and must be immediately transferred to the internal affairs body.

The plaintiff, with reference to Art. 23 of the Constitution of the Russian Federation, at Art. 150.151 of the Civil Code of the Russian Federation believes that by his actions the defendant caused him moral suffering, negative emotions, depression, anxiety, worries, depression, the defendant’s illegal actions are aimed at belittling the plaintiff’s honor, sense of personal dignity, discrediting his honor and dignity in the eyes of bank clients, the behavior of employees gave rise to a feeling of legal insecurity, permissiveness, and disregard for all moral and ethical standards. Taking into account the above, the plaintiff asked to recognize the actions of the employees of Private Security Company Ts-r LLC as illegal, and to recover from him compensation for moral damage in the amount of 30,000 rubles, as well as state duty costs in the amount of 300 rubles.

The plaintiff did not appear at the court hearing and submitted a motion to postpone the case in order to obtain evidence for a period of up to DD.MM.YYYY. A representative of the defendant, Metlyukova E.V., appeared at the court hearing, who considered the next motion to postpone the case to be an abuse of rights on the part of the plaintiff, since the case had been repeatedly postponed at the request of the plaintiff, evidence in the case had not been presented, and therefore asked that the motion be denied and considered the case on the merits and dismiss the claim as unfounded, written objections are presented in the case.

According to Art. 6.1 of the Code of Civil Procedure of the Russian Federation, legal proceedings in courts and execution of court decisions are carried out within a reasonable time. Cases are heard in courts within the time limits established by this Code. When determining a reasonable period of trial, which includes the period from the date of receipt of the statement of claim or statement in the court of first instance to the day of the last court decision in the case, such circumstances as the legal and factual complexity of the case, the behavior of the participants in the civil process are taken into account.

According to Art. 167 of the Code of Civil Procedure of the Russian Federation, the court has the right to consider the case in the event of the failure of any of the persons participating in the case and notified of the time and place of the court hearing, if they do not provide information about the reasons for the failure to appear or the court recognizes the reasons for their failure to appear as disrespectful.

It was established that, at the request of the plaintiff, the case was repeatedly postponed (October 3, October 17, DD.MM.YYYY) for reasons of the need for the plaintiff to receive legal assistance, the need for the latter to provide evidence substantiating his claims. At the same time, the plaintiff was not deprived of the opportunity to obtain and collect this evidence in advance (namely from DD.MM.YYYY - from the moment of the circumstances specified in the claim), including before filing the claim in court, however, he began collecting evidence only after its filing, in in connection with which the court considers the plaintiff’s next request to postpone the court hearing to be an abuse of rights, recognizes the reason for his failure to appear in court as disrespectful and comes to the conclusion that it is possible to consider the case at this appearance, based on the evidence available in the case.

After listening to the explanations of the defendant's representative, having studied the case materials and the evidence presented in the case, the court comes to the following conclusions.

According to the claim, employees of private security company "Ts-r" DD.MM.YYYY in the branch of JSC "OTP Bank" at the address: Barnaul, at l. Sovetskaya, 7, in the presence of bank clients, exceeded their official authority, pushed the plaintiff out into the street, threatening to use special means, which belittled the honor and dignity of the plaintiff, thereby causing moral suffering to the plaintiff.

In the case, the plaintiff presented a copy of the resolution of the deputy prosecutor of the Oktyabrsky district of Barnaul dated DD.MM.YYYY, according to which this official established that DD.MM.YYYY Zlatkin E.A. was located in OTP Bank PJSC, at the address Barnaul, st. Sovetskaya, 7, where he had a conflict with a bank employee. About 12 hours 50 min. DD.MM.YYYY, following the panic button, the “Ts-r” security arrived at the specified bank and took E.A. Zlatkin out, while no physical force was used against the latter. Bank employee Nikolenko I.N. explained to the prosecutor that Zlatkin E.A. at the bank he began to behave aggressively, throwing documents on the table, did not respond to requests to calm down, and therefore the Ts-r security officers were called. Due to these circumstances, no crime or administrative offense was established in the actions of employees of the bank PJSC OTP Bank. Due to the absence of violations of the law, no grounds for taking prosecutorial response measures were established, the complaint of Zlatkin E.A. left unsatisfied.

