The accused has the right to know what he is accused of (clause 1, part 4, article 47 of the Code of Criminal Procedure of the Russian Federation). Otherwise, how can he defend himself against the charges brought against him? You present him with such a charge that it specifically describes point by point what crime he committed and how he committed it.
What do we have instead, especially for complex crimes (official, economic)? We have a pile of tricky word forms, sentences half a page long, densely sprinkled with articles of laws, numbers and rubbish that are not related to the matter.
Does the investigator try to make his accusation clear to the accused? No, on the contrary, he mixes such a “porridge” that even the judge will not understand. Nobody reads.
The accused thinks that writing is supposed to be so sophisticated, it’s not for nothing that lawyers study at their universities - they are obviously taught some special bird language there, incomprehensible to mere mortals, such as medical Latin.
Prosecutors and judges don’t read either, because... why the hell should they! No one will understand anything anyway.
The defense has to read, wading through the investigator's verbiage. And sometimes in this impassable place it is possible to find treasures that allow one to overturn an illegal accusation. To help the defense here is judicial practice, which nevertheless forms some idea of the individual supporting points that the prosecution must have , without which the prosecution machine will not move.
This is what the story is about. But first, a little history.
What officials abuse
Officials have always abused their status. And this was always assessed negatively. Because they must serve their homeland, not their own whims. Your homeland has given you power and authority - use them for the good of the fatherland, and not for your own self-interest.
And such abuses have always been regarded as crimes in the event of socially dangerous consequences. But let's see what revolution took place in the criminal law on this issue in 1996, when the current Criminal Code of the Russian Federation appeared.
Punishment under Part 1 of Art. 285 of the Criminal Code of the Russian Federation
Sanctions for committing a crime under Part 1 of Art. 285 of the Criminal Code of the Russian Federation are provided in the form of:
- fine (up to 80,000 rubles or in the amount of wages or other income of the convicted person for a period of up to six months),
- deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years,
- forced labor for up to four years,
- arrest for a period of four to six months,
- imprisonment for a term of up to four years.
The qualifying criteria are: holding a public office by the accused (part 2), grave consequences of the criminal act (part 3).
The following consequences may be serious:
- death of the victim;
- financial collapse of the injured party (including the enterprise);
- large-scale damage caused to the local budget;
- deprivation of the rights of citizens, societies, organizations, etc.
For the second part, the maximum penalty is imprisonment for up to seven years, and for the third – for up to ten years.
What happened
Under the Soviet (and immediately post-Soviet) government, the Criminal Code of the RSFSR had Article 170, which was called “Abuse of power or official position .”
Do you have power ? an official position ? Did you use them contrary to the interests of the service for your own personal gain, resulting in the consequences described in the article? Sushi crackers.
What did this look like in practice? The head of the criminal investigation department comes into the car service: “So, Chaldeans, who I am, does everyone know? Here are the keys to the car. So that by the evening it will be like new! Any questions?"
He pressed with authority. With your position and your power .
What happened
The Criminal Code of the Russian Federation (since 1996) is different. Article 285 is formulated similarly, but in one important point it is fundamentally different, as can be seen from its name - “Abuse of official powers .”
The authority is now in the law instead of power and official position . And if you have both power and position , but powers , there is no corpus delicti.
And therefore, according to the current law, the mentioned head of the criminal investigation department is innocent, because, I repeat, he used his position , power and authority, but not his official powers .
And that means...
This means that the investigator, involving an official under Art. 285 of the Criminal Code of the Russian Federation, must specifically indicate in the accusation what powers it abused .
This is what the Plenum of the Supreme Court of the Russian Federation said in paragraph 22 of Resolution No. 19 of October 16, 2009 “On judicial practice in cases of abuse of power and exceeding official powers”: ... the courts must find out which normative legal acts, as well as other documents, establish rights and the duties of the accused official, citing them in the verdict and indicating the abuse of which of these rights and duties... he is charged with, with reference to specific norms (article, part, paragraph) .
If the indictment does not contain... the specified data , which cannot be replenished at a court hearing, the criminal case must be returned to the prosecutor in accordance with Art. 237 of the Code of Criminal Procedure of the Russian Federation to remove obstacles to its consideration by the court.
The powers used for evil are not indicated? The case needs to be “reworked” for the investigator! Let him point. Can't specify? What crime are we talking about then?
This is what happened in the case, the documents from which are attached to the publication. The investigator wrote a lot of things in the indictment, but forgot the powers he misused. The court, with a clear conscience, returned the case to the prosecutor.
