1. Interference in any form in the activities of the court in order to obstruct the administration of justice -
shall be punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to two years, or by arrest for a term of up to six months, or by imprisonment for a term of up to two years.
2. Interference in any form in the activities of a prosecutor, investigator or person conducting an inquiry, in order to impede a comprehensive, complete and objective investigation of the case -
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 compulsory labor for a term of up to four hundred eighty hours, or by arrest for a term of up to six months.
3. Acts provided for in parts one or two of this article, committed by a person using his official position, -
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 four 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 four 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.
Commentary to Art. 294 of the Criminal Code of the Russian Federation
1. The generic object of criminal law protection in the commented article, as well as in general in Chapter. 31 of the Criminal Code of the Russian Federation, are the relations that develop in the sphere of the exercise of state power, and the specific object is the relations associated with the implementation by the judiciary of the function of administering justice, as well as with the activities of specialized bodies (preliminary investigation, inquiry, prosecutor's office, bodies executing court decisions), ensuring the implementation of the goals and objectives of justice.
The direct object of the crimes provided for in the commented article is social relations that ensure the normal administration of justice by the court (Part 1), as well as the activities of persons carrying out the preliminary investigation of criminal cases and supervision of it (Part 2).
2. By virtue of Art. Art. 118, 125 - 127 of the Constitution and Art. 4 of the Federal Constitutional Law of December 31, 1996 N 1-FKZ “On the Judicial System of the Russian Federation”, judicial power is exercised through constitutional, civil, administrative and criminal proceedings, respectively, by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, federal courts of general jurisdiction (including military courts), federal arbitration courts courts, constitutional (statutory) courts and magistrates of the constituent entities of the Russian Federation.
The liability established by Part 1 of the commented article occurs for interference in the activities of any of these courts that obstructs the administration of justice. At the same time, the administration of justice should be understood as the activities of all these courts in considering civil, administrative, criminal cases, cases of economic disputes and resolving other issues within their jurisdiction (in particular, those related to checking the legality and validity of the actions and decisions of the investigator or interrogator, permission to carry out investigative and other procedural actions that limit the constitutional rights and freedoms of participants in legal proceedings, taking measures to ensure the execution of court decisions) regardless of which of the judicial authorities and in what composition (collegially or individually) they exercise these powers .
3. The acts provided for in Part 1 of the commented article can be committed both in relation to a professional judge (collegium of professional judges) and in relation to other persons participating in the administration of justice - jurors, arbitration assessors.
4. From the objective side, the crime provided for in Part 1 of the commented article is characterized as interference in any form in the activities of the court. Moreover, such interference can be expressed both in influencing the court in order to obtain from it a decision desired by the person, and in creating any obstacles to the court’s administration of justice, a quick and objective resolution of the case.
5. In accordance with Part 1 of Art. 120 of the Constitution, judges are independent and are subject only to the Constitution and federal law, and therefore any attempts in extra-procedural forms to impose on a judge, jury or arbitration assessor a position that does not correspond to the law, the circumstances of the case, or their internal convictions should be regarded as an encroachment on the independence of the judge. Influencing a judge in order to induce him to make a certain decision is carried out, as a rule, in the form of active actions: giving instructions or “strong advice”, uttering threats, blackmailing, promising any benefits, committing attacks on a judge, juror or arbitration assessor , their relatives or their property. However, the possibility of influencing a judge through inaction cannot be ruled out (for example, through a long-term failure to provide the judge with housing, failure to repair court premises, etc.).
The exercise by the parties of their procedural rights in the form of filing petitions, writing complaints, submitting to the court in writing the proposed wording of decisions, making requests for certain actions or decisions cannot be regarded as interference in the activities of the court in the administration of justice. However, in cases where requests addressed to the court are accompanied by promises to reward with money or other material benefits, they may be regarded as falling under the elements of a crime provided for in Part 1 of the commented article.
