1. Commitment by an official of actions that clearly go beyond the scope of his powers and entail a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, -
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, if they are committed:
a) with the use of violence or the threat of its use;
b) using weapons or special means;
c) causing grave consequences, -
shall be punishable by imprisonment for a term of three 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.
- Article 285.4. Abuse of official powers in the implementation of state defense orders
- Article 286.1. Failure of an employee of an internal affairs body to comply with an order
What is meant by abuse of power?
Abuse of power refers to malfeasance. This offense means the use by a citizen of his powers established by the job description, contrary to the goals of his official activities. It is usually committed with a selfish motive in order to satisfy personal interests, which leads to a violation of the interests of individuals, firms and society.
The elements of abuse of official powers have the following characteristics:
- the employee acts contrary to the interests of the service, causing harm to the power structure;
- as a result of committing an offense, the rights and legitimate interests of both individuals and companies, government agencies and society are violated;
- the act committed is the direct cause of the negative consequences.
Abuse of official power can manifest itself in the form of a specific omission or action. For example, the use of state property for personal needs, concealment of a criminal act.
If you are accused of abuse of official status, use the help of our lawyers. We specialize in protecting clients from criminal sanctions for misdemeanors under Article 285 of the Criminal Code of the Russian Federation.
Commentary to Art. 285 of the Criminal Code of the Russian Federation
The main object of abuse of official powers is the activities of the public apparatus of power and administration carried out in accordance with the law. An additional object is the constitutional rights of man and citizen, economic and other interests of citizens, organizations and the state protected by law.
The objective side of the crime consists of three mandatory features: 1) the commission of an act (action or inaction) - the use by an official of his official powers contrary to the interests of the service; 2) the occurrence of consequences in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state; 3) cause-and-effect relationship between the act and the consequence.
The use by an official of his official powers should be understood as the commission by him illegally, contrary to the interests of the service, of actions within the scope of his official duties, or the failure to perform actions that the official was obliged to perform by virtue of his position.
This circumstance was also noted in Resolution of the Plenum of the Supreme Court of the USSR dated March 30, 1990 No. 4 “On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and forgery.” Paragraph 10 of this Resolution states that, in accordance with the law, such actions of an official that arose from his official powers and were associated with the exercise of the rights and obligations with which this person is endowed by virtue of his position can be recognized as abuse of office.
However, in cases where the actions of an official related to the violation of his official powers were committed in order to prevent harmful consequences that were more significant than the harm actually caused, when this could not be done by other means, such actions in accordance with the legislation on extreme necessity are not may be considered criminal.
The powers of an official are determined by his competence, i.e. a range of rights and obligations enshrined in the relevant legislative and other regulatory legal acts, departmental, local documents, etc. When holding a person accountable for abuse of official powers, it is necessary to establish the range and nature of the official rights and duties of the official, the regulations governing them, the motive, purpose and actual circumstances of the act committed, the existence of a causal relationship between the violation (non-fulfillment) of the official’s duties and the resulting harmful consequences. An indication of the specific act that gives the person the appropriate powers, as well as the specific rights and obligations that the person has illegally used, is mandatory.
As indicated by the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, the resolution on bringing as an accused and the indictment must contain references to legal acts by virtue of which the official is endowed with certain powers, as well as specific duties and rights, the abuse of which is contrary to the interests of service is blamed on him. Failure to comply with this requirement entails an acquittal for lack of corpus delicti.
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Ruling of the Supreme Court of the Russian Federation of July 19, 1999 // Bulletin of the Supreme Court of the Russian Federation. 2000. N 8. P. 12 - 13.
It should also be noted that if, in order to achieve a criminal result, a person does not use the official powers assigned to him, but some connections in the service, the authority of the position he holds, etc., then there is no corpus delicti of this crime.
Committing an act contrary to the interests of the service means that a person acts within the framework of the powers granted to him, but his actions contradict the goals and objectives set for the relevant body or institution. The interests of a particular body or institution lie in achieving the goals for which they were created, in the full and timely implementation of the tasks facing them, and are ensured through the activities of officials. Therefore, the violation by the latter of his official duties, if this is not caused by official necessity, should be considered as an act contrary to the interests of the service.
