1. Receipt by an official, a foreign official or an official of a public international organization personally or through an intermediary of a bribe in the form of money, securities, other property or in the form of illegal provision of services of a property nature, provision of other property rights (including when the bribe is at the direction of the official, it is transferred to another individual or legal entity) for performing actions (inaction) in favor of the bribe-giver or persons represented by him, if the specified actions (inaction) are within the official powers of the official or if, by virtue of his official position, he can contribute to the specified actions (inaction) , as well as for general patronage or connivance in service -
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 fifty 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 three years, or correctional labor for a period of one to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or forced labor for a period of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or imprisonment for a term of up to three years with or without a fine in the amount of ten to twenty times the amount of the bribe.
2. Receiving a bribe in a significant amount by an official, a foreign official or an official of a public international organization -
shall be punishable by a fine in the amount of two hundred thousand 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 six months 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. activities for a term of up to three years or imprisonment for a term of up to six years with or without a fine of up to thirty times the amount of the bribe and 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.
3. Receipt by an official, a foreign official or an official of a public international organization of a bribe for illegal actions (inaction) -
shall be punishable by a fine in the amount of five hundred thousand to two million rubles, or in the amount of wages or other income of the convicted person for a period of six months to two years, or in the amount of forty to seventy 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 five years or imprisonment for a term of three to eight years with or without a fine of up to forty 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, committed by a person holding a public office of the Russian Federation or a public office of a constituent entity of the Russian Federation, as well as the head of a local government body, -
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 imprisonment for a term of five to ten years with or without a fine of up to fifty 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 seven years.
5. Acts provided for in parts one, three, four of this article, if they are committed:
a) by a group of persons by prior conspiracy or an organized group;
b) with extortion of a bribe;
c) on a 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 imprisonment for a term of seven to twelve years with or without a fine of up to sixty 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 ten years.
6. Acts provided for in parts one, three, four, paragraphs “a” and “b” of part five of this article, committed on an especially large scale –
shall be punishable by a fine in the amount of three million to five million rubles, or in the amount of wages or other income of the convicted person for a period of three to five years, or in the amount of eighty to one hundred 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 fifteen years or imprisonment for a term of eight to fifteen years with or without a fine of up to seventy 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 fifteen years.
Notes. 1. In this article, Articles 291 and 291.1 of this Code, a significant amount of a bribe is recognized as an amount of money, the cost of securities, other property, services of a property nature, other property rights exceeding twenty-five thousand rubles, a large amount of a bribe - exceeding one hundred fifty thousand rubles, especially large bribes - exceeding one million rubles.
2. In this article, articles 291, 291.1 and 304 of this Code, a foreign official means any appointed or elected person holding any position in the legislative, executive, administrative or judicial body of a foreign state, and any person performing any a public function for a foreign state, including a public agency or public enterprise; An official of a public international organization means an international civil servant or any person who is authorized by such an organization to act on its behalf.
- Article 289. Illegal participation in business activities
- Article 291. Giving a bribe
Commentary to Art. 290 of the Criminal Code of the Russian Federation
The object of the crime is the activity of the public apparatus of power and administration carried out in accordance with the law.
The subject of receiving a bribe is money, securities, other property, including those withdrawn from circulation or restricted in circulation (narcotic drugs, psychotropic substances, weapons, ammunition, etc.), various services (benefits) of a property nature, subject to payment, but provided to the bribe taker free of charge or at a clearly reduced cost (providing tourist vouchers, renovating an apartment, building a summer house, understating the value of the transferred property, reducing rental payments, interest rates for using a bank loan, etc.). Intangible services that do not entail property benefits for the bribe recipient (for example, providing the opportunity to purchase a rare product or service, issuing a positive review of work) are not the subject of receiving a bribe.
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See: paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery.”
The objective side of the crime is expressed in the receipt by an official personally or through an intermediary of the subject of a bribe. Part 1 art. 290 of the Criminal Code of the Russian Federation indicates the following options for the behavior of an official for which he receives a bribe: 1) commission of actions (inactions) in favor of the bribe-giver or persons represented by him, which are included in the official powers of the official; 2) the commission of actions (inactions) in favor of the bribe-giver or persons represented by him, which are not included in the official powers of the official, but he, by virtue of his official position, can facilitate their commission by another official; 3) general patronage of the service; 4) general connivance in the service.
