Punishment for abuse of official position

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.

Concept of an official

Abuse of a position of official type is a crime only if committed by an official. This definition includes representatives of government agencies in their area of work.

The following citizens belong to this category:

law enforcement officers (regardless of department and level) who occupy certain positions in this structure (police, prosecutor's office, investigative committee);
employees of government bodies at the federal, regional or municipal levels, some positions in the government (regional, state), city halls, administrations;
representatives of government bodies performing other functions in these structures (heads of personnel departments, heads of economic management).

A citizen may be vested with authority on a permanent or temporary basis. In particular, jurors are considered temporary officials, who are considered as such only for the duration of the trial.

The scope and list of responsibilities as representatives of government agencies is determined by the clauses of the employment contract, orders or instructions. For example, according to the norms of federal laws on the police and on service in internal affairs bodies, police officers, within the framework of their official powers, have the right to use service weapons for the following purposes:

to prevent potential danger posed by third parties;
to apprehend an armed criminal (offender);
during an operation that allows the use of special means.

If, when using a weapon or performing other actions related to the powers of a citizen, there is abuse of official position, the guilty person bears responsibility for this according to the provisions of the Criminal Code.

Who is harmed by illegal actions of officials?

Abuse of official position (giving a bribe, receiving a bribe, committing other illegal actions), depending on the circumstances under which it took place, is considered an act of moderate, minor or grave degree.

As a result of deliberate misuse of official position, damage may be caused to the following objects:

enterprises, organizations, institutions, other legal entities;
individuals;
interests of the state and society.

The difference between excess and abuse of power

Abuse of official position under the Criminal Code of the Russian Federation is considered in Article 285, and abuse of power in Article 286. Abuse is actions that are not provided for by the official duties of the offender, for example, the use of a service weapon by a police officer against a citizen whose actions do not pose a danger to others.

Exceeding is the fulfillment of one’s powers with a slight overstepping of their limits. Often this offense is committed without any selfish goals. Punishment for such actions is often not prescribed under the Criminal Code. In most cases, such crimes are converted into disciplinary offenses if there is no evidence against the employee that the act was selfish.

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.

Types of sanctions for abuse of power

For exceeding authority or committing other illegal actions (refusal to perform actions), the following types of sanctions may be imposed:

a fine, the amount of which ranges from eighty to one hundred thousand in rubles, or the income of the offender for six months;
forced labor for up to four years;
imprisonment for a term of four to six months;
imprisonment of a citizen for a maximum period of four years.

Any of these types of punishments may be accompanied by deprivation of the right to occupy certain positions or perform a certain type of work.

Possible liability for excess and ZDP

The Criminal Code fully describes situations of excess and abuse by persons of their official position and provides for various types of punishment depending on the severity of the crime committed. So, according to Art. 285 of the Criminal Code of the Russian Federation, abuse committed by a person who does not have the status of a government position of the Russian Federation, or the corresponding position of a subject of the Russian Federation, and who does not head local self-government bodies provides for:

A fine of up to 80 thousand rubles or six monthly income;
Deprivation of the right to hold a position or engage in certain types of activities for a period of up to five years;
Forced labor or imprisonment for up to 4 years;
Arrest lasting from 4 to 6 months.

Similar sanctions are provided in accordance with Art. 286 of the Criminal Code of the Russian Federation - excess of existing powers. For persons who hold the above-mentioned government positions, abuse of excess provides for more stringent measures taken:

A fine ranging from 100 to 300 thousand rubles or in the amount of income for a period of one to two years;
Forced labor for a period of up to five years, together with deprivation of the right to occupy certain positions for three years or without this condition;
Imprisonment for up to seven years.

Also, Art. 285 of the Criminal Code of the Russian Federation provides for mandatory imprisonment for a period of three to ten years, simultaneously with a three-year period of deprivation of the right to occupy certain positions, if the crime ultimately entailed grave consequences. Similar sanctions are regulated for abuse of power that actually entailed grave consequences, which was committed with the use of weapons, violent acts, or under the threat of such use.

In addition, Russian legislation provides for separate methods of qualification for embezzlement of budgetary and extra-budgetary funds, entering false and unreliable information into existing state-level registers, misappropriation of the powers of officials and other similar crimes regulated by other articles of the Criminal Code. Therefore, the correct qualification of an existing crime is an important task for an official investigation when subsequently applying to the justice authorities.