Abuse of official powers can be expressed in various forms and methods of committing a crime. For example, in the concealment by a tax inspector of the fact of non-payment of taxes by persons close to him; the use by an official of the labor of subordinates in his personal interests during the construction of his own house; concealment of facts of committing crimes due to poorly organized work to uncover them in order to avoid disciplinary liability; concealing the fact of a shortage of property (for example, non-residential premises) that is on the balance sheet of a certain body or institution and was lost in the process of its use (for example, burned due to non-compliance with fire safety rules); use for personal purposes of property allocated to a certain body or institution for the performance of official activities; issuing illegal orders and regulations that caused significant harm; connivance in the commission of offenses by other persons on the part of an official obliged to exercise appropriate control over their actions, etc.
In addition to the commission of an act in the form of an official using his official powers contrary to the interests of the service, a mandatory element of the objective side of the crime is a consequence in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, which is in a cause-and-effect relationship with the act. A significant violation of rights and legitimate interests is an evaluative concept, therefore, the issue of the existence of such a significant violation must be decided on the basis of the specific circumstances of the case, however, in each case, the materiality of the violation of rights and legitimate interests must be justified in the verdict. Merely indicating in a sentence that significant harm has been caused to the legally protected interests of citizens, organizations and the state is not enough; this formulation is general, and if it is not established what exactly the damage is and to whom it is caused, there is no justification for the significance of the damage caused.
Violation of the constitutional rights and freedoms of a person and a citizen, causing him physical harm in the form of beatings, torture, and minor harm to health is significant; illegal obstruction of business or other economic activity, illegal restriction of competition, resulting in large losses. A significant violation of the interests of society or the state protected by law can be expressed in undermining the authority of authorities, undermining the normal activities of a state (municipal) body, for example the prosecutor's office - for the rapid and complete disclosure of crimes, creating significant interference and disruptions in the work of state and municipal structures, concealing serious crimes and so on.
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See: Review of the supervisory practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2002 // Bulletin of the Supreme Court of the Russian Federation. 2003. N 9. P. 17.
In the Resolution of the Plenum of the Supreme Court of the USSR dated March 30, 1990 No. 4 “On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and forgery” about.
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Bulletin of the Supreme Court of the USSR. 1990. N 3.
Abuse of official powers is one of the crimes with material elements. It is considered completed from the moment the consequences occur in the form of a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. In the absence of this consequence, official misconduct occurs, entailing disciplinary liability, but not a crime.
From the subjective side, a crime is characterized by a deliberate form of guilt in the form of both direct and indirect intent. The guilty official is aware that he is using the official powers granted to him contrary to the interests of the service, foreseeing a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, desires the occurrence of these consequences (direct intent) or consciously allows the consequences or relates to their occurrence indifferent (indirect intent).
A mandatory feature of the subjective side is a motive - selfish or other personal interest. Selfish interest is expressed in the desire to obtain property benefits without illegal gratuitous seizure and circulation of someone else’s property for one’s own benefit or for the benefit of others (for example, during the construction of a house, an official illegally exploits the labor of his subordinates, thereby being freed from the costs of paying for contract work; having the authority to distribution of the state (municipal) housing stock, an official illegally establishes an extraordinary procedure for obtaining an apartment for his relative; in order to avoid financial liability, he hides the lack of material assets, etc.). If the use by an official of his official powers is a method of theft, then the elements of the analyzed crime are absent. What was done in this case should be qualified under Part 3 of Art. 159 or part 3 of Art. 160 of the Criminal Code of the Russian Federation.
Another personal interest is expressed in the desire to extract non-property benefits. Such a desire can be due to various motives: careerism, protectionism, nepotism, the desire to hide one’s incompetence, to avoid disciplinary liability for violations, mistakes in work, to receive support from influential people, revenge, envy, etc.
When considering cases of abuse of power, establishing the motive of selfish or other personal interest that guided the person in committing the crime is mandatory. The verdict must also indicate what exactly such a motive was expressed. In the case where a person uses his official powers contrary to the interests of the service, but does not seek to obtain any personal benefits as a result (his motive is, for example, the falsely understood interests of a state (municipal) body or institution), there is no corpus delicti.
The subject of the crime in question is a special one - an official.
Part 2 Art. 285 of the Criminal Code of the Russian Federation provides for a qualified offense of abuse of power, which differs from the main offense by the special status of the subject. Here, the subject is an official 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.