Actions (inactions) included in the official powers of an official should be understood as those actions that he is authorized or obliged to perform in accordance with the official powers assigned to him (clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery”). These are legal actions of a person that do not go beyond the scope of his official competence, which become criminal precisely because they are committed for a bribe.
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Bulletin of the Supreme Court of the Russian Federation. 2000. N 4. P. 7.
It should be noted that receiving remuneration for activities not related to the performance of official duties cannot be considered a bribe. In addition, the sentence must describe specific actions related to the official powers of the official.
An official can receive a bribe not only for the commission of certain actions within the scope of his official duties, but also for the behavior of other officials that is beneficial for the bribe recipient, which he can facilitate by virtue of his official position. The Plenum of the Supreme Court of the Russian Federation in paragraph 4 of Resolution No. 6 of February 10, 2000 “On judicial practice in cases of bribery and commercial bribery” explained that an official position that facilitates the commission of certain actions in favor of the bribe-giver by other officials should be , in particular, to understand the significance and authority of the position held, the subordination of other officials in relation to whom the bribe-taker is in charge.
At the same time, the use by an official of only personal connections and relationships, if they are not related to the position held, cannot be considered as use of official position.
General patronage in the service presupposes the unreasonable creation of various favorable conditions for the bribe-giver or the persons represented by him. Paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery” gives a restrictive interpretation of patronage in service and speaks of creating favorable conditions only for persons subordinate in service: their undeserved encouragement , extraordinary unjustified promotion, commission of other actions not caused by official necessity. At the same time, protection may also be provided to other persons not subordinate to the bribe-taker. Thus, an official receiving money from an entrepreneur in order to avoid liability in the future for possible violations of tax laws should be regarded as receiving a bribe for general patronage in the service. General connivance in paragraph 4 of the said Resolution of the Plenum of the Supreme Court of the Russian Federation is considered as an official’s failure to take measures for omissions or violations in the official activities of the bribe-giver or persons represented by him, or failure to respond to his unlawful actions. Here, too, it seems more correct to extend such behavior of the bribe-taker to persons who are not under his official subordination.
In paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6, attention is drawn to the fact that the time of transfer of the subject of the bribe (before or after the commission of an action (inaction) in the interests of the bribe-giver or the persons represented by him) does not affect the qualification of the act. Thus, two types of bribery can be distinguished: bribe-bribery and bribe-gratitude. In the first case, the transfer of the subject of the bribe determines the behavior of the official required by the bribe giver and is a necessary condition for him to perform certain actions (inaction). In this case, there is a preliminary agreement between the bribe giver and the bribe recipient to transfer the subject of the bribe (before or after the commission of actions (inaction)).
A thank-you bribe occurs when the subject of the bribe is transferred for an action or inaction (legal or illegal) already committed by an official in the absence of a prior agreement. At the same time, it is necessary to distinguish a bribe of gratitude from the so-called ordinary gift. Yes, Art. 575 of the Civil Code of the Russian Federation allows the giving of ordinary gifts to state (municipal) employees, the value of which does not exceed five minimum wages established by law. However, it should be taken into account that this provision of the Civil Code of the Russian Federation is not applicable to criminal law. Article 575 of the Civil Code of the Russian Federation speaks of a gift agreement, which excludes a reciprocal transfer of a thing or right or a reciprocal obligation on the part of the person accepting the gift. Thus, if the act committed by a person contains the elements of receiving a bribe (whether it is a bribe-bribery or a bribe-reward), criminal liability arises regardless of the amount of remuneration received.
The subject of a bribe can be received either by the official himself (personally or through an intermediary), or provided to the official’s relatives and friends with his consent or if he did not object to this and used his official powers in favor of the bribe giver.
The actions of an intermediary in receiving or giving a bribe should be qualified as complicity in receiving or giving a bribe, depending on whose interests (the official or the bribe-giver) the intermediary is acting in.