6. The creation for this purpose of interference in the objective and fair resolution of a case by the court within a reasonable time by destroying evidence or other materials of the case, failure to serve subpoenas on participants in the proceedings, failure to bring a defendant in custody to a court hearing with reference to an allegedly introduced document should also be considered as obstruction of justice. quarantine in the pre-trial detention center.
7. Interference in the activities of a court constitutes a crime under Part 1 of the commented article, both in the case when it is related to proceedings in a specific case, and when such interference is aimed at achieving a certain result in a certain category of cases or at preventing the activities of a certain judge with the aim of removing him from participation in the case or terminating his powers.
8. The crimes provided for in the commented article are considered completed after the perpetrator has performed the appropriate actions, regardless of whether they led to the results he expected. The occurrence of certain socially dangerous consequences as a result of interference in judicial activities must be taken into account when assigning punishment. In cases where the consequences were expressed in the unlawful deprivation of liberty of an innocent person, causing harm to the health or property of other persons, the act is subject to qualification according to the totality of crimes provided for in Part 1 of Art. 294 and the corresponding article of the Special Part of the Criminal Code of the Russian Federation.
9. The subject of the crimes provided for in Parts 1 and 2 of the commented article can be any sane individual who has reached the age of 16. To recognize the presence of signs of these crimes in a person’s actions, it does not matter whether this person is a participant in the proceedings, a close relative of such a participant, or a subject not participating in the proceedings in a specific case considered by the judge.
10. The subjective side of the crime in question is characterized by the presence of guilt in the form of direct intent, which includes influencing judges and other persons administering justice, or creating other obstacles to achieving the goals of justice, as well as the presence of a special purpose - obstructing the administration of justice. Taking this into account, actions that are expressed in inducing the judge to make a legal and fair decision are not subject to qualification under Part 1 of the commented article. At the same time, in the case when such actions form part of another crime (if they, for example, are related to giving a bribe or causing harm to health), they are also subject to qualification under the relevant article of the Special Part of the Criminal Code of the Russian Federation.
The motives for the offender’s intervention in the activities of the court do not affect the classification of the crime, but can be taken into account when assigning punishment.
11. The crime provided for in Part 2 of the commented article, in its main elements, coincides with the crime provided for in Part 1 of this article. The main difference between them is that Part 2 establishes a prohibition of interference in the activities not of the court, but of the prosecutor, investigator or person conducting the inquiry, in order to impede a comprehensive, complete and objective investigation of the case at the stages of initiating a criminal case and preliminary investigation. Actions expressed in exerting influence on the prosecutor, investigator or person conducting the inquiry, regardless of their activities in the investigation of criminal cases (for example, in connection with the participation of the prosecutor in judicial proceedings in a criminal or civil case or in connection with the implementation by a body authorized for the conduct of inquiry, permitting measures) are outside the scope of the crime provided for by the norm in question. Under certain conditions, such actions can be classified as crimes against the order of government or against the person.
The Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation, the actions of the accused, expressed in sending complaints against the investigator to various officials, as well as in forcing witness S. to slander the investigator for unlawful actions in order to remove him from the investigation of the criminal case, were recognized as not forming the objective side of the crime , provided for in Part 2 of Art. 294 of the Criminal Code of the Russian Federation, since the accused did not directly influence the investigator and interfere in his activities. ——————————— See: Def. dated February 14, 2006 N 56-O05-94.
12. Under the prosecutor for the purposes of Art. 234 of the Code of Criminal Procedure in accordance with paragraph 31 of Art. 5 of the Code of Criminal Procedure means the Prosecutor General of the Russian Federation and the prosecutors subordinate to him, their deputies and other officials of the prosecutor's office participating in criminal proceedings and vested with the corresponding powers by the federal law on the prosecutor's office.