The definition of persons holding public positions in the Russian Federation and constituent entities of the Russian Federation, as stated above, is given in notes 2 and 3 to Art. 285 of the Criminal Code of the Russian Federation.
When considering the issue of the subject of abuse of official powers, it should be borne in mind that, within the meaning of the law, to initiate a criminal case on the grounds of crimes provided for in Part 2 of Art. 285 and part 2 of Art. 286 of the Criminal Code of the Russian Federation, the identification of a specific official holding a public position and committing abuse and excess is mandatory. Initiating a criminal case based on abuse by an indefinite number of persons is illegal.
A particularly qualified type of abuse of power (Part 3 of Article 285 of the Criminal Code of the Russian Federation) is the commission of an act provided for in Part 1 or 2 of Art. 285 of the Criminal Code of the Russian Federation, which entailed grave consequences. This sign is evaluative and is established taking into account the specific circumstances of the crime. In the previously mentioned Resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 No. 4, it is recommended to classify as grave consequences such as: violation of the constitutional rights and freedoms of a large number of people, major accidents, disorganization, complete stoppage of the work of a state (municipal) body or institution , causing material damage on an especially large scale, etc. The crime under Part 3 of Art. 285 of the Criminal Code of the Russian Federation, is intentional and cannot be considered as committed with two forms of guilt (Article 27 of the Criminal Code of the Russian Federation).
It should be noted that the norm on liability for abuse of official powers is common to most of the norms on crimes of Chapter 30 of the Criminal Code of the Russian Federation (with the exception of Articles 288, 291, 293 of the Criminal Code of the Russian Federation). These norms contain special types of abuse of office, therefore, according to the rule established in Part 3 of Art. 17 of the Criminal Code of the Russian Federation, criminal liability occurs only according to a special norm, combined with Art. 285 of the Criminal Code of the Russian Federation is missing. The actions of a person are classified as a set of crimes only if the abuse of official powers forms an independent crime and such a set is real.
The elements of abuse of official powers should be distinguished from the elements of abuse of official powers. In this case, one should proceed from the fact that in the first case, the official illegally, contrary to the interests of the service, uses the rights and powers granted to him by law, and in the second, he commits actions that clearly go beyond his official competence (which relate to the powers of another official or could be committed by the official himself only in the presence of special circumstances specified in the law or by-law, as well as actions that no one has the right to commit under any circumstances).
What offenses are included in the criminal act provided for in Article 285 of the Criminal Code of the Russian Federation?
Article 285 of the Criminal Code of the Russian Federation provides for several elements of the criminal offense of “abuse of official powers”.
The main offense includes an offense committed for personal reasons in order to obtain benefits contrary to the interests of the service (Part 1 of Article 285 of the Criminal Code of the Russian Federation).
If a crime is committed by a citizen who is an official of a federal authority, an authority of a constituent entity of the Russian Federation or the head of a municipal entity, then the offense is qualified under Part 2 of Article 285 of the Criminal Code of the Russian Federation and is subject to a more severe punishment.
The third element includes a criminal act in the form of abuse of official powers, resulting in grave consequences (Part 3 of Article 285 of the Criminal Code of the Russian Federation).
To choose an effective method of protection from criminal liability for abuse of official status, we recommend contacting the lawyers of the SKP company. We will help determine whether the offense committed has the characteristics of a crime and whether harm has been caused to other persons.
Plenum of the Supreme Court of the Russian Federation under Art. 285 and 286 of the Criminal Code of the Russian Federation
PLENATURE OF THE SUPREME COURT OF RUSSIA?SKOI? FEDERATION
DECISION of October 16, 2009 N 19
ABOUT JUDICIAL? PRACTICE IN CASES OF ABUSE OF OFFICIAL POWERS AND EXCESS OF OFFICIAL POWERS?
In connection with the questions arising from the courts in cases of abuse of official powers and exceeding official powers?, Plenum of the Supreme Court of Russia? Federation, guided by the article? 126 of the Constitution of Russia? Federation, decides:
1. Draw the attention of the courts to the nature of the criminal case? responsibility for crimes against the interests of the state? services to ensure the protection of citizens from corruption and other socially dangerous acts committed by officials in the service. Persons who abuse official powers or exceed their official powers encroach on the activities of state bodies, local governments, state and municipal institutions, state corporations, the Armed Forces of Russia, regulated by regulatory legal acts? Federation, other military forces and military formations? Russia?skoi? Federation, as a result of which the rights and legitimate interests of citizens or organizations are significantly violated? or legally protected interests of society and the state.