The elements of accepting a bribe are formal. In accordance with Part 1 of Art. 290 of the Criminal Code of the Russian Federation, from an objective point of view, a crime can be committed only by an official receiving the subject of a bribe personally or through an intermediary. If in an act aimed at obtaining a bribe, there is primarily no moment of delivery or transfer of the subject of the bribe, this means that the official has not yet begun to carry out the objective side of this crime. Consequently, such actions cannot be assessed as an attempt to take a bribe, since the attempt, as a general rule, is interrupted only in the process of executing the crime until the end of the crime. Under certain conditions, actions aimed at obtaining a bribe can be qualified as preparation for this crime, which can be interrupted before the execution of its objective side begins.
The crime is completed from the moment the official accepts at least part of the transferred values. In the case when the money that is the subject of a bribe is transferred to the account of an official, the receipt of the bribe should be considered completed from the moment it is received in the appropriate account.
If the subject of receiving a bribe is any service or benefit of a property nature, then the crime is considered completed from the moment the bribe-taker began to use such a service or benefit of a property nature, or from the moment he received the relevant documents for the service or benefit (for example, a tourist voucher, ticket for a concert, a document on forgiveness of a monetary debt, etc.). At the same time, the actions (inaction) themselves performed by a person in favor of the bribe-giver are not included in the objective side, therefore, for the recognition of this composition as completed, it does not matter whether the action (inaction) agreed upon by the parties was actually performed or not. A bribe-taker who has committed, in the interests of the bribe-giver or persons represented by him, illegal actions that constitute another crime, is subject to liability for aggregation of crimes under Part 2 of Art. 290 and the corresponding article of the Criminal Code of the Russian Federation (for example, illegal exemption from criminal liability, falsification of evidence, official forgery, etc.).
If the conditional transfer of valuables does not take place due to circumstances beyond the control of the bribe giver and bribe recipient, the act should be classified as an attempt to receive a bribe. An attempt, for example, should be considered the acceptance by an official of the subject of a bribe in the process of conducting an operational-search activity to expose it; failed extortion of a bribe (clause “c” of Part 4 of Article 290 of the Criminal Code of the Russian Federation); acceptance of imitation cash. At the same time, the mere intention expressed by a person to receive a bribe cannot be qualified as an attempt to take a bribe, if no specific actions were taken to implement it.
It should be borne in mind that the acceptance of the subject of a bribe by an intermediary for its subsequent transfer to an official does not yet form a complete corpus delicti for receiving a bribe, and in the event of the arrest of an intermediary who did not have time to transfer the bribe to an official, it is qualified as an attempt to receive a bribe under Part 3 of Art. 30 and the corresponding part of Art. 290 of the Criminal Code of the Russian Federation. Since the actions of the intermediary constitute complicity in receiving a bribe in the form of complicity, they are qualified under Part 5 of Art. 33 and the corresponding part of Art. 290 of the Criminal Code of the Russian Federation.
The subjective side of the crime is characterized by guilt in the form of direct intent. The person realizes that he is receiving illegal remuneration for performing certain actions (inactions) in favor of the bribe-giver or persons represented by him, for facilitating their commission by other persons, or for general patronage or connivance in the service, and wishes to receive this remuneration.
The intent of the bribe-taker must include the awareness that the subject of the bribe is transferred for the performance or non-performance in the interests of the giver of certain actions related to the use of his official powers. Therefore, the receipt by an official of material assets allegedly for committing an action (inaction), which he cannot carry out due to lack of official authority or the inability to use his official position, should be qualified, if there is intent to acquire these assets, as fraud under Art. 159 of the Criminal Code of the Russian Federation (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6). The owner of valuables in such cases is liable for attempted bribery (Part 3 of Article 30 and Article 291 of the Criminal Code of the Russian Federation), if the transfer of valuables was aimed at carrying out the desired action (inaction) by an official.
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Bulletin of the Supreme Court of the Russian Federation. 2000. N 4. P. 9.
In cases where a person receives money or other valuables from someone, allegedly for transfer to an official as a bribe, and, without intending to do so, appropriates them, what he has done should be qualified as fraud. The actions of the owner of valuables in such cases are subject to qualification as an attempt to give a bribe. It does not matter whether the specific official to whom the bribe was supposed to be transferred was named.