True, for the sake of the clear conscience of the court, there was one more violation in the charge, a very curious one, which caught my eye as soon as I first picked up the indictment. Honestly, I couldn’t believe my eyes; after all, it was signed by the regional prosecutor.
PLENATURE OF THE SUPREME COURT OF THE RUSSIAN FEDERATION
DECISION of December 25, 2021 N 46
ABOUT SOME ISSUES OF JUDICIAL PRACTICE IN CASES OF CRIMES AGAINST THE CONSTITUTIONAL RIGHTS AND FREEDOMS OF HUMAN AND CITIZENS (ARTICLES 137, 138, 138.1, 139, 144.1, 145, 145.1 OF THE CRIMINAL CODE OF THE RUSSIAN FED ERATIONS)
Protection of everyone's rights guaranteed by the Constitution of the Russian Federation to privacy, personal and family secrets (Part 1 of Article 23), to the privacy of correspondence, telephone conversations, postal, telegraph and other messages (Part 2 of Article 23), inviolability of home (Article 25), as well as the right to remuneration for work without any discrimination and not lower than the minimum wage established by federal law (Part 3 of Article 37), to state support for family, motherhood, paternity and childhood, disabled people and elderly citizens (Part 2 of Article 7, part 1 of Article 38) is ensured, inter alia, by establishing criminal liability for violation of these rights in the norms of the Special Part of the Criminal Code of the Russian Federation.
In order to ensure uniform application by courts of legislation on liability for crimes provided for in Articles 137, 138, 138.1, 139, 144.1, 145, 145.1 of the Criminal Code of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, decides to provide the following clarifications:
1. Draw the attention of the courts to the fact that in accordance with parts 1 and 2 of Article 137 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), criminal liability arises for the collection or dissemination of information about the private life of a person, constituting his personal or family secret, without his consent in the absence of those provided for by the Criminal Procedure Code of the Russian Federation and other federal laws (in particular, dated August 12, 1995 N 144-FZ “On operational investigative activities”, dated February 7, 2011 N 3-FZ “On Police”, dated November 21, 2011 N 323-FZ “On the fundamentals of protecting the health of citizens in the Russian Federation”) grounds for obtaining, using, and providing information about the private life of citizens without their consent.
2. When deciding whether a person’s actions contain the elements of a crime provided for in Part 1 or 2 of Article 137 of the Criminal Code of the Russian Federation, the court must establish whether it was his intention that information about the private life of a citizen should be kept secret.
Taking into account the provisions of these norms of criminal law in their interrelation with the provisions of paragraph 1 of Article 152.2 of the Civil Code of the Russian Federation, the collection or dissemination of such information in state, public or other public interests, as well as in cases where information about the private life of a citizen previously became publicly available or were made public by the citizen himself or at his will.
3. The collection of information about the private life of a person is understood as deliberate actions consisting of obtaining this information in any way, for example, through personal observation, listening, interviewing other persons, including recording information by audio, video, photographic means, copying documented information, as well as by stealing or otherwise acquiring them.
Dissemination of information about a person’s private life consists of communicating (disclosing) it to one or more persons orally, in writing or in any other form and in any way (in particular, by transmitting materials or posting information using information and telecommunication networks, including the Internet ").
4. When considering criminal cases of a crime under Article 138 of the Criminal Code of the Russian Federation, courts should keep in mind that the secrecy of correspondence, telephone conversations, postal, telegraph or other messages is considered violated when access to correspondence, negotiations, messages is made without the consent of the person whose secret they constitute, in the absence of legal grounds for limiting the constitutional right of citizens to the privacy of correspondence, telephone conversations, postal, telegraph and other messages.
A violation of the secrecy of telephone conversations is, in particular, illegal access to information about incoming and outgoing connection signals between subscribers or subscriber devices of communication users (date, time, duration of connections, subscriber numbers, other data that allows identifying subscribers).
Illegal access to the content of correspondence, negotiations, messages may consist of familiarization with the text and (or) materials of correspondence, messages, listening to telephone conversations, audio messages, copying them, recording them using various technical devices, etc.
5. In Article 138 of the Criminal Code of the Russian Federation, other messages should be understood as messages from citizens transmitted via electrical communication networks, for example SMS and MMS messages, fax messages transmitted via the Internet, instant messages, emails, video calls, as well as messages sent by other means.
6. According to Article 138 of the Criminal Code of the Russian Federation, illegal actions that violate the secrecy of correspondence, telephone conversations, postal, telegraph or other messages of specific persons or an indefinite number of persons are subject to qualification if they are committed with direct intent. In this case, liability under this article occurs regardless of whether the information transmitted in correspondence, negotiations, messages constitutes a personal or family secret of the citizen or not.