2. Courts when considering criminal cases of abuse of power (Article 285 of the Criminal Code of the Russian Federation) and exceeding official powers? (Article 286 of the Criminal Code of the Russian Federation) it is necessary to establish whether the defendant is the subject of these crimes? - an official. In this case, it should be assumed that, in accordance with paragraph 1 of the note? to Article 285 of the Criminal Code of the Russian Federation, officials are recognized as 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, as well as in the Armed Forces The forces of Russia? Federation, other troops and military formations of Russia? Federation.
3. Should those performing the functions of a representative of power include persons endowed with the rights and responsibilities to perform the function? legislative, executive? or judicial? authorities, as well as, based on the content of the note to Article 318 of the Criminal Code of the Russian Federation, other persons of law enforcement or regulatory authorities vested in the manner prescribed by law with administrative powers in relation to persons not in their service? dependence, or the right to make decisions binding on citizens, organizations, institutions, regardless of their departmental? affiliations and forms of ownership.
4. By organizational and administrative functions should be understood the powers of an official that are associated with the management of the labor collective of a state body, state or municipal institution (its structural unit) or individual employees subordinate to them, with the formation of personnel and the determination of labor functions? employees, with the organization of the procedure for serving, the application of incentives or rewards, the imposition of disciplinary sanctions? and so on.
Organizational and administrative functions include the powers of persons to make decisions that have legal significance and entail certain legal consequences (for example, to issue a certificate of temporary incapacity for work by a medical worker, to establish by an employee of a medical and social examination institution that a citizen has a disability, to take exams and give grades member of the state examination (certification) commission).
5. How should administrative and economic functions consider the powers of an official to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of an organization?, institution?, military units and subdivisions?, as well as to commit other actions (for example, on making decisions? on the calculation of wages, bonuses?, exercising control over the movement of material assets, determining the procedure for their storage, accounting and control over their expenditure).
6. Execution of function? official by special authority means that a person carries out the functions of a representative of the government, performs organizational-managerial or administrative-economic functions assigned to him by law, other regulatory legal act, order or instruction of a superior official or an authorized body or official (for example , functions of a juror). The functions of an official under special authority can be performed for a certain time or once, and can also be combined with the main job.
During temporary performance of a function? an official or when performing them under a special authority, can a person be recognized as an official only during the period of performance of the functions assigned to him?. If a person appointed to a position violates the requirement? or restrictions?, established by law or other regulatory legal acts, to a candidate for this position (for example, in the absence of a diploma of higher professional education, the required work experience, with a criminal record, etc.), for selfish reasons? or others? personal? interest, used official powers contrary to the interests of the service, or committed actions that clearly went beyond the scope of his authority, resulting in a significant violation of the rights and legitimate interests of citizens or an organization? or legally protected interests of society or the state, then such actions should be qualified, respectively, as abuse of official powers or as excess of official powers?
7. In the Russian Armed Forces? Federation, other military forces, military (special) formations and bodies performing functions to ensure the defense and security of the state, officials who permanently, temporarily or by special authority perform organizational, administrative and (or) administrative and economic functions may be superiors by official position and (or) military rank. Chiefs by official position are persons to whom military personnel are subordinate in service. These should include: persons holding relevant military positions according to the state (for example, commander of a squad, company, head of the clothing service of a regiment); persons temporarily performing duties for the relevant? military? positions, as well as temporarily performing the functions of an official under special authority. Are civilian personnel superiors to subordinate military personnel in accordance with their positions? regular? position. Chiefs by military rank are defined in Article 36 of the Internal Affairs Charter? services of the Russian Armed Forces? Federations (in particular, sergeants and foremen are superiors by military rank for soldiers and sailors of only one military unit with them).
8. The subject of a crime, as provided for in Part 1 of Article 285 of the Criminal Code of the Russian Federation and Part 1 of Article 286 of the Criminal Code of the Russian Federation, is a person performing the functions of a representative of the government, performing organizational and administrative and/or administrative functions in a state body, local government body , state and municipal institution, state? corporations, as well as in the Russian Armed Forces? Federation, other military forces and military formations of Russia? Federation and at the same time not holding a Russian government position in these bodies? Federation or public office of the subjects of Russia? Federation.