According to Art. 151 of the Civil Code of the Russian Federation If a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for this damage. When determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the offender and other circumstances worthy of attention. The court must also take into account the degree of physical and moral suffering associated with the individual characteristics of the citizen who suffered harm.

According to the explanations of paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 N 10 (as amended on February 6, 2007) “Some issues of application of legislation on compensation for moral harm” Moral harm is understood as moral or physical suffering caused by actions (inaction) that violate on intangible benefits belonging to a citizen from birth or by force of law (life, health, personal dignity, business reputation, privacy, personal and family <data taken>, etc.), or violating his personal non-property rights (the right to use of one’s name, right of authorship and other non-property rights in accordance with laws on the protection of rights to the results of intellectual activity) or violating the property rights of a citizen.

Moral harm, in particular, may consist of moral feelings in connection with the loss of relatives, the inability to continue an active social life, loss of a job, disclosure of family or medical information <data taken>, dissemination of untrue information discrediting the honor, dignity or business reputation of a citizen , temporary restriction or deprivation of any rights, physical pain associated with injury caused, other damage to health or in connection with a disease suffered as a result of moral suffering, etc. Article 151 of the first part of the Civil Code of the Russian Federation, which came into force on 1 January 1995, this provision was retained only for cases of causing moral harm to a citizen by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to the citizen. In other cases, compensation for moral damage may take place if there is an indication of this in the law.

According to Art. 16 of the Law of the Russian Federation dated March 11, 1992 N 2487-1 (as amended on July 3, 2016) “On private detective and security activities in the Russian Federation” in the course of private security activities, it is permitted to use physical force, special means and firearms only in cases and in the manner provided for by this Law.

According to Art. 16.1 of this Law of the Russian Federation Private security guards have the right to use physical force in cases where this Law allows them to use special means or firearms.

According to Art. 17 of the Law of the Russian Federation Private security guards have the right to use special means in the following cases: 1) to repel an attack that directly threatens their life and health, and security guards also to repel an attack that directly threatens the life and health of protected citizens; 2) to suppress a crime against the property they protect, when the offender offers physical resistance.

The defendant, in written objections to the claim, indicated that in accordance with the co-execution agreement for the provision of security services dated February 1, 2022, Private Security Company "Ts-r" LLC assumed obligations to protect the property of OTP Bank JSC, in particular by responding to SBI crews "Alarm" signal. On April 1, 2022, a visit was actually made to the bank office at the address Barnaul, at l. Sovetskaya, 7. After the police arrived, employees of the bank OTP Bank JSC did not involve E.A. Zlatkin. to administrative liability. No illegal actions against E.A. Zlatkin. the rapid response team of Private Security Company "Ts-r" LLC did not commit.

According to Art. 56 of the Code of Civil Procedure of the Russian Federation Each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.

In violation of this norm, the plaintiff did not provide evidence of moral damage, as well as the guilt of the employees of Cerberus Private Security Company LLC in causing it. The case materials do not provide evidence of the guilt of the employees of Private Security Company Ts-r LLC in committing any crime against the plaintiff, including under Art. 203 of the Criminal Code of the Russian Federation, the presence of a corresponding verdict, no evidence was presented of violation by Private Security Company "Ts-r" LLC of any provision of the law, in connection with which the plaintiff could have suffered moral suffering, as well as evidence of the illegality of the actions of the security company employees when carrying out an alarm call bank button. The plaintiff's allegations about the use of physical force against him by security company employees, including without legal grounds, are also not supported by any evidence.

Under such circumstances, the claims cannot be considered justified, and therefore the claim should be rejected in full.

Based on Art. 98 of the Code of Civil Procedure of the Russian Federation, in connection with the refusal of the claim, the plaintiff’s request for reimbursement of legal expenses for state fees should also be denied.

Based on the above, guided by Art. Art. 194-199 Civil Procedure Code of the Russian Federation, court

DECIDED :

The claims of Evgeniy Aronovich Zlatkin against Private Security Company “Ts-r” LLC for compensation for moral damage shall be left unsatisfied.

The decision can be appealed to the Altai Regional Court by filing an appeal with the Oktyabrsky District Court of Barnaul within a month from the date of its adoption in final form.