13. In accordance with paragraph 41 of Art. 5 and part 2 art. 151 of the Code of Criminal Procedure, an investigator is an official of the investigative body of the Investigative Committee of the Russian Federation, the FSB of Russia, the Ministry of Internal Affairs of Russia, authorized to carry out a preliminary investigation in a criminal case. Since, by virtue of Part 2 of Art. 39 of the Code of Criminal Procedure, the head of the relevant investigative body may also have the powers of an investigator; interference in his activities related to the investigation of criminal cases should also be recognized as falling under the elements of a crime provided for in Part 2 of the commented article.
14. The Code of Criminal Procedure, unlike the Code of Criminal Procedure of the RSFSR, does not provide for such a participant in criminal proceedings as the person conducting the inquiry; the use of the corresponding term in the commented article, which was put into effect before the relevant changes were made to the domestic criminal procedural legislation, gives reason to believe that it refers to such persons participating in criminal proceedings at the pre-trial stages as the investigator, the head of the inquiry unit and the head of the inquiry body.
15. The qualifying feature of the crimes provided for in the commented article is the commission of appropriate actions using the perpetrator’s official position (Part 3). The use of official position, within the meaning of this norm, can be expressed in the use of administrative potential by heads of courts or law enforcement agencies, heads and officials of state bodies of legislative and executive power to influence a judge, prosecutor, investigator or investigator, or to create obstacles to their activities, local government bodies, officials of non-governmental organizations, on whom the satisfaction of everyday and other needs of judges, prosecutors, investigators, and interrogators depends. The range of subjects subject to liability in accordance with Part 3 of the commented article is thus not limited to persons who are in accordance with paragraph 1 of the note. to Art. 285 of the Criminal Code of the Russian Federation, subjects of crimes provided for in Ch. 30 of the Criminal Code of the Russian Federation.
The Plenum of the Supreme Court specified resolutions on cases of bribery and abuse of power
On December 24, the Plenum of the Supreme Court adopted a Resolution on amending the resolutions of the Plenum of the Supreme Court dated July 9, 2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes” and dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of power and abuse of power."
Chairman of the ICA “Paritet” Erlan Nazarov noted that the issues of combating corruption and its effectiveness continue to remain the most pressing problem of society and the state. He pointed out that the number of people convicted of crimes combined in Chapter. 30 of the Criminal Code of the Russian Federation, is characterized by a consistently high level. “The intensification of the state’s activities in this direction, in turn, requires a more thorough and balanced approach by the judiciary to the consideration and resolution of criminal cases of this category,” the lawyer considered.
Amendments to clarifications on bribery cases
Thus, paragraph 9 of the Resolution “On Judicial Practice in Cases of Bribery and Other Corruption Crimes” states that property transferred as a bribe or the subject of commercial bribery, property services provided or property rights granted must receive a monetary value based on the parties’ submissions. evidence, including, if necessary, taking into account the opinion of a specialist or expert.
Erlan Nazarov pointed out that clause 10 of the resolution is supplemented by the concept of “electronic wallet” as one of the tools for accumulating funds and carrying out payment transactions, which can be used for settlements with corrupt officials. In addition, this paragraph was supplemented with clarification regarding the determination of the moment of the end of the crime, when the valuables, by prior agreement of the participants in the corruption scheme, are placed in an appointed place to which the bribe-taker has access.
“The debatable position on when to consider receiving or giving a bribe to be considered over has remained unchanged. The specified point remained the same - acceptance of at least part of the transferred values, regardless of whether the relevant persons received a real opportunity to use or dispose of the values transferred to them at their own discretion,” the lawyer noted.
In addition, Erlan Nazarov noted that in the new edition of clause 12, which provides explanations on how the actions of a person directly aimed at transferring remuneration should be qualified if an official or responsible person refuses to accept a bribe, the reference to Art. 291.1 of the Criminal Code of the Russian Federation, which provides for liability for mediation in bribery.