9. When deciding the issue of the subject of a crime provided for in part 2 of article 285 of the Criminal Code of the Russian Federation or part 2 of article 286 of the Criminal Code of the Russian Federation, should the courts proceed from paragraphs 2 and 3 of the note? to Article 285 of the Criminal Code of the Russian Federation, according to which under persons holding public positions in Russia? Federations, refers to persons holding public positions established by the Constitution? Russia?skoi? Federation, federal constitutional laws and federal laws for the direct execution of powers? federal government bodies (paragraph 2 of the note?), and under persons holding government positions in the constituent entities of Russia? Federations are persons holding positions established by the constitutions or charters of the constituent entities of Russia? Federation for the direct execution of powers? state bodies of the constituent entities of Russia? Federation (point 3 note?). Step-by-step? list of government positions? Russia?skoi? Federation approved by the Decree of the President of Russia? Federation of January 11, 1995 N 32 (as amended on December 1, 2008).
10. Along with a person holding a government position in Russia? Federation or public office of a subject of Russia? Federation, the subject of liability under Part 2 of Article 285 of the Criminal Code of the Russian Federation and Part 2 of Article 286 of the Criminal Code of the Russian Federation is the head of the local government body, which should be understood only as the head of the municipal formation - the highest official of the municipal formation, endowed by the charter of the municipal formation with its own powers to resolve issues of local importance (Article 36 of the Federal Law of October 6, 2003 N 131-FZ “On the general principles of organizing local self-government in the Russian Federation”).
11. Courts should distinguish between criminal acts of officials and acts? other persons performing managerial functions in a commercial enterprise? or others? organizations whose liability for abuse of their powers is established by article? 201 of the Criminal Code of the Russian Federation.
The subjects of this crime are persons performing managerial functions in a commercial enterprise? or others? organizations, main? whose purpose is to make a profit, as well as non-profit? organization that is not a state body, local government body, state or municipal institution, state? corporations?. To persons performing managerial functions in commercial enterprises? or others? organizations include persons performing the functions of the sole executive body, member of the board of directors or other collegial executive body, as well as persons who permanently, temporarily or by special authority perform organizational, administrative or administrative functions in these organizations (for example, director, general director, member of the board of a joint stock company, chairman of a production or consumer cooperative, head of a public association, religious organization). In cases where these persons use their powers contrary to legitimate commercial interests? or others? organization and in order to obtain benefits and advantages for themselves or other persons or causing harm to other persons, are they subject to liability under Article 201 of the Criminal Code of the Russian Federation if this act entailed causing significant harm to the rights and legitimate interests of citizens or the organization? or legally protected interests of society and the state.
12. If, as a result of abuse of power by a person performing managerial functions in a commercial company? or others? organization, harm was caused to the interests of exclusively commercial? or others? an organization that is not a state or municipal enterprise, criminal prosecution is carried out upon the application of the head of this enterprise? organization or with its consent (Article 23 of the Code of Criminal Procedure of the Russian Federation). In case of harm to the interests of other organizations? (for example, a non-profit organization, state or municipal enterprise), as well as the interests of citizens, society or the state, criminal prosecution for abuse of power in commercial activities? or others? organization is carried out on a general basis (paragraph 3 of the note to Article 201 of the Criminal Code of the Russian Federation). When, as a result of abuse of power by a business manager? or others? Is the organization harmed solely by this? organization, criminal prosecution of the manager is carried out upon application or with the consent of the management body of the organization, whose competence includes the election or appointment of the manager, as well as with the consent of a member of the management body of the organization or persons who have the right to make decisions determining the activities of the legal entity.
13. In cases where an act containing signs of abuse of official powers (Article 285 of the Criminal Code of the Russian Federation) or exceeding official powers? (Article 286 of the Criminal Code of the Russian Federation), committed by an official to eliminate a danger directly threatening? of the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means, then such an act cannot be considered criminal, provided that the limits were not exceeded? necessity (Article 39 of the Criminal Code of the Russian Federation).