Presiding L.V. Nazarova

rospravosudie.com

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Art. 203 of the Criminal Code of the Russian Federation

Article 203 of the Criminal Code of the Russian Federation regulates relations in the event that the powers of a detective or security guard have been exceeded. The legislator says that criminal liability occurs if the actions of the above persons violate the rights and legitimate interests of other people.

In addition to the interests of citizens, a detective or security guard who abuses his official powers infringes on rights and organizations.

For exceeding his powers by a security guard or other person, criminal liability is provided.

The sanctions imposed by the presiding officer depend on the severity of the act. The legislator provides for the following punitive measures:

fine - its size varies from one hundred to three hundred thousand rubles. As a payment, deprivation of the offender’s income for a maximum of 2 years is considered;
forced labor - the period of work is set for a maximum of 2 years. As an additional punishment, along with work, a sanction is applied in the form of a ban on holding positions established by the court and engaging in activities prohibited by the presiding judge;
deprivation of freedom for up to 7 years - this punishment is applied if security or a detective used violence against a citizen.

These sanctions are equivalent to the harm that the offender causes to society through his actions.

The court has the right to temporarily revoke a license permitting detective or security activities.

Another comment on Article 203 of the Criminal Code of the Russian Federation

1. The objective side of the crime is characterized by actions that go beyond the powers established by the legislation of the Russian Federation regulating the implementation of private security and detective activities.

Exceeding authority occurs if the person did not have the right at all or could perform these actions, but in the presence of special conditions specified in the law or by-law and absent in this situation. Thus, it is prohibited to use firearms against women, persons with obvious signs of disability and minors, when their age is obvious or known to the guard, except in cases of armed resistance, an armed or group attack that threatens the life of the guard or the protected property, as well as in cases of significant crowds of people, when unauthorized persons may suffer from the use of weapons (Article 18 of the Law of the Russian Federation of March 11, 1992 N 2487-1 “On private detective and security activities in the Russian Federation” <1>).

——————————– <1> Gazette of the SND and the Armed Forces of the Russian Federation. 1992. N 17. Art. 888.

The consequences of abuse of power are a significant violation of the rights and legitimate interests of citizens and (or) organizations or legally protected interests of society or the state (for example, these include: violation of the rights of citizens to the inviolability of their home; the secrecy of correspondence, telephone conversations, postal, telegraph and other messages; concealment from law enforcement agencies of facts of impending, ongoing or committed crimes that have become known to them).

A causal connection must be established between the act committed and the consequences that occurred.

2. The subjective side of the crime is characterized by intent; a careless form of guilt is possible in relation to grave consequences (Part 2 of Article 203).

3. Special subject of the crime - a private detective or an employee of a private security organization.

A private detective is a citizen of the Russian Federation, registered as an individual entrepreneur, who has received a license in the prescribed manner to carry out private detective (detective) activities and provides the corresponding services.

The right to acquire the legal status of a private security guard is granted to citizens who have undergone professional training and passed a qualification exam, and is confirmed by a private security guard certificate. The procedure for passing the qualification exam and issuing a private security guard certificate is established by the Government of the Russian Federation. A private security guard works under an employment contract with a private security organization, and his work activities are regulated by labor and other legislation.

4. Criminal liability for a crime increases if violence or the threat of its use was used in the process of its commission (Part 2 of Article 203). Violence is beating, causing minor and moderate harm to health (Part 1 of Article 112 of the Criminal Code), torture, physical restraint, restriction of freedom, and a threat can be expressed in the threat of murder or causing serious harm to health. The threat must be perceived by the victim as real.

5. The grave consequences of the crime in question (Part 2 of Article 203) can be, for example, the death of a person, the infliction of grievous harm to health, the infliction of moderate harm to the health of many persons. At the same time, the intentional infliction of serious harm to health or death of another person requires additional qualification for a set of crimes.

Judicial practice: Actions of a security guard that go beyond the scope of authority

Judge: Pochevalov N.V.

