Article 285. Abuse of official powers

[Criminal Code] [Special Part] [Section X] [Chapter 30]
1. The use by an official of his official powers contrary to the interests of the service, if this act was committed out of selfish or other personal interest and entailed a significant violation of the rights and legitimate interests of citizens or organizations or interests of society or state protected by law, -

shall be punishable by a fine in the amount of up to eighty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by forced labor for a term of up to four years, or by arrest. for a term of four to six months, or imprisonment for a term of up to four years.

2. The same act 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 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 forced labor for a term of up to five 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 seven 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.

3. Acts provided for in parts one or two of this article, which entailed grave consequences, -

shall be punishable by imprisonment for a term of up to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Notes. 1. Officials in the articles of this chapter are persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, administrative and economic functions in state bodies, local governments, state and municipal institutions, state corporations, state companies , state and municipal unitary enterprises, joint-stock companies, a controlling stake in which belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

2. In the articles of this chapter and other articles of this Code, persons holding public positions in the Russian Federation mean persons holding positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies.

3. In the articles of this chapter and other articles of this Code, persons holding public positions in the constituent entities of the Russian Federation mean persons holding positions established by the constitutions or charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies.

4. Civil servants and municipal employees who are not classified as officials bear criminal liability under the articles of this chapter in cases specifically provided for by the relevant articles.

5. Lost power.

On the issue of criminal liability under Art. 285 of the Criminal Code of the Russian Federation

Bibliographic description:

Naumov, V.V. On the issue of criminal liability under Art. 285 of the Criminal Code of the Russian Federation / V. V. Naumov, A. V. Shchepotyev. — Text: direct // Issues of economics and management. — 2021. — No. 1 (8). — P. 17-20. — URL: https://moluch.ru/th/5/archive/51/1611/ (access date: 12/21/2021).

The increased attention of scientists and law enforcers specifically to the issue of criminal liability for abuse of official powers is due to changes taking place in the socio-economic and political spheres, and, first of all, the intensification of processes in the field of combating corruption-related crimes [1]. Closely touching st. 2851, 2852, 2853, 286 of the Criminal Code of Russia, abuse of official powers, however, has a number of specific features.

In accordance with Part 1 of Art. 285 of the Criminal Code of Russia, abuse of official powers is recognized as the use by an official of his official powers contrary to the interests of the service, if such an act was committed out of selfish or other personal interest, entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state.

The analysis of the features characterizing the objective and subjective aspects of this crime indicates that for the onset of criminal liability the following combination is required: the presence of an act, namely the use by an official of his official powers contrary to the interests of the service; the presence of selfish or other personal interest in an official in case of violation (non-fulfillment) of duties; the occurrence of harmful consequences - a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state (or grave consequences under Part 3 of Article 285 of the Criminal Code of the Russian Federation); establishing a causal connection between the act committed by the official and the harm caused.

The objective side of the crime in question is the use by an official of his official powers contrary to the interests of the service, i.e. the commission of “such acts that, although they were directly related to the exercise by the official of his rights and duties, were not caused by official necessity and were objectively contrary to the general tasks and requirements imposed on the state apparatus and the apparatus of local self-government bodies, as well as those goals and objectives for the achievement of which the official was vested with the appropriate official powers” [3, paragraph 15].

Thus, the actions of an official out of selfish or other personal interest, which are within the scope of his official powers in the absence of mandatory conditions or grounds for their commission, should be considered as abuse of official powers. We can also talk, for example, about issuing a driver’s license to a person who has not passed the appropriate exam, about hiring people who do not actually perform work duties, about releasing subordinates from their duties by managers, about patronage in the organization and conduct of gambling in the territory , which is not a place specially designated for these purposes, etc.

Speaking about the “harmfulness” of abuse of official powers, it is necessary to take into account the damage caused to the rights and legitimate interests of other persons, society and the state.