14. Acts of an official related to the use of official powers that resulted 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 (Article 42 of the Criminal Code of the Russian Federation). An official who has committed an intentional crime under this article? 285 of the Criminal Code of the Russian Federation or Articles? 286 of the Criminal Code of the Russian Federation, in pursuance of an order or instruction known to be illegal, bears criminal liability on a general basis. At the same time, the actions of the superior official who issued such? order or direction, should be considered if there is a basis for that? as incitement to commit a crime or organization of this crime and qualify accordingly? article Special? parts of the Criminal Code of Russia? Federations with links? to Part 3 or Part 4 of Article 33 of the Criminal Code of the Russian Federation. An official who issued a knowingly illegal? an 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.
15. Under the use by an official of his official powers? contrary to the interests of the service (Article 285 of the Criminal Code of the Russian Federation), the courts should understand the commission of such acts, which, although they were directly related to the exercise by the official of his rights and duties, were not caused by the official? necessity and objectively contradicted both the general tasks and requirements imposed on the state apparatus and the apparatus of local self-government bodies, and those goals and objectives for the achievement of which the official was endowed with the corresponding official powers. In particular, how should the actions of an official who is motivated by selfish motives be qualified as abuse of power? or others? personal? interests are carried out within the scope of his official powers? actions in the absence of mandatory conditions? or basis? for their implementation (for example, issuing a driver’s license to persons who have not passed the mandatory exam; hiring persons who do not actually perform labor duties; releasing subordinates by commanders (chiefs) from performing their official duties? with assignment to work in commercial organizations or arrangement of an official’s personal home). Does liability under Article 285 of the Criminal Code of the Russian Federation also arise for the intentional failure by an official to fulfill his duties? in the event that such inaction was committed for selfish reasons? or others? personal? interest, objectively contradicted the goals and objectives for the achievement of which the official was vested with the appropriate official powers, and entailed a significant violation of the rights and legitimate interests of citizens or an organization? or legally protected interests of society and the state.
16. When deciding whether the actions (inactions) of the defendant constitute a crime under article? 285 of the Criminal Code of the Russian Federation, under the signs of subjective? side of this crime, in addition to intent, one should understand: selfish interest - the desire of an official to commit unlawful acts? obtain for oneself or other persons a benefit of a property nature, not related to the illegal gratuitous circulation of property for one’s own benefit or for the benefit of other persons (for example, illegal receipt of benefits, credit, exemption from any property costs, return of property, repayment of debt, payment for services, payment of taxes, etc.); other personal interest - the desire of an official to benefit from a non-property nature, due to such motives as careerism, nepotism, the desire to embellish the actual situation, to receive a reciprocal favor, to enlist support? in resolving any issue, to hide one’s incompetence, etc. How does an official use his official powers? contrary to the interests of the service, protectionism should be considered, which is understood as the illegal provision of assistance in employment, promotion, promotion of a subordinate, as well as other patronage of the service, committed for selfish reasons? or others? personal? interest.
17. In contrast to the theft of someone else's property using one's official position, abuse of official powers for personal gain? interests are formed by such acts of an official that are either not related to the seizure of someone else’s property (for example, receiving property benefits from using property for other purposes), or are related to the temporary and (or) paid seizure of property. What if the official uses his official powers? expressed in the theft of someone else's property, when in fact it was confiscated, the act is fully covered by Part 3 of Article 159 of the Criminal Code of the Russian Federation or Part 3 of Article 160 of the Criminal Code of the Russian Federation and additionally? qualification under Article 285 of the Criminal Code of the Russian Federation is not required. In cases where an official, using his official powers, along with the theft of someone else's property, committed other illegal acts related to the abuse of official powers for personal gain? or others? personal? interest, what he did should be qualified according to the totality of these crimes? Likewise, based on the situation? Article 17 of the Criminal Code of the Russian Federation, the issue related to? from legal? ratings? action? official who performed official duties? forgery. In cases where such a person in connection with the performance of his official duties? introduced into official documents deliberately false information or corrections distorting their actual content, the act must be qualified under Article 292 of the Criminal Code of the Russian Federation. If, along with committing actions entailing criminal liability under Article 285 of the Criminal Code of the Russian Federation, they commit official duties? forgery, then the deed is subject to qualification in conjunction with the article? 292 of the Criminal Code of the Russian Federation.