He also indicated that from paragraph 13 of the document, which talks about the legal assessment of the actions of persons involved in receiving or giving a bribe, when these actions were carried out in the conditions of an operational operation, the subject composition of intermediaries was excluded. At the same time, according to the expert, paragraph 13 of the resolution remains in its previous wording a very controversial provision that the actions of participants in a corruption transaction committed in the context of an operational investigation are subject to qualification as a completed crime, even if the valuables are immediately confiscated by law enforcement officers .
“Despite the fact that receiving and giving a bribe (commercial bribery) are formal elements of a crime, judicial practice shows that for the most part the corruption acts in question are identified and suppressed exclusively in the course of operational investigative activities, when the reward (values) are transferred under control of intelligence officers. Consequently, in these conditions, the potential bribe-taker’s receipt of remuneration is purely symbolic, conditional in nature; he obviously does not have any opportunity to actually take possession of the received bribe, since such a prospect is not provided for within the framework of the operational procedure,” noted Erlan Nazarov.
According to the logic of the criminal law, he believes, such deliberate actions of an official directly aimed at committing a crime, if the crime was not completed due to circumstances beyond his control, should be assessed from the point of view of Part 3 of Art. 30 of the Criminal Code of the Russian Federation, as an attempted crime. “However, law enforcement officers, guided by the analyzed explanation of the Plenum of the Supreme Court, classify the actions of officials detained at the time of receiving a bribe or immediately after it as a complete composition, which is extremely difficult to agree with, since such a practice, in my opinion, contradicts such important principles of the Criminal Code , as the principle of legality, equality of citizens before the law and guilt,” the lawyer emphasized.
Partner of Feoktistov and Partners Law Firm, lawyer Ruslan Dolotov, considered that one of the key additions to the clarifications of the Plenum of the Supreme Court on bribery issues are clauses 13.1–13.5, dedicated to mediation. In particular, the RF Armed Forces provides in paragraph 13.2 an important, in its opinion, clarification that “mediation by otherwise facilitating the achievement or implementation of an agreement should be considered completed from the moment the intermediary performs one of the specified actions, regardless of the achievement or implementation of an agreement between the briber and the recipient of a bribe, as well as the person transferring or receiving the subject of commercial bribery.”
“Study of law enforcement practice under Art. 204.1 and Art. 291.1 of the Criminal Code has shown that courts periodically unreasonably increase the amount of charges due to incorrect interpretation of the criminal characteristics of these crimes. So, they charge the person with both acts: facilitating the achievement of an agreement between the bribe giver and the bribe recipient on receiving and giving a bribe, and facilitating the implementation of an agreement between them on receiving and giving a bribe,” Ruslan Dolotov shared his experience.
He noted that the legislator specifically emphasizes the alternative nature of these actions with the help of the conjunction “or” in Art. 204.1 and Art. 291.1 CC. In his opinion, in order to charge a person with both actions, the sentence must indicate which of them falls under the concept of “facilitating the achievement of an agreement” and which of them falls under the concept of “facilitating the implementation of an agreement.”
Ruslan Dolotov indicated that the dispositions of Art. 204.1 and Art. 291.1 of the Criminal Code are constructed in the same way as, for example, Part 1 of Art. 228 of the Criminal Code, which lists several alternative actions: storage, transportation, purchase of narcotic drugs. “If a person only stores such funds, he cannot be charged with all the actions specified in the disposition, since this leads to an unreasonable increase in the volume of charges,” he considered. The lawyer hopes that the clarifications contained in paragraph 13.2 of the resolution will solve this problem.