APPEAL DECISION

November 15, 2016

Saratov

Judicial panel for criminal cases of the Saratov Regional Court, consisting of: presiding Tsarenko P.P.,

judges of the panel Kulikova M.Yu., Tarasova I.A.,

under secretary Shamilova M.N.,

with the participation of prosecutor G.A. Yashkov,

victim FULL NAME1,

convicted Molochko A.F.,

defense lawyer – lawyer V.V. Grishin,

examined in open court a criminal case based on appeals 1ff9 and additions to them by the convicted A.F. Molochko. and lawyer V.V. Grishin, acting in his interests on the verdict of the Engelssky District Court of the Saratov Region dated August 11, 2016, by which

Molochko A.F., <date> of year of birth, native of <address>, citizen of the Russian Federation, with secondary specialized education, married, with a dependent young child, registered at the address: <address>, residing at the address: < address>, not previously convicted, convicted:

- according to Part 1 of Art. 203 of the Criminal Code of the Russian Federation to punishment in the form of a fine to the state in the amount of <data taken>;

- according to Part 2 of Art. 203 of the Criminal Code of the Russian Federation to punishment of 3 years 6 months of imprisonment with deprivation of the right to engage in security activities for a period of 3 years;

- according to Part 4 of Art. 111 of the Criminal Code of the Russian Federation to punishment of 9 years in prison.

Based on Part 3 of Art. 69 of the Criminal Code of the Russian Federation for the totality of crimes by partial addition of the imposed punishments, a final sentence was imposed in the form of imprisonment for a term of 12 years in a strict regime correctional colony with a fine to the state in the amount of <data taken>, with deprivation of the right to engage in security activities for a period of 3 of the year. The penalty in the form of a fine is carried out independently.

Having heard the report of judge Kulikov M.Yu., the speeches of the convicted Molochko A.F. and lawyer V.V. Grishin, who supported the arguments of the appeals and additions to them, the position of the victim FULL NAME1, who believed the verdict to be left unchanged, the opinion of prosecutor G.A. Yashkov, who considered the court verdict to be legal and justified, the judicial panel

installed:

Molochko A.F. found guilty of committing by an employee of a private security organization, having a private security guard certificate, actions that went beyond the powers established by the legislation of the Russian Federation regulating the implementation of private security activities, and entailed a significant violation of the rights and legitimate interests of citizens, as well as the same actions committed with the use of violence and entailing grave consequences; in addition, intentionally inflicting grievous bodily harm, dangerous to the life of a person, resulting in the death of the victim through negligence.

Crimes committed by A.F. Molochko to <address> under the circumstances detailed in the verdict.

In the appeal and additions to it, lawyer V.V. Grishin, acting in the interests of the convicted A.F. Molochko, expresses disagreement with the verdict, considers it illegal and unfounded, since the court’s conclusions do not correspond to the actual circumstances of the case and are not confirmed by the evidence examined in court hearing. He believes that the preliminary investigation authorities did not fully investigate the criminal case, and the court accepted only materials obtained by the investigation. Referring to the provisions of the Law of the Russian Federation “On Private Detective and Security Activities in the Russian Federation” dated March 11, 1992, he indicates that, as was established during the trial, Molochko A.F. did not receive a private security guard’s certificate and a personal security card, due to that his work was illegal. Believes that in this regard, Molochko A.F. is not subject to prosecution under Part 1. 1 and 2 tbsp. 203 of the Criminal Code of the Russian Federation, since there is no corpus delicti. Refuting the court's conclusions regarding the guilt of A.F. Molochko. under Part 4 of Article 111 of the Criminal Code of the Russian Federation, indicates that the conclusion of the forensic expert No. dated <date> that forms the basis of the verdict does not contain any methods and analysis, but there is only a recording of all bodily injuries of FULL NAME2, mechanism their formation by the expert is probabilistic in nature. Draws attention to the conclusion of a specialist, FULL NAME 5, provided by the defense, who came to the conclusion that the bodily injuries of FULL NAME 2, which resulted in his death, occurred from an impact when falling with acceleration on the protruding parts of a vertically located beam, and not from subsequent blows from A.F. Molochko. He believes that in the presence of such contradictions, a commission forensic medical examination should have been appointed, but the court unreasonably refused to do so. Refuting the court's conclusion that there were no actions on the part of FULL NAME2 and FULL NAME1 aimed at causing harm to A.F. Molochko. bodily injuries, refers to data during the preliminary investigation and in court the testimony of A.F. Molochko. that FULL NAME2 threatened him and tried to hit him with his head. Also, disagreeing with the conclusions of the conclusion of the forensic psychological and psychiatric examination No. dated <date>, he indicates that the preliminary investigation authorities did not raise the question of the location of A.F. Molochko. in a certain emotional state precisely on the day and hour of the crime he committed, on the basis of which he considered it necessary to order a repeat psychological examination, which the court of first instance unreasonably refused. In the presence of many mitigating and no aggravating circumstances, he considers the sentence to be excessively harsh. He asks that the verdict be overturned and that the criminal case be sent for a new trial to the same court in a different composition of the court.

