Officials are vested with certain powers. And if they commit criminal acts (malfeasance) using their official position for their own, including selfish, purposes, then this causes significant damage to citizens, society, and the state. Therefore, the legislator combined such crimes into a separate chapter of the Criminal Code. In this article we will talk about the responsibility provided for in Art. 285-293 of the Criminal Code of the Russian Federation).
What are malfeasance
Official crimes are illegal acts (actions or inactions) of officials that cause significant harm to state and public interests.
Such crimes have common features that distinguish them from other criminal acts:
- they are committed by government officials and state or municipal employees using their official position;
- they encroach on the legal, fair implementation of state and municipal services;
- victims can be any citizens who have suffered material, moral or physical harm due to the illegal actions of an employee.
Crimes committed by officials are subject to thorough investigation and invariably attract the attention of the media, social networks, and the public.
The general (generic) object of such crimes is the normal functioning of state power, the implementation of public service. Malfeasance violates this order.
Types of malfeasance
This category of crimes is allocated a special chapter of the Criminal Code of the Russian Federation (Chapter 30):
Article 285. Abuse of official powers
Article 285.1. Misuse of budget funds
Article 285.2 . Misuse of state extra-budgetary funds
Article 285.3. Entering knowingly false information into the unified state registers
Article 285.4. Abuse of official powers in the implementation of state defense orders
Article 286. Exceeding official powers
Article 286.1. Failure of an employee of an internal affairs body to comply with an order
Article 287. Refusal to provide information to the Federal Assembly of the Russian Federation or the Accounts Chamber of the Russian Federation
Article 288. Assignment of powers of an official
Article 289. Illegal participation in business activities
Article 290. Receiving a bribe
Article 291. Giving a bribe
Article 291.1. Mediation in bribery
Article 291.2. Petty bribery
Article 292. Official forgery
Article 292.1. Illegal issuance of a passport of a citizen of the Russian Federation, as well as the entry of knowingly false information into documents, resulting in the illegal acquisition of citizenship of the Russian Federation
Article 293 . Negligence
What malfeasance occurs most often? The most common of them include:
- abuse of official powers (Article 285 of the Criminal Code of the Russian Federation);
- inappropriate spending of budget funds (Article 285.1 of the Criminal Code of the Russian Federation);
- abuse of official powers (Article 286