7. Criminal liability under Article 138.1 of the Criminal Code of the Russian Federation for the illegal production, acquisition and (or) sale of special technical means intended for secretly obtaining information occurs in cases where these actions are committed in violation of the requirements of the legislation of the Russian Federation (for example, Federal laws from August 12, 1995 N 144-FZ “On operational investigative activities”, dated May 4, 2011 N 99-FZ “On licensing of certain types of activities”, resolutions of the Government of the Russian Federation dated July 1, 1996 N 770, dated March 10, 2000 N 214, dated April 12, 2012 N 287) without an appropriate license and not for the purposes of the activities of bodies authorized to carry out operational investigative activities.
8. Within the meaning of the law, technical devices (smartphones, voice recorders, video recorders, etc.) can be recognized as special technical means only if they are intentionally given new qualities and properties through technical modification, programming or other means, allowing them to be used secretly receive information.
In cases where special knowledge is required to establish that a technical device is one of the means intended (developed, adapted, programmed) for secretly obtaining information, the court must have the appropriate conclusions of a specialist or expert.
9. Explain to the courts that participation in itself in the illegal trafficking of special technical means cannot indicate a person’s guilt in committing a crime under Article 138.1 of the Criminal Code of the Russian Federation, if his intent was not aimed at the acquisition and (or) sale of precisely such means (for example , a person, through a publicly available Internet resource, acquired a special technical device advertised as a device for household use, being conscientiously misled about its actual purpose).
The actions of a person who purchased a device intended for secretly obtaining information with the intention of using, for example, for the purpose of ensuring personal safety, the safety of family members, including children, the safety of property or for the purpose of tracking animals cannot be qualified under Article 138.1 of the Criminal Code of the Russian Federation. and did not intend to use it as a means of encroaching on the constitutional rights of citizens.
10. Draw the attention of the courts to the fact that Article 139 of the Criminal Code of the Russian Federation provides for criminal liability for entry into a home committed against the will of the person living in it, in the absence of those provided for by the Criminal Procedure Code of the Russian Federation and other federal laws (in particular, Article 15 of the Federal Law dated February 7, 2011 N 3-FZ “On the Police”, part 3 of Article 3 of the Housing Code of the Russian Federation, paragraphs 5, 6 of part 1 of Article 64 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”) grounds for restrictions on the constitutional right to inviolability of the home.
11. In accordance with the provisions of Article 139 of the Criminal Code of the Russian Federation, criminal liability under this article entails illegal entry into an individual residential building with its residential and non-residential premises (for example, a veranda, attic, built-in garage); to residential premises, regardless of the form of ownership, included in the housing stock and suitable for permanent or temporary residence (apartment, room, office premises, residential premises in a dormitory, etc.); to another premises or building not included in the housing stock, but intended for temporary residence (apartments, garden house, etc.).
At the same time, illegal entry cannot be qualified under this article, in particular, into premises, buildings, structurally separate from an individual residential building (barn, bathhouse, garage, etc.), if they were not specially adapted and equipped for habitation ; to premises intended only for temporary stay, and not for living in them (train compartment, ship cabin, etc.).
12. Within the meaning of Article 139 of the Criminal Code of the Russian Federation, illegal entry into a home can take place without entering it, but with the use of technical or other means, when such means are used to violate the inviolability of the home (for example, to illegally install a listening device or video surveillance device) .
13. Taking into account the fact that criminal liability for violation of the inviolability of the home occurs in the case when the perpetrator illegally enters the home, realizing that he is acting against the will of the person living in it, entry into the home committed by deception or abuse of trust is qualified under article 139 of the Criminal Code of the Russian Federation.
The actions of a person who is in a dwelling with the consent of the person living in it, but who refuses to comply with the requirement to leave it, do not constitute this crime.
14. Courts must keep in mind that when illegally entering a home, the intent of the perpetrator must be aimed at violating the right of citizens living in it to their inviolability. When deciding whether a person has such intent, one should proceed from the totality of all the circumstances of the case, including the presence and nature of his relationship with the citizens living in the premises or building, the method of entry, and others.
15. The actions of the perpetrator can be qualified under Part 2 of Article 139 of the Criminal Code of the Russian Federation if violence or the threat of its use was committed at the time of the invasion of the premises or immediately after it in order to implement the intent to illegally enter the home.