In the appeal and additions to it, the convicted A.F. Molochko, expressing disagreement with the verdict, considers it illegal and unfounded, and the court’s conclusions are inconsistent with the factual circumstances of the case and not supported by evidence. Giving arguments similar to those of lawyer V.V. Grishin, he points out that there are significant contradictions between the conclusion of the forensic expert No. dated <date> and the conclusion of the specialist, FULL NAME5, that he did not have a private security guard’s ID or personal card. It draws attention to the fact that the preliminary investigation authorities and the court did not indicate or take into account that he wrote a confession. Refuting the testimony of FULL NAME1, he indicates that the latter was intoxicated, as a result of which he could not draw correct and objective conclusions. He also disagrees with the court’s conclusion that the presence of direct intent is evidenced by the method of causing bodily harm. He asks that the verdict be overturned and that the criminal case be sent for a new trial to the same court in a different composition of the court.

In objections to the appeal of the convicted person, Molochko A.F. representative of the victims FULL NAME4 and FULL NAME3 – lawyer Alkhimovich Yu.V. considers the verdict legal and justified.

In objections to the appeal of the convicted person, Molochko A.F. the victim FULL NAME1, not agreeing with the arguments of the convicted person, considers the sentence legal, reasonable and fair.

In objections to the appeal 666 complaint of lawyer V.V. Grishin. the victim, FULL NAME1, does not agree with the lawyer’s arguments, refuting them, and asks the verdict to remain unchanged.

In objections to the appeals of lawyer V.V. Grishin. and the convicted Molochko A.F. state prosecutor Suprun A.V. considers the arguments of the complaints to be unfounded. He asks that the appeals be dismissed.

The appeal presentation by the state prosecutor was withdrawn.

After checking the case materials, discussing the arguments of the appeals and additions to them, objections, the judicial panel comes to the following.

The court correctly established the factual circumstances of the case, assessing the totality of the evidence collected in the case, and came to a reasonable conclusion that the guilt of the convicted A.F. Molochko had been proven. in the commission by an employee of a private security organization who has a certificate of a private security guard, actions that go beyond the powers established by the legislation of the Russian Federation regulating the implementation of private security activities, and which entailed a significant violation of the rights and legitimate interests of citizens; an employee of a private security organization who has a certificate of a private security guard, actions that go beyond the powers established by the legislation of the Russian Federation regulating the implementation of private security activities, with the use of violence and resulting in grave consequences; intentional infliction of grievous bodily harm, dangerous to human life, resulting in the death of the victim through negligence.

The court's conclusions about the guilt of A.F. Molochko in the commission of the above crime correspond to the actual circumstances of the case and are fully confirmed by the totality of evidence verified and examined at the court hearing, namely:

- the testimony of the convicted Molochko A.F., that he worked as a security guard in a cafe and did not deny the fact that he struck the victim <date>;

- testimony of the victim, FULL NAME1, from which it follows that <date>, around night time he and his brother FULL NAME2 were in a beer bar <data taken>. They drank and were intoxicated. His brother - FULL NAME2 sang and danced in the bar. Security officer – Molochko A.F. began to push FULL NAME2 out of the premises, to which the latter began to express complaints, did not make any threats or insults. After this, Molochko A.F. struck first FULL NAME2, and then to him, from which they fell to the floor. He lost consciousness from the fall, and when he came to his senses, he saw his brother - FULL NAME2 lying without signs of life on the floor in the lobby of the bar, after which the arriving ambulance officers confirmed the death of FULL NAME2;