18. In cases of abuse of power and exceeding official powers? courts should, along with other circumstances of the case, clarify and indicate in the verdict what exactly are the rights and legitimate interests of citizens or organizations? or the interests of society or the state protected by law have been violated and are there any damages? Causal harm to these rights and interests? connection with an official who committed a violation of his official powers?. Under a significant violation of the rights of citizens or organizations? as a result of abuse of official powers or exceeding official powers? should be understood as a violation of the rights and freedoms of individuals and legal entities guaranteed by generally recognized principles and norms of international law, the Constitution and? Russia?skoi? Federation (for example, the right to respect for the honor and dignity of the individual, personal? and family? life of citizens, the right to inviolability of home and confidentiality of correspondence, telephone conversations, postal, telegraph and other messages?, as well as the right to judicial protection and access to justice, including the right to an effective remedy in a government agency and compensation for damage caused by a crime, etc.). When assessing the significance of the harm, it is necessary to take into account the degree of negative impact of the unlawful act on the normal operation of the organization, the nature and size of the material damage it suffered, the number of injured citizens, the severity of the physical, moral or property damage caused to them, etc. In violation of the legitimate interests of citizens or organizations? as a result of abuse of official powers or exceeding official powers? should be understood, in particular, the creation of an obstacle? in the satisfaction of citizens or organizations of their needs, not contradicting the norms of law and society? morality (for example, the creation by an official of an obstacle?, limiting the ability to choose, in cases provided for by law, at his own discretion, an organization for cooperation).
19. Unlike intended? articles? 285 of the Criminal Code of the Russian Federation, responsibility for the commission of an action? (inaction) within its own? competence contrary to the interests of the service, responsibility for exceeding official authority? (Article 286 of the Criminal Code of the Russian Federation) occurs in the event of an official committing active actions that clearly go beyond the scope of his authority, which entailed a significant violation of the rights and legitimate interests of citizens or an organization? or legally protected interests of society or the state, if the official was aware that he was acting outside the powers vested in him. Exceeding official authority? can be expressed, for example, in the commission by an official in the performance of official duties? actions that: relate to the powers of another official (superior or equal in status); can be committed only in the presence of special circumstances specified in the law or regulations (for example, the use of weapons against a minor, if his actions did not create a real danger to the lives of other persons); committed by an official alone, but can only be carried out collectively or in accordance with the procedure established by law, in agreement with another official or body; no one has the right to commit under any circumstances. Based on the disposition of Article 286 of the Criminal Code of the Russian Federation to qualify the act as an abuse of official authority? The motive for the crime does not matter.
20. When qualifying an action? persons under paragraph “b” of part 3 of Article 286 of the Criminal Code of the Russian Federation, courts should understand the use of weapons or special means as intentional actions associated with the use by a person of the damaging properties of these objects, or their use for their intended purpose. By distinguishing abuse of official authority, committed with the use of weapons or special means, from lawful actions? officials, courts should take into account that the grounds, conditions and limits for the use of weapons or special means are defined in the relevant regulatory legal acts of Russia? Federation (for example, in the Federal Law of April 3, 1995 N 40-FZ “On the Federal Security Service”, Federal Law of February 6, 1997 N 27-FZ “On the Internal Troops of the Ministry of Internal Affairs of Russia?” Federation”, Federal Law of May 27, 1996 N 57-FZ “On State Security”, Law of the Russian Federation of April 18, 1991 N 1026-1 “On the Police”). Special means include rubber truncheons, handcuffs, tear guns? gas, water cannons, armored vehicles, means of destroying barriers, service dogs and other means in service with internal affairs bodies, internal troops, federal government agencies? security, federal authorities? security services, penal authorities? systems, etc.
21. By grave consequences as a qualifying feature of a crime, provided for in Part 3 of Article 285 of the Criminal Code of the Russian Federation and paragraph “c” of Part 3 of Article 286 of the Criminal Code of the Russian Federation, should we understand the consequences of committing a crime in the form of a major accident? and long-lasting? stopping transport or a production process, other disruption of the organization's activities, causing significant material damage, causing death by negligence, suicide or attempted suicide of the victim, etc.