If an official, using his official position, in order to obtain material assets, misleads the transferor of such assets regarding the legality of their transfer, declaring, for example, the need to pay a fine or penalties, state duty, the act also does not constitute a bribe and is qualified as fraud committed by a person using his official position (Part 3 of Article 159 of the Criminal Code of the Russian Federation).
The motive for accepting a bribe is self-interest. Therefore, if an official accepts illegal remuneration with the aim of converting it in favor of the state (municipal) body or institution in which he works, or spending it on any public or state needs, there is no corpus delicti of this crime. Thus, the Presidium of the Supreme Court of the Russian Federation reclassified the actions of a person from Art. 290 at station 285 of the Criminal Code of the Russian Federation and indicated that within the meaning of Art. 290 of the Criminal Code of the Russian Federation, the actions of an official should be qualified as receiving a bribe if a property benefit was provided to him or his relatives, if he did not object to this. From the court’s verdict it is clear that the official used the received property not for personal purposes, but for the improvement of his office, which is covered by the disposition of Art. 285 of the Criminal Code of the Russian Federation.
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Bulletin of the Supreme Court of the Russian Federation. 2004. N 5. P. 27.
The subject of the crime is a special one - an official.
Part 2 Art. 290 of the Criminal Code of the Russian Federation contains a qualified crime - receipt by an official of a bribe for illegal actions (inaction). Illegal actions mean unlawful actions that did not arise from the official powers of an official or were committed contrary to the interests of the service, as well as actions containing signs of a crime or other offense.
Part 3 Art. 290 of the Criminal Code of the Russian Federation provides for stricter liability for an act provided for in Part 1 or Part 2 of Art. 290 of the Criminal Code of the Russian Federation, committed by a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, as well as the head of a local government body.
A particularly qualified crime (Part 4 of Article 290 of the Criminal Code of the Russian Federation) is receiving a bribe:
— paragraph “a”: by a group of persons by prior conspiracy (Part 2 of Article 35 of the Criminal Code of the Russian Federation) or by an organized group (Part 3 of Article 35 of the Criminal Code of the Russian Federation).
A group of persons by prior conspiracy will occur only if two or more officials took part in the crime, who agreed in advance to jointly commit a crime using their official position. It does not matter what amount each official received.
In accordance with Part 3 of Art. 35 of the Criminal Code of the Russian Federation, an organized group is characterized by stability, a higher degree of organization, distribution of roles, and the presence of an organizer and leader. Based on this, an organized group may include persons who are not officials who have previously united to commit one or more crimes. If there are grounds for this, they are liable in accordance with Part 4 of Art. 34 of the Criminal Code of the Russian Federation as organizers, instigators or accomplices, i.e. with reference to Art. 33 of the Criminal Code of the Russian Federation.
In both cases of group receipt of a bribe, the crime is considered completed from the moment the bribe (or part thereof) is accepted by at least one of the officials;
— point “c”: with extortion of a bribe. Extortion of a bribe is a demand by an official to give a bribe under the threat of committing actions that may cause damage to the legitimate interests of a citizen (for example, under the threat of illegal prosecution) or putting him in such conditions under which he is forced to give a bribe in order to prevent harmful consequences for his legally protected interests (for example, illegal delay by an official in the process of issuing a license). If the briber is interested in the unlawful behavior of an official, seeks to circumvent the law, the established procedure for resolving a particular issue, achieve satisfaction of his illegal interests, evade deserved responsibility, etc., extortion as a qualifying sign of receiving a bribe is absent. A threat on the part of the bribe-taker to perform legal actions against the bribe-giver, although affecting his interests, cannot be considered as extortion. Thus, it is not an extortion of a bribe if a tax official demands that he transfer money under the threat of imposing a fine on an organization that is late in paying taxes;
- paragraph “d”: in a large amount (according to the note to Article 290 of the Criminal Code of the Russian Federation, a large amount is the amount of the subject of a bribe exceeding one hundred and fifty thousand rubles).