- testimony of witness FULL NAME6, from which it follows that from <date> to <date> she worked as an administrator of a cafe <data taken>, located at the address: <address>. Molochko A.F. worked as a security guard. That night, FULL NAME1 and FULL NAME2 were in the cafe, heavily intoxicated. FULL NAME2 fell asleep at the table, and she asked A.F. Molochko. deal with it. Subsequently, Molochko A.F. informed her that Full Name1 and Full Name2 had left. After some time, Full Name1 and Full Name2 again entered the cafe premises, waiting for a called taxi, while Full Name1 ordered beer to take with him at the bar, and Full Name2 began to dance and sing in the center of the hall. She again turned to A.F. Molochko to ask them to be escorted out of the cafe. Molochko A.F. began to push Full Name 2 out of the bar with his hands, and she saw Full Name 2 resting his forehead against A.F. Molochko’s forehead. after that she saw A.F. Molochko waving his arms. Subsequently, I saw in the hall how FULL NAME1 rose from the floor with blood on his face. FULL NAME2 was lying on the floor in an unconscious state;

- testimony of a witness FULL NAME10, from which it follows that he is the director <data taken>; from <date> to <date> in the beer bar <data taken> the protection of order was carried out by A.F. Molochko, who was officially employed in <data taken> from <date> and had the qualification of an even security guard of the 4th category, assigned by the commission of the Main Directorate of the Ministry of Internal Affairs of Russia for the Saratov Region; <date>, during the period of time <data taken> a hotel security guard called him on his cell phone <data taken> FULL NAME7 who explained that the security guard of the pub <data taken> Molochko A.F. There was a conflict with the visitors of the establishment, during which Molochko A.F. used physical force and one of the visitors is unconscious as a result. Upon arrival at the beer bar <data taken>, he saw a man lying without signs of life. I learned from the bar employees that A.F. Molochko, escorting FULL NAME1 and FULL NAME2 from the bar premises, beat the latter. Use force Molochko A.F. should not have, since there were no grounds for this;

- testimony of a witness FULL NAME8, from which it follows that he is an inspector of licensing work at the Engelskoye Municipal Administration of the Ministry of Internal Affairs of Russia, Saratov Region; <date>, from citizen A.F. Molochko to the licensing group of the MU Ministry of Internal Affairs of Russia “Engelskoe” of the Saratov region, an application to provide him with a private security guard certificate; in addition to the statement, Molochko A.F. All necessary documents were provided to the licensing group. After verification, a decision was made to extradite A.F. Molochko. private security certificates; <date> addressed to A.F. Molochko the head of the regional CRLL of the Main Directorate of the Ministry of Internal Affairs of Russia for the Saratov Region signed a certificate of a 4th category security guard, which <date> was received by the licensing group of the MU Ministry of Internal Affairs "Engelskoye" of the Saratov Region, about which a notification was sent to A.F. Molochko;

- the conclusion of a forensic medical examination of the corpse, FULL NAME2, the death of the latter was caused by blunt force <data taken>; During a forensic medical examination of the corpse, FULL NAME2, injuries of group “A” were discovered: <data taken>; injuries of group “A” were caused by at least three traumatic impacts of a blunt hard object (objects), which are regarded in the aggregate as causing serious harm to health on the basis of danger to life; injuries of group “A” are in a cause-and-effect relationship with the occurrence of death; injuries of group “A” were formed intravitally in approximately a period of time from units to tens of minutes before the moment of death; injuries of group “B”: <data withdrawn>, which were caused by at least one impact of a blunt hard object (objects), are regarded as not entailing short-term health disorders; injuries of group “B” were formed intravitally in approximately a period of time, from units to tens of minutes (but not more than 1-1.5 hours) before the moment of death; group B injuries are not causally related to death; since injuries of groups “A” and “B” were caused by the impact of blunt hard objects, the possibility of their formation cannot be ruled out as a result of blows from fists or feet while wearing shoes;

- a copy of certificate No. dated <date>, according to which Molochko A.F. Qualified as a 4th grade security guard;

-protocol of seizure of a private security guard’s ID in the name of A.F. Molochko;

- a copy of order No. dated <date>, according to which Molochko A.F. appointed to the position of security guard <data taken>;

- a certificate according to which Molochko A.F. from <date> to <date> was at the workplace while performing the duties of a private security guard;

- protocols of inspection of the scene of the incident, seized items, as well as other evidence given in the verdict and confirming the time, place, method and other circumstances of the crime A.F. Molochko. crimes.