Certain internal orders of government bodies and internal regulations may also provide for the imposition of disciplinary sanctions, including both reprimands, reprimands or dismissals provided for by federal law, and those contemplated directly by the internal instructions of individual institutions. An example of such disciplinary sanctions could be demotion or a severe reprimand in the structures of the Ministry of Internal Affairs.

Judicial practice on abuse of power

One example of judicial practice is the investigation of a case of abuse of power by police department employees. Officials detained the drunk citizen and placed him under arrest. For five days, the person was kept in a cell without filing an application with the court or being given the right to contact a representative.

Due to inadequate care and poor nutrition, a diabetic citizen's sugar increased, which is why he was forced to seek hospital treatment. Police officers for these actions were punished with a fine in the amount of six months' income and dismissal from service.

Another example is fictitious employment of relatives by the director of an educational institution. They were on the staff in various positions, but did not work. The defendant took their wages for herself. For these actions, a criminal case was opened against the citizen.

The essence of malpractice

This definition is discussed in Article 285 of the Criminal Code. The acts considered by this norm include various types of use of official positions for selfish purposes by citizens in government structures. Moreover, these actions must violate the interests and rights of organizations and citizens.

The main object of the crime is the interests of the public service. An additional object is the interests of legal entities and individuals.

The subject of a criminal offense is a person holding a certain position. According to the law, punishment will be applied for criminal acts and inaction of these persons. For example, if an employee of a government agency does not fulfill his powers, as a result of which a third party receives any benefits for a fee.

In order for an action to be recognized as a crime, it is necessary to establish the presence of two facts: self-interest and intent. In addition, the consequences of the offense must be significant for the victims (for example, many victims, a significant amount of property damage and moral harm, violation of the constitutional rights of citizens).

The motives for the crime are considered to be self-interest or other personal interests. In the case of self-interest, the offender tries to obtain a material benefit or avoid unnecessary costs; in the case of personal interest, the offender tries to obtain an intangible benefit.

Qualification Questions

Restriction by subject

, definitions

- in Article 201 (performing managerial functions in a commercial or other organization is a person who permanently, temporarily or by special authority performs organizational, administrative or administrative duties in a commercial organization, regardless of the form of ownership, as well as in a non-profit organization that is not a state authority, local government, state or municipal institution).

- in Article 285 (officials are persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, administrative and economic functions in state bodies, local governments, state and municipal institutions, as well as in the Armed Forces Russian Federation, other troops and military formations of the Russian Federation).

Organizational and administrative functions include, for example, team management, placement and selection of personnel, organization of labor or service of subordinates, maintaining discipline, applying incentive measures and imposing disciplinary sanctions.

Administrative and economic functions may include, in particular, the authority to manage and dispose of property and funds on the balance sheet and bank accounts of organizations and institutions, military units and units, as well as performing other actions: making decisions on payroll, bonuses, monitoring the movement of material assets, determining the order of their storage, etc.

The concept of a government representative is given in the note to Article 318 of the Criminal Code: he is recognized as an official of a law enforcement or regulatory agency, as well as another official vested with administrative powers in the manner prescribed by law in relation to persons who are not officially dependent on him.

classification of officials by characteristics

1.Contents of functions

— representative of the authorities, — organizational and administrative — organizational and economic

The functions of a government representative arise from the law; decisions are binding on an indefinite number of persons. The forester of the Limited Liability Partnership "Leskhoz" will serve as a representative of the authorities, since he is a state inspector for forest protection.

2. Grounds and procedure for performing functions

- order of appointment to a position, job descriptions, charter of the organization, etc.

Problem: the possibility of qualifying a crime under Article 285 of the Criminal Code of the Russian Federation if the official:

- held his position unreasonably, was on vacation, committed illegal actions not on his territory (eg: precinct cop), - is a trainee, assistant

- if, by virtue of the law, the person should not have, but actually held a position (eg: the investigator is not a citizen of the Russian Federation). In such cases, the person is considered an appropriate subject, but there have been cases of overturning court decisions by a higher authority (including in supervision) on these grounds

— trainees are definitely not subjects of malfeasance.

