New edition of Art. 286 of the Criminal Code of the Russian Federation
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.
Exceeding official authority
Lawyer Antonov A.P.
Concept, signs, difference from abuse of power
This crime is regulated by Art. 286 of the Criminal Code of the Russian Federation. This crime is a special type of abuse by an official of his official position. The difference between this crime and abuse of official powers is that in case of abuse, an official uses the powers granted to him unlawfully, contrary to the interests of the service, and in case of abuse of official powers, the person commits actions that clearly go beyond the limits of his official competence. To establish the signs of this crime, it is necessary to accurately establish the scope of powers granted to this official. These powers are determined by regulations, charter, instructions or other normative acts. Exceeding official authority occurs if the actions of this person were related to the performance of his official duties. Actions that go beyond the authority of an official will be considered: 1) Actions related to the authority of another person, an official of another department or collective body; 2) Actions committed by this official, but in the presence of certain circumstances; 3) Actions that no one can commit under any circumstances (for example: causing violence to a citizen who came to see a given official).
The subject is only an official from among civil servants.
The end of the crime
The crime will be considered completed from the moment the consequences occur, namely: a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. The resulting consequences must be in a causal connection with the actions of the official, which clearly go beyond the scope of his powers.
Exceeding official authority entails liability in the presence of intentional guilt, when the official realizes that the actions he has committed clearly go beyond the powers granted to him. In this case, the motive will not matter.
Qualification
Part 2 of this article contains the following qualifying circumstance - abuse of official powers by a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, or the head of a local government body.
Part 3 provides for three particularly qualifying circumstances. Violence can be expressed in the victim’s infliction of blows, beatings, minor and moderate harm to health, as well as in the deprivation of his freedom. If violence is expressed in the intentional infliction of grievous bodily harm or intentional murder, then such actions go beyond the scope of the offense under consideration and require qualification under other articles in the aggregate (Article 111 or Article 105 of the Criminal Code of the Russian Federation). Another particularly aggravating circumstance would be the use of weapons or special means. Special means will include items such as handcuffs, rubber batons, tear gas, water cannon and others. And the third sign will be the infliction of grave consequences. Such consequences may be: causing death by negligence or causing particularly large material damage and other serious harm.
Responsibility
Art. 286 of the Criminal Code of the Russian Federation provides for the following types of criminal liability for this crime: Part 1 of Article 286 of the Criminal Code of the Russian Federation - a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months, or deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or arrest for a term of four to six months, or imprisonment for a term of up to four years. Part 2 of Article 286 of the Criminal Code of the Russian Federation - a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of one to two years, or imprisonment for a term of up to seven years with deprivation of the right to occupy certain positions or engage in certain activities for a period of up to three years or without it. Part 3 of Article 286 of the Criminal Code of the Russian Federation – 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
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Commentary to Art. 286 Criminal Code
1. The objective side is characterized by three mandatory features.
An act represents actions that clearly go beyond the authority of an official (committing a crime through inaction is impossible).
There are four typical forms of abuse of power:
actions relate to the powers of another official (superior or equal in status);
actions can be performed only in the presence of special circumstances specified in the law or regulation;
actions are performed 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 under any circumstances has the right to perform such actions (see paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19).
2. The crime is 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 addition, it is necessary to establish a causal connection between the act and the consequences that occurred. In the absence of consequences, the act usually constitutes a disciplinary offense or an administrative offense.
3. The subjective side is characterized by direct intent, in contrast to Art. 285 of the Criminal Code, motives do not matter for the qualification of a crime. At the same time, the person must be aware that he is committing actions that clearly go beyond his authority.
4. Special subject: official.
5. The signs of a qualified staff (Part 2) coincide with similar signs in Art. 285 CC; the signs of a particularly qualified composition (part 3) are disclosed in paragraphs 20 - 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19.