The court had no reason to doubt the above evidence; it was obtained in accordance with the requirements of Art. 74, 86 of the Code of Criminal Procedure of the Russian Federation, correspond to the actual circumstances of the case, do not contradict each other, and therefore were correctly used by the court as the basis for the guilty verdict.

The court gave a proper assessment to all the evidence examined, including the testimony of the convicted A.F. Molochko, victim FULL NAME1, prosecution witnesses, the conclusion of the forensic medical examination, while the court’s conclusions about why it accepted some of them and rejected others are sufficient are argued in the verdict, so the complaints in this part are unfounded.

Contrary to the arguments of the convicted person, the court reasonably based the verdict on the testimony of the victim, FULL NAME1, since they are logical and consistent, consistent with other evidence in the case.

Taking into account the above, it is impossible to agree with the arguments of the appeals about the inconsistency of the court’s conclusions with the actual circumstances of the case, the incorrect classification of the offense, since they are refuted by the evidence examined by the court.

The presence of the defendant’s direct intent to inflict grievous bodily harm on the victim is evidenced by the nature and location of the bodily injuries inflicted—multiple blows to the victim’s head.

Taking into account all the examined evidence in the aggregate, the court made the correct conclusion about the existence of a cause-and-effect relationship between the actions of A.F. Molochko, who caused FULL NAME2 serious harm to health on the grounds of danger to life, and the resulting consequences in the form of the death of the victim.

The arguments of the complaints that A.F. Molochko did not have a certificate of a private security guard, as a result of which his work was illegal, are recognized by the judicial panel as unfounded. As it was established, based on the results of consideration of the application of Molochko A.F. on the provision of a certificate of a private security guard and verification of his identity <date> the head of the CRLL of the Main Directorate of the Ministry of Internal Affairs of Russia for the Saratov Region signed a certificate of a 4th category security guard in the name of Molochko A.F. in the cafe <data taken> confirmed by the head of the private limited company FULL NAME10

The argument that Molochko A.F. I did not receive a private security guard’s certificate, as a result of which his actions cannot be qualified under Part 1 and Part 2 of Art. 203 of the Criminal Code of the Russian Federation also cannot be considered ff8 justified, since the certificate is essentially a document confirming the powers of a private security guard, and the powers are vested in a person by a government body. As can be seen from the case materials, the procedure for vesting Molochko A.F. The powers of the private security guard were fully respected, as a result of which the qualification of his actions under Article 203 of the Criminal Code of the Russian Federation is correct.

Contrary to the arguments of the appeals, the conclusions set out in the verdict do not contain significant contradictions that influenced or could influence the resolution of the issue of guilt or innocence of the convicted person, the correct application of the criminal law and the determination of the penalty.

The arguments of the appeals about the non-involvement of the convicted person in causing grievous harm to health, dangerous to the life of a person, resulting in the death of FULL NAME2 through negligence, were verified at the court hearing, found an assessment in the verdict and were reasonably recognized as untenable.

Having assessed the evidence examined at the court hearing in its entirety, the court correctly came to a reasonable conclusion that the convicted person was guilty of committing crimes, and correctly qualified the actions of A.F. Molochko. under Part 1 of Article 203 of the Criminal Code of the Russian Federation, Part 2 of Art. 203 of the Criminal Code of the Russian Federation, Part 4 of Art. 111 of the Criminal Code of the Russian Federation. The judicial panel does not see any grounds for reclassifying the actions of the convicted person or acquitting him.

The panel of judges cannot agree with the arguments that it was necessary to appoint a commission forensic medical examination in the case, since, as the court of first instance correctly indicated in the verdict, the conclusion of the forensic medical examination No. dated <date> was carried out by qualified experts who have experience and work experience, is scientifically based, with methods and analysis provided, and therefore does not raise doubts in the court. The court of first instance was justifiably critical of the conclusion of the specialist FULL NAME5 presented by the defense, since, as follows from the record of the court session, this expert could not explain by what criteria and reasons he made the conclusions indicated in the conclusion. Thus, there were no grounds for ordering a commission forensic medical examination. The judicial panel also agrees with the court's conclusions, which also does not see any grounds for appointing and conducting a commission forensic medical examination.