— trainees holding positions, but not certified in the prescribed manner, without special qualifications. titles, class ranks, etc. – within the meaning of the law, they should be held criminally liable, since they exercise their powers in the prescribed manner, however, in different regions, practice follows different paths

3. Place of exercise of powers

— state authorities and local self-government;

- state and municipal institutions.

In practice, there are cases when a person performing organizational, administrative or administrative functions is delegated power (eg: ship captains, in accordance with the provisions of the Code of Criminal Procedure of the Russian Federation, can perform the functions of an inquiry body). In such circumstances, these persons should be held criminally liable for official crimes.

Criminal liability under Article 285 of the Criminal Code of the Russian Federation is possible in the presence of significant harm, which can be expressed in property damage (real damage, lost profits) and non-property harm - violation of the constitutional rights and freedoms of citizens. Significant harm can be expressed in the use of physical violence against a citizen if it bears signs of a crime against health.

4. By concealing crimes

- the report of the crime must be proper, that is, it must be submitted to the official;

— the person must have the appropriate powers; - the crime must be hidden.

According to Part 2 of Article 285 of the Criminal Code of the Russian Federation

abuse of official powers committed by a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, as well as the head of a local government body, is qualified. In this case, responsibility increases based on the subject of the crime. The definition of the concepts of persons holding public positions in the Russian Federation is given in notes 2 and 3 of Article 285 of the Criminal Code of the Russian Federation. Thus, under persons holding public positions of the Russian Federation, established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies.

Under persons holding government positions. positions established by the constitutions and charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies. In addition, Article 1 of the Federal Law “On State Civil Service” No. 79-FZ dated July 27, 2004 also defines a government position in the Russian Federation and a government position in a subject of the Russian Federation.

There are 2 points of view on the definition of officials:

1) persons holding public positions in the Russian Federation and constituent entities of the Russian Federation are the President of the Russian Federation, the Chairman of the Government of the Russian Federation, chairmen of the chambers of the Federal Assembly of the Russian Federation, ministers, heads of legislative and executive power of constituent entities of the Russian Federation and other persons.

2) a subject of qualified abuse of official powers can also be a civil servant holding public positions of category B, i.e. according to the Register of public positions of federal civil servants - public positions of the federal civil service established to directly ensure: the execution of the powers of the President of the Russian Federation, the activities of the Federation Council of the Federal Assembly, the chairman of the Federation Council of the Federal Assembly of the Russian Federation and his deputies, the activities of the State Duma of the Federal Assembly of the Russian Federation, the activities of the Government of the Russian Federation, the Chairman of the Government , his deputies and members of the Government, the Constitutional Court of the Russian Federation, the Chairman of the Constitutional Court of the Russian Federation, the judge - secretary of the Constitutional Court of the Russian Federation, the activities of the Chairman of the Supreme Arbitration Court of the Russian Federation and his deputies, the chairman of the Central Election Commission of the Russian Federation, the chairman of the Accounts Chamber of the Russian Federation, his deputies and auditors of the Accounts Chamber.

The first point of view seems to be the most correct, because According to the Constitution of the Russian Federation, state power in the Russian Federation is exercised by the President of the Russian Federation, the Federal Assembly of the Russian Federation (Federation Council and State Duma), the Government of the Russian Federation, and the courts of the Russian Federation. State power in the constituent entities of the Russian Federation is exercised by the state authorities formed by them. These persons directly exercise the powers of state bodies, and state civil service positions of category B only ensure the execution of the powers of the President of the Russian Federation, members of the Government of the Russian Federation and the Federation Council, deputies of the State Duma and judges of the Russian Federation. If we interpret criminal legislation literally, then the phrase “direct execution of powers” is not identical to the phrases “direct provision of powers” and “support of activities”.

Another subject of qualified abuse of official powers is the head of a local government body. There is no definition of this subject in the Criminal Code of the Russian Federation. Federal Law “On the general principles of organizing local self-government in the Russian Federation” No. 131-FZ gives the concepts of “head of a municipal entity,” who is the highest official of a municipal entity, and “head of a local administration.” The subject of the crime provided for in Article 285 of the Criminal Code of the Russian Federation will be the head of the municipality, if he heads the local government body; if not, the question is, the head of the local administration is not the subject since the local administration does not belong to the local government bodies.