The assignment of subjective rights (responsibilities) should be understood as the ability of the subject provided for by law to perform such actions (inactions) that are feasible within the framework of delegated powers and aimed at representing the relevant interests (in particular, state or municipal authorities).

Investigating the subject of the crime provided for in Art. 285 of the Criminal Code of Russia, special attention should be paid to the content of Note 1 to this norm. It defines that an official is a person who permanently, temporarily or by special authority exercises the functions of a government representative or performs organizational, administrative and/or administrative and economic functions in state bodies, local governments, state and municipal institutions, state corporations, state companies, state and municipal unitary enterprises, joint-stock companies, a controlling stake in which belongs to the Russian Federation, its constituent entities or municipalities, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

It should be noted that the Supreme Court of the Russian Federation in the Plenum Resolution No. 19 dated October 16, 2009 “On judicial practice in cases of abuse of power and exceeding official powers” presented very detailed characteristics of an official. However, this does not apply to persons exercising official powers in joint-stock companies, the controlling stake of which belongs to the Russian Federation, its constituent entities or municipalities.

Let us recall that a joint-stock company is a business company whose authorized capital is divided into a certain number of shares. Joint stock companies are classified as commercial organizations. Their participants - shareholders - are not liable for the obligations of the company, but only bear the risk of losses associated with its activities, within the limits of the value of the shares they own. Considering the concept of a “controlling stake”, it should be noted that the authorized capital of a joint-stock company is made up of the par value of its shares, which were acquired by shareholders. Analysis of current legislation allows us to distinguish two categories of shares - ordinary and preferred. At the same time, preferred shares, unlike ordinary shares, do not always provide their owner with voting rights at meetings and general meetings of shareholders. It should be noted that the content of the concept of “controlling stake” is not defined by law. We believe that by the term “controlling stake” the legislator meant a share in the authorized capital of a joint-stock company in the amount of no less than 50% plus one voting share [6,7].

In connection with the above, we believe it is advisable to eliminate certain technical and legal inaccuracies, note 1 to Art. 285 of the Criminal Code of Russia shall be stated in the following wording: “Officials in the articles of this chapter are persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, economic functions in state bodies, local government bodies, state and municipal institutions, state corporations, state companies, state and municipal unitary enterprises, joint stock companies with a share of the Russian Federation, constituent entities of the Russian Federation or municipalities in the authorized capital in the amount of at least 50% plus one voting share, as well as in the Armed Forces of the Russian Federation and other troops and military formations of the Russian Federation."

When qualifying the offense under Part 2 of Art. 285 of the Criminal Code of Russia, it is necessary to take into account that the subjects of the specified act in Notes 2 and 3 are persons holding positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies; persons holding positions established by the constitutions or charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies; as well as heads of local government bodies. The latter include senior officials of municipalities, endowed by the charter of the municipality with their own powers to resolve issues of local importance.

In this regard, the following example is of interest.

Thus, Yu. was found guilty under Part 2 of Art. 285, part 2 art. 292 of the Criminal Code of the Russian Federation [4]. In the period from 04/23/2010 to 06/15/2015, as the head of a local government body, in the premises of the executive committee, deliberately, out of selfish and other personal interests, using his official powers, contrary to the interests of the service, gave illegal instructions to the secretaries of the executive committee, not aware of his criminal actions, produce false official documents - extracts from the household register, and enter into them deliberately false information about the ownership of several land plots by him and his wife in the village, the head of the local government of which he was.

Analysis of this court decision allows us to conclude that the court did not give a proper legal assessment of such a negative phenomenon as the involvement of an official in the commission of a criminal act. Such actions, in our opinion, are characterized by an increased degree of public danger, and the lack of their proper legal assessment significantly neutralizes the criminal legal component of ensuring anti-corruption in general. We believe that the criminal law, first of all, should contribute not only to the suppression of undesirable forms and types of behavior of citizens, but also be focused on displacing, replacing negative forms and types of behavior with socially approved and useful ones.