Receiving a bribe - Article 290 part 5 of the Criminal Code of the Russian Federation
Principal lawyer V.N. Romanova, a police officer, was accused of receiving a bribe by a group of persons (Article 290, Part 5 of the Criminal Code of the Russian Federation - receiving a bribe by a group of persons by prior conspiracy). Together with his subordinates, he was detained by operational officers of the internal security department of the Ministry of Internal Affairs of the Russian Federation during the operational investigative event “Operational Experiment”.
Having been interrogated at the stage of preliminary investigation, Principal lawyer V.N. Romanova partially admitted his guilt and gave testimony incriminating other alleged accomplices in the crime. The latter, in turn, fully admitted their guilt, repented of their deeds and gave testimony that completely incriminated both themselves and their client’s lawyer V.N. Romanova
Since the investigation had in its possession the confessional statements of the accused, given by them in the presence of lawyers more than once, when lawyer V.N. Romanov developed a defense tactic that consisted of confirming exclusively previously given testimony; When the investigation revealed additional circumstances, the defense decided to refrain from giving evidence on the basis of the provisions of Art. 51 of the Constitution of the Russian Federation.
During the preliminary investigation by lawyer V.N. Romanov used photography and made copies of all materials that were presented to the defense. Initially, the investigator refused the defense lawyer’s oral request to provide such an opportunity, however, after submitting a written, reasoned request from the lawyer and after consultations with senior management, he granted his request.
After completion of investigative actions and upon fulfillment of the requirements of Art. 217 of the Code of Criminal Procedure of the Russian Federation by lawyer V.N. Romanov also made copies of all the case materials, all their contents were studied in detail, all possible procedural violations were recorded, and he also filed petitions to recognize certain actions (decisions) of the investigator as illegal and to declare one piece of evidence inadmissible. The client of lawyer V.N. Romanov, on the advice of his defense lawyer, filed a request for a preliminary hearing.
After this, the materials of the criminal case were transferred by the investigative body to the district prosecutor's office and subsequently, with the indictment approved by the prosecutor, they were sent to the district court for consideration on the merits.
During the preliminary hearing, lawyer V.N. Romanov. Several petitions were additionally filed to return the criminal case to the prosecutor on various grounds, to recognize the actions and decisions of the investigative body as illegal, and the evidence received, including the results of the operational and investigative activities carried out by the internal security department of the Ministry of Internal Affairs of the Russian Federation, unacceptable. The judge considered all the petitions, denied them, and ordered a trial in the criminal case.
During the trial of the criminal case by lawyer V.N. Romanov, taking into account the materials of the criminal case examined at the meeting and the testimony of witnesses, both given in the courtroom and read out at the request of the state prosecutor, submitted additional petitions to return the criminal case to the prosecutor and to exclude evidence in the case.
All the accused at the final stage of the trial renounced the testimony previously given during the preliminary investigation, began to deny receiving a bribe and supported the procedural position of the client’s lawyer V.N. Romanova.
Despite the defendants’ non-admission of guilt and refusal of previously given confessions, the district court sentenced all defendants, including the client of lawyer V.N. Romanov, using the provisions of Art. 64 of the Criminal Code of the Russian Federation, a punishment was imposed below the lower limit provided for by this article (sanction from 7 to 12 years), in the form of 2 years of imprisonment.
Although the sentence was extremely lenient, lawyer V.N. Romanov nevertheless appealed it. As grounds for canceling this court decision, the complaint cited all the arguments voiced during the trial, leading to the return of the criminal case to the prosecutor. In addition, the lawyer pointed out significant violations of the Code of Criminal Procedure of the Russian Federation committed by the court of first instance during the judicial consideration of the case on the merits.
According to the arguments of the appeal of lawyer V.N. Romanov, regarding the procedural violations committed by the investigative body, the court of appeal overturned the verdict; all those convicted, including the client of lawyer V.N. Romanov, were released from custody, the criminal case was returned to the prosecutor due to the presence of significant procedural violations that precluded a verdict in the case and could not be corrected by the court.
In connection with the overturning of the verdict on procedural grounds, the remaining arguments were not considered by the appellate court, the receipt of a bribe was not investigated at the hearing, however, the very fact that such an unprecedented decision was made by the appellate court indicated that the defense had chosen the right tactics.