22. When considering criminal cases of crimes provided for in article? 285 of the Criminal Code of the Russian Federation or Articles? 286 of the Criminal Code of the Russian Federation, the courts must find out which normative legal acts, as well as other documents, establish the rights and obligations of the accused official, citing them in the verdict, and indicate the abuse of which of these rights and obligations? or exceeding which of them is he charged with exile? to specific norms (article, part, paragraph). In the absence of the specified data in the indictment or indictment, which is not possible to fill in at the court hearing, is the criminal case subject to return to the prosecutor in accordance with Article 237 of the Code of Criminal Procedure of the Russian Federation to eliminate the obstacle? its consideration by the court.
23. Courts should keep in mind that in accordance with paragraph “a” of Part 1 of Article 104.1 of the Criminal Code of the Russian Federation, money, valuables and other property received as a result of a crime under Article 104.1? 285 of the Criminal Code of the Russian Federation, and any income from this property is subject to confiscation, with the exception of property and income from it that is subject to return to the rightful owner.
24. When establishing the circumstances that contributed to the commission of the crime, provided for in Articles 285 and 286 of the Criminal Code of the Russian Federation, violation? rights and freedoms of citizens, as well as other violations? law, committed during an inquiry, preliminary investigation or when considering a criminal case by a lower court, recommend that the courts, in accordance with Part 4 of Article 29 of the Code of Criminal Procedure of the Russian Federation, issue private rulings or decisions, drawing the attention of the relevant organizations? and officials on these circumstances and facts of violation? laws requiring the necessary measures to be taken to eliminate them.
25. In connection with the adoption of this Resolution, recognize as not valid on the territory of Russia? Federation Resolution of the Plenum of the Supreme Court of the USSR of March 30, 1990 N 4 “On judicial? practice in cases of abuse of power or official position, abuse of power or official authority?, negligence and forgery.”
Chairman of the Supreme Court of Russia? Federation V.M. LEBEDEV
Secretary of the Plenum, judge of the Supreme Court of Russia? Federation V.V. DOROSHKOV
Lawyer for malfeasance Art.
286 of the Criminal Code more details...
What are the characteristics of the difference between abuse of power and excess?
In practice, abuse of power is often confused with abuse of power. At the same time, these acts form independent elements of a crime.
The difference is that when abusing official status, a citizen acts within the framework of his job description, without going beyond the outlined responsibilities. The presence of selfish motive and personal interest must also be proven.
In addition, malpractice should be distinguished from negligence. If you have any doubts about the classification of an offense, you should consult with qualified SKP lawyers. If the elements of the offense provided for in Article 285 of the Criminal Code of the Russian Federation are not confirmed, we will help reclassify the act to a less serious one or prove the absence of a criminal act.
Who is held accountable for abuse of power?
In order to impose sanctions on a citizen under Article 285 of the Criminal Code of the Russian Federation, he must reach 18 years of age and have the direct intent to obtain personal gain.
The following may appear in the dock:
- representatives of state authorities and municipalities;
- employees with organizational and administrative powers;
- employees engaged in administrative and economic activities in a government agency;
- employees of state unitary enterprises, municipal unitary enterprises, commercial companies.
If you do not fall into one of these categories of persons, but you are charged with abuse of official status, you should immediately seek help from our lawyers. We will help you prove that you are not the subject of a crime.
What punishment is provided under Article 285 of the Criminal Code of the Russian Federation?
There are several penalties for abuse of power, which are assigned taking into account the severity of the offense.
The following types of sanctions are imposed by a court verdict:
- fine up to 80,000-300,000 rubles;
- forced labor for a period of up to 4-5 years;
- arrest for a period of up to six months;
- imprisonment for up to 4-10 years.
At the same time, a citizen may be deprived of the opportunity to occupy his official position or engage in a specific type of activity.
Help in case of violation
In cases where an official does not have a selfish motive or personal interest, abuse of official powers can be reclassified as a disciplinary offense .
A prerequisite for such actions is an insignificant violation of the rights and interests of citizens or organizations protected by law.
The current law of the Russian Federation is multifaceted, therefore one incorrect interpretation and a slight abuse of official authority goes to the part of abuse of official authority.
To understand exactly your violations and the extent of the deserved punishment, it is recommended to seek qualified help from a professional criminal lawyer.
Such a step could give the accused the opportunity to receive the minimum punishment provided for by law. They will help you organize the consideration of the case, taking into account all the circumstances, as well as correctly identify the damage caused.