Paragraph 14 of the resolution is stated in a new wording, which states that taking into account the fact that the rules on liability for petty bribery and petty commercial bribery are special in relation to the provisions of Art. 290, 291, 204 of the Criminal Code, receiving or giving a bribe, as well as the subject of commercial bribery in an amount not exceeding 10 thousand rubles, should be qualified under Part 1 of Art. 291.2 of the Criminal Code or Part 1 of Art. 204.2 of the Criminal Code, regardless of what actions (legal or illegal), in what composition of participants (individually or by a group of persons), as well as in the presence of other qualifying signs of bribery and commercial bribery were committed. At the same time, the subject of petty bribery completely coincides with the subject of the crimes provided for in Art. 290 and 291 of the Criminal Code, and the subject of petty commercial bribery - with the subject of the crime provided for in Art. 204 CC.
Erlan Nazarov drew attention to the wording of paragraph 29 of the resolution regarding the assessment of voluntary reporting of bribery as a necessary condition for exemption from criminal liability under Art. 291, 291.2, 204, parts 1–4, 204.2 of the Criminal Code of the Russian Federation. “Previously, it was prescribed that a message made in connection with the fact that the giving of a bribe, mediation in bribery or commercial bribery became known to the authorities cannot be recognized as voluntary. The new edition proposes not to recognize a statement of a crime as such if it was received in connection with the detention of a person on suspicion of committing this crime,” the lawyer noted. In his opinion, this interpretation gives law enforcement officers who have received operational information and are aware of the planned corruption transaction, more opportunities to attract potential bribe-payers or intermediaries to expose corrupt officials through their participation in conducting operational investigations.
Erlan Nazarov considered it justified to remove from paragraph 32 of the resolution, which explains issues related to provocation of a bribe or commercial bribery, the provision that in cases where an official or person performing managerial functions in a commercial or other organization, as a result of provocation, agreed to accept illegal remuneration, the qualification of the offense under Art. 304 CC.
At the same time, the lawyer pointed out that there remains legal uncertainty in the assessment and delimitation of the actions of persons subject to liability under Art. 304 of the Criminal Code for provoking a bribe, as well as those committed in violation of the requirements of Art. 5 of the Law on the operational management of actions of law enforcement officers who provoked an official or a person performing managerial functions in a commercial or other organization to accept a bribe or the subject of commercial bribery.
“In both cases we are talking about provocation of a crime associated with the artificial formation of evidence of a criminal act. Meanwhile, in paragraph 34, it is proposed to distinguish the named actions of employees of operational services from the crime provided for in Art. 304 of the Criminal Code, but no recommendations are given on what legal assessment they are subject to,” emphasized Erlan Nazarov. In his opinion, this position of the Supreme Court is not consistent with elementary logic and is probably considered in the form of a certain indulgence, allowing law enforcement officers to instigate and then identify corruption crimes with impunity.
The lawyer suggested that an attempt to balance the balance of interests of law enforcement agencies and persons against whom operational intelligence measures are being carried out aimed at exposing corruption is clause 36.3 of the resolution. According to the explanations contained therein, the results of the operational investigation can be used in evidence in a criminal case of a corruption crime if they are received and transferred to the preliminary investigation body or court in accordance with the requirements of the law. At the same time, they must indicate the presence of intent to receive or give a bribe or the subject of commercial bribery, as well as to commit intermediary actions, which was formed independently of the activities of employees of bodies carrying out operational investigative activities. “In this regard, in order to evaluate the evidence obtained in the course of operational investigative activities, the court, regardless of the defendant’s admission of guilt, must check the legality and validity of each such operational investigative activity,” the document states. Erlan Nazarov believes that this can be characterized as a private explanation for a certain category of cases of the general requirements of criminal proceedings.
Amendments to clarifications on cases of abuse of power
The Resolution of the Plenum of the Supreme Court on judicial practice in cases of abuse of official powers and exceeding official powers proposes to expand the activities regulated by regulatory legal acts that a person may encroach on, and to add the activities of state companies, state and municipal unitary enterprises, joint-stock companies, a controlling stake which belong to the Russian Federation, constituent entities of the Russian Federation or municipalities.
Judicial practice: sentences and punishment under Art. 294 of the Criminal Code of the Russian Federation
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