16. Draw the attention of the courts to the fact that criminal liability under Articles 144.1, 145 of the Criminal Code of the Russian Federation for an unreasonable refusal to hire or unjustified dismissal of a person who has reached the pre-retirement age specified in the note to Article 144.1 of the Criminal Code of the Russian Federation, as well as a woman who is known to be pregnant or having children under the age of 3 years (mother, female adoptive parent, female guardian or foster mother raising one or more children under the age of 3 years), occurs only in cases where the employer was guided by a discriminatory motive related, respectively, to the person’s achievement pre-retirement age, pregnancy of the woman or the presence of children under the age of 3 years.
If the employment contract with the employee was terminated on his initiative, but there is evidence in the case that the employer forced the employee to submit a resignation letter of his own free will precisely in connection with his pre-retirement age, the woman’s pregnancy or the woman’s presence of children under the age of 3 years, such actions also form a crime under Article 144.1 or 145 of the Criminal Code of the Russian Federation, respectively.
17. Non-payment of wages, pensions, scholarships, allowances and other payments established by law partially (in the case when for more than three months in a row payments were made in the amount of less than half of the amount payable) or their non-payment in full (when for more than two months in a row payments were not made or the amount payment of wages was lower than the minimum wage established simultaneously throughout the entire territory of the Russian Federation by federal law) is qualified accordingly under Part 1 or Part 2 of Article 145.1 of the Criminal Code of the Russian Federation only when the specified acts are committed intentionally, out of selfish or other personal interest.
In this regard, the circumstances to be proven and giving grounds for criminal liability under Article 145.1 of the Criminal Code of the Russian Federation of the head of an organization or another person specified in this article should include whether he has a real financial ability to pay wages, other payments or the absence of such an opportunity due to his illegal actions.
18. Courts should keep in mind that criminal liability in accordance with Article 145.1 of the Criminal Code of the Russian Federation arises, among other things, in cases of non-payment of wages and other payments to employees with whom an employment contract was not concluded or was not properly executed, but they started work with the knowledge or on behalf of the employer or his authorized representative (Article 16 of the Labor Code of the Russian Federation).
19. For the purposes of Article 145.1 of the Criminal Code of the Russian Federation, the period of formation of arrears in payments to an employee must be calculated based on the terms of payment of wages established by the internal labor regulations of the organization, a collective agreement, an employment contract, as well as from the time during which wages were not actually paid in full or partially. In this case, the two-month or three-month period for delayed payments is calculated from the day following the established payment date. Periods of non-payment for individual months of the year cannot be summed up to exceed two or three months if they were interrupted by periods for which payments were made.
20. The statute of limitations for criminal prosecution for committing a crime under Article 145.1 of the Criminal Code of the Russian Federation is calculated from the moment of its actual completion, in particular from the date of repayment of the debt, dismissal of the guilty person or his temporary removal from office. The dismissal of an employee who has not been paid wages does not affect the calculation of the statute of limitations for criminal prosecution of the employer.
21. Non-payment of wages to the same employees or to different employees, partially for more than three months and in full for more than two months, if the act was covered by the single intent of the perpetrator, is qualified only under Part 2 of Article 145.1 of the Criminal Code of the Russian Federation, and all signs of the act must be given in a descriptive parts of the conviction.
In other cases, non-payment of wages partially and completely forms a set of crimes provided for in parts 1 and 2 of Article 145.1 of the Criminal Code of the Russian Federation.
22. In each criminal case of crimes against the constitutional rights and freedoms of man and citizen, the court must check whether there are grounds for releasing the perpetrators from criminal liability.
Criminal cases of crimes provided for in Part 1 of Article 137, Part 1 of Article 138, Part 1 of Article 139, Article 145 of the Criminal Code of the Russian Federation are classified as cases of private-public prosecution and, in accordance with Part 3 of Article 20 of the Criminal Procedure Code of the Russian Federation, are not subject to mandatory termination due to reconciliation between the victim and the accused. At the same time, in the cases provided for in Article 76 of the Criminal Code of the Russian Federation, if a person for the first time committed such a crime, which is a crime of minor gravity, reconciled with the victim and made amends for the harm caused to him, then the court has the right, based on the statement of the victim, to terminate the criminal case against this person.
23. Courts, when considering criminal cases for crimes provided for in Chapter 19 of the Criminal Code of the Russian Federation, should respond to violations of the rights and freedoms of citizens guaranteed by the Constitution of the Russian Federation, as well as other violations of the law by issuing private rulings or resolutions to relevant organizations and officials for them to take the necessary measures (Part 4 of Article 29 of the Criminal Procedure Code of the Russian Federation).
Chairman of the Supreme Court of the Russian Federation V. LEBEDEV
Secretary of the Plenum, Judge of the Supreme Court of the Russian Federation V. MOMOTOV