Presence of selfish or other personal motives for abuse of official powers
The most difficult thing for law enforcement agencies is to prove the presence of selfish or personal interest. Without this corpus delicti there will be no crime.
The mere illegality of a subject’s use of his official powers cannot indicate that he has a personal interest.
For example, the cassation ruling of the Supreme Court of the Russian Federation dated September 7, 2021 N 75-UD16-3. The Supreme Court of the Russian Federation declared the sentence passed against two officials of the Ministry of Agriculture of the Republic of Karelia illegal, unfounded and subject to cancellation, since the lower court did not specify what exactly the selfish motives of the convicts were and did not provide relevant evidence.
In addition, in paragraphs 13 and 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and exceeding official powers” it is stated that the commission of an act in a situation of extreme necessity or in pursuance of a mandatory order cannot be considered criminal.
But sometimes courts interpret the concept of “other personal interest” too broadly. For example, in Resolution No. 209-UD18-5 of August 13, 2018, the Supreme Court considered that the accused “falsely understood the interests of the service.” The court interpreted the fact that the serviceman organized a fundraiser to carry out repairs to the office premises as “a desire to properly carry out the instructions of the leadership of the military school to carry out repairs in the unit entrusted to him, that is, to improve the results of his official activities and increase his authority before the higher command.”
Third commentary to Article 285.2 of the Criminal Code of the Russian Federation
1. The concept of funds from state extra-budgetary funds is contained in federal laws that determine the procedure for the formation, accounting and expenditure of funds received as mandatory payments through deductions made from the federal budget, voluntary contributions from legal entities and individuals, and other income provided for by the legislation of the Russian Federation. Mandatory extra-budgetary funds in the Russian Federation include: the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal and territorial funds of compulsory medical insurance.
2. The objective side of this crime is expressed in the commission of an action aimed at spending funds from state extra-budgetary funds for the purposes and contrary to the grounds provided for by regulatory legal acts. Spending of funds should be understood as the procedure for financing specific activities by sending the necessary payment document to the bank and debiting funds from the account. When spending funds from extra-budgetary funds, control over their activities is carried out by the financial authorities of the corresponding budget level (Article 150 of the Budget Code of the Russian Federation), which exercise their powers within the framework of a similar procedure established for monitoring the execution of state budgets. Inappropriate spending of state extra-budgetary funds should be considered the use of funds in violation of the financing procedure established by law or regulation, non-compliance with the legal grounds for conducting financial transactions, which is associated with a violation of financial discipline (incorrect accounting of primary accounting documentation, direct violation of Federal Law of December 6, 2011 N 402 - Federal Law “On Accounting”, etc.).
3. According to the design of the objective side, this crime is classified as formal and is recognized as completed at the moment the bank writes off budget funds from the account of its manager on the basis of a received payment document (payment order) in a large amount or in an especially large amount (note to Article 285.1).
4. The subjective side is characterized by guilt in the form of direct intent, when the perpetrator realizes that he is illegally spending funds from an extra-budgetary fund and wants to spend them. At the same time, the purpose of committing this crime has no legal significance and does not affect the qualification of the crime.
5. A special subject of a crime is an official who holds a position in a specific fund and has the authority to manage funds.
‹Article 285.1. Inappropriate spending of budget fundsUp Article 285.3. Entering knowingly false information into unified state registers ›
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 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.
How to distinguish an act under Art. 285 of the Criminal Code of the Russian Federation from other compounds
Abuse of official powers is often confused with abuse of official powers (Article 286 of the Criminal Code).
The difference between them is that in case of abuse, the employee acts within the framework of his official regulations, within the limits of his official duties. And if it is exceeded, the citizen arrogates to himself the powers of another official.
In addition, abuse of official position is often confused with negligence (Article 293 of the Criminal Code). But negligence occurs when a person, having an objective opportunity to perform his official duties, does nothing, and thereby damages the rights of others. For example, the investigator did not open a criminal case, and the criminal, remaining free, takes revenge on the victim and beats him.