It should also be noted that without establishing the scope and nature of official powers (rights and responsibilities), the normative legal acts regulating them, the motive, purpose and all the factual circumstances of the crime, the qualification of the offense under Art. 285 of the Criminal Code of Russia is impossible.

It should be noted that the acts of an official related to the use of official powers, resulting in harm to interests protected by criminal law, cannot be recognized as criminal if they were committed in pursuance of an order or instruction that is obligatory for him; as well as acts committed in order to eliminate a danger that directly threatens the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means. Consequently, an official who issued a knowingly illegal order or instruction to a subordinate who did not realize the illegality of such an order or instruction and carried it out is subject to liability as a perpetrator of a crime.

Exploring the subjective side of the crime provided for in Art. 285 of the Criminal Code of Russia, as signs, in addition to intent, one should highlight selfish or other personal interest. Abuse of official powers for selfish interest includes such unlawful actions of an official that were committed to obtain property benefits without illegal gratuitous transfer of property for one’s own benefit or for the benefit of others (for example, obtaining material benefits, exemption from obligations or property costs, etc. .). Another personal interest, as the motive for the crime in question, is expressed in the desire to extract non-property benefits, due to various motives, for example, careerism, protectionism, the desire to embellish the actual state of affairs, to gain support in resolving any issue or to hide one’s incompetence.

Separately, we note that such a qualifying feature as “grave consequences” for Part 3 of Art. 285 of the Criminal Code of Russia is not defined by law. We believe that in order to correctly qualify the offense under Part 3 of Art. 285 of the Criminal Code of Russia, it is required to make additions to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19 in the form of an order to the courts, establishing criteria for assessing the grave consequences of abuse of official powers. We believe that it is justified and appropriate to qualify abuse of power on the basis of causing grave consequences, when it is established in the case that as a result of the crime such harm was caused as: a major accident, a long stop of transport or a production process, disruption of the work of enterprises and institutions, causing material damage in particular on a large scale, causing death or serious harm to health through negligence, suicide or attempted suicide of the victim, involvement by an official or employees under his official command in the commission of a crime, etc. We also believe it is necessary to extend the effect of Note 1 to Art. 290 of the Criminal Code of Russia in terms of determining the amount of especially large damage (the amount of damage exceeding one million rubles) as a component of the grave consequences of abuse of official powers. Such actions can lead to a decrease in the value of a business entity, including the formation of a negative value of the organization and the appearance of signs of bankruptcy [8].

Literature:

Krivolapov G. G., Naumov V. V. Special types of exemption from criminal liability: a textbook. Tula, 2014. 122 p.
Naumov V.V., Shchepotyev A.V. Voluntary declaration by individuals of assets and accounts (deposits) in banks as a tool for exemption from criminal liability for economic crimes // Law and Economics. 2021. No. 3. pp. 74–79.

3. Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and abuse of official powers” // Rossiyskaya Gazeta. 2009. No. 207.

Decision of the Judicial Collegium for Criminal Cases of the Supreme Court of the Republic of Tatarstan in case 22–4383/2016 [Electronic resource] // Access from the reference legal system "GAS-Justice"
Shchepotyev A.V., Naumov V.V. Exemption from criminal liability for committing crimes under Articles 198–1991 of the Criminal Code of the Russian Federation // Law and Economics. 2012. No. 3. P. 64–68.
Shchepotyev A.V., Rozhok N.V. Some aspects of stock valuation.//Solomon’s decision: financial and legal bulletin. 2005. - No. 1.- p. 30–31.
Shchepotyev A.V. Methodology for identifying and assessing “hidden” and “imaginary” assets and liabilities (used to assess the market value of an organization (business)). M.: Justinform, 2009. - 144 p. (Business Library Series).
Shchepotyev A. V. Economic and legal basis for the emergence of a negative value of property // Law and Economics. 2011. - No. 1. P. 14–17.

Key terms
(automatically generated)
: official, Criminal Code of Russia, authority, personal interest, local government, service interest, joint stock company, public interest, person, executive committee.