Part 3 Article 285

provides for liability in the presence of a qualifying feature - the occurrence of grave consequences. In accordance with clause 10 of the RF PPVS “On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and forgery of official duties”, grave consequences mean the infliction of harm such as major accidents, long-term stoppage of transport or production process, disorganization of the work of an institution or enterprise, disruption of the implementation of national economic tasks, causing material damage to the state on an especially large scale, causing death or serious bodily harm to at least one person, etc. However, specific estimates have not been established, which causes difficulties in law enforcement practice.

Types of sanctions for abuse of official position

For giving a bribe or committing other illegal actions (refusal to perform actions), the following types of sanctions may be imposed:

a fine, the amount of which ranges from one hundred to three hundred thousand rubles, or the income of the offender for a year or two;
forced labor for up to five years;
imprisonment of a citizen for a maximum period of seven years.

Any of these types of punishment may be accompanied by deprivation of the right to occupy certain positions or perform a certain type of work for three years.

Special formulations

The punishment for abuse of official position may be increased if these actions lead to serious consequences. In this case, the period of detention is increased to ten years with deprivation of the right to work in a certain field for a three-year period.

More severe sanctions are applied to civil servants and other employees who abuse the powers of their positions. Therefore, these employees must have authority. Otherwise, they will be held liable under other provisions of the Criminal Code of the Russian Federation.

According to the provisions of the article of the Criminal Code, abuse of official position involves the commission of active actions in order to realize personal gain and interest.

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 .

Types of personal interest

Abuse of official position for personal gain occurs for two reasons:

material interest - receiving a certain amount of money or property rights (for example, a loan at a reduced rate, rent), as well as exemption from certain material obligations (for example, from repaying loan debt);
intangible interest - patronage, career advancement, obtaining documents, etc.

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 .

Judicial practice on abuse of power

According to the article in question, punishment for abuse of official position will be imposed depending on the severity of the act. Let's consider several examples of crimes of varying severity for which sanctions are applied under Article 185 of the Criminal Code of the Russian Federation:

an employee of the traffic police department issued a false accident report, in which he indicated damage to the car, which in fact did not exist, in order to increase insurance payments to the motorist and share the profit with the car owner;
the head of the municipal district administration employed a relative, illegally dismissing another employee from this position, while the new employee had neither qualifications, education, nor experience in the relevant position.

Conclusions on judicial practice

Apart from the Criminal Code, abuse of official position is dealt with in Ordinance No. 19, issued by the Supreme Court on October 16, 2009.

Based on these legal acts, a number of conclusions can be drawn:

When determining the gravity of the crime committed, judges are required to take into account whether the accused has real authority as an official.
If a citizen works in a commercial company and commits similar actions without being an official, he must be tried under Article 201 of the Criminal Code.
If during the commission of a crime negative consequences occurred only for a legal entity and did not affect the interests of society or the state, a criminal case will be initiated only after the filing of an application by the head of the affected organization.
If a citizen acted at the direction or order of a superior leader, his actions will not be considered a crime.

Abuse of position is not uncommon. However, its presence must be proven. It is also important to prove the existence of consequences and the official concerned.

What investigators must prove in case of abuse of power

Investigators must prove the existence of a crime, namely:

Object (interests of service, society and state)
Subject (official)

Objective side (illegal acts using one’s official powers must necessarily lead to a significant violation of the rights and legitimate interests of citizens, society or the state)

Subjective side (deliberate form of guilt, presence of selfish or other personal motives)

The subject of a crime can be officials, who understand:

persons performing the functions of government representatives,
persons performing organizational-managerial or administrative-economic functions in state and municipal bodies, state and municipal institutions, state extra-budgetary funds, state corporations, state-owned companies, in the Armed Forces of the Russian Federation.

And the act will be completed when the rights and legitimate interests of other persons are significantly violated.

So investigators must prove that

the person has any authority,
he used them contrary to the interests of the service,
the criminal act caused damage to the rights of citizens, society, the state,
the suspect had the intent to commit a crime, as well as selfish or other personal motives.