The argument that the victim FULL NAME2 tried to hit A.F. Molochko, threatened the latter, is refuted by the testimony of the victim FULL NAME1 and witness FULL NAME6, according to which there were no aggressive actions against A.F. Molochko. there was no FULL NAME1 and FULL NAME2. To the testimony of Molochko A.F. the court was justifiably critical as a way of defense in order to evade responsibility. The judicial panel does not see any grounds for re-evaluating the evidence.

With the argument that in relation to Molochko A.F. it is necessary to order a second psychological examination, the judicial panel does not agree, since the conclusion of the forensic psychological and psychiatric examination contained in the materials of the criminal case No. dated <date> was carried out by qualified experts with experience and work experience, is scientifically substantiated, with methods and analysis.

The court rightfully treated the testimony of the interrogated, at the request of the defense, specialists FULL NAME5 and FULL NAME9 critically, setting out in detail its conclusions about this in the verdict.

The convict's argument that the preliminary investigation authorities and the court did not take into account his confession is not supported by the materials of the criminal case, since information about the confession of Molochko A.F. they do not contain.

Taking into account the above, neither during the preliminary investigation in a criminal case nor during the trial are there any procedural violations that would entail the reversal of the verdict in the case.

Verdict against Molochko A.F. complies with the requirements of Art. Art. 307-309 Code of Criminal Procedure of the Russian Federation.

As follows from the minutes of the court session, the presiding officer complied with the requirements of Art. Art. 15 and 243 of the Code of Criminal Procedure of the Russian Federation to ensure adversarial rights and equality of the parties. The minutes of the court session reflect the motions of both the prosecution and the defense.

All petitions submitted by the parties were resolved in accordance with the requirements of Articles 122 and 271 of the Code of Criminal Procedure of the Russian Federation; there were no violations of the procedure for making a decision by the court on the submitted petitions. The court took all measures provided by law for a comprehensive, complete and objective examination of the circumstances of the case.

The judicial investigation was carried out in accordance with the requirements of Art. Art. 273-291 Code of Criminal Procedure of the Russian Federation. All the evidence presented by the parties was considered by the court, decisions were made on it in the manner prescribed by law, including on the evidence referred to in the complaints by the defense lawyer and the convicted person.

There was no evidence of the investigation of inadmissible evidence, the erroneous exclusion of admissible evidence from the proceedings, or the refusal of a party to study evidence that could be significant for the outcome of the case.

There were no violations of the adversarial principle at the trial. At the court hearing, all evidence essential to the outcome of the case was examined, and there were no unfounded refusals to the convict and his defense attorney to examine evidence that could be significant to the outcome of the case.

When assigning the convicted person Molochko A.F. punishment, court, based on the provisions of Art. 60 of the Criminal Code of the Russian Federation, took into account the nature and degree of public danger of the crimes he committed, information about his personality, the presence of a number of mitigating and absence of aggravating circumstances, the impact of the imposed punishment on the correction of the convicted person. In this regard, the judicial panel recognizes the arguments of the complaints about the excessive severity of the imposed punishment as unfounded.

The court's conclusion that the correction of Molochko A.F. is possible only in conditions of isolation from society, the sentence is properly motivated and justified.

The judicial panel does not see any grounds for reducing the sentence of the convicted person, which is fair and proportionate to the crime.

The panel of judges agrees that the grounds for imposing a sentence on a convicted person using the provisions of Art. 64, part 6 art. 15 of the Criminal Code of the Russian Federation, the court of first instance did not have it.

Based on the above and guided by Art. 389.13, 389.20, 389.28 Code of Criminal Procedure of the Russian Federation, judicial board

DEFINED:

Verdict of the Engelssky District Court of the Saratov Region dated August 11, 2016 against A.F. Molochko. leave unchanged the appeals and additions to them of the convicted A.F. Molochko, and the lawyer V.V. Grishin. - without satisfaction.

Presiding

Panel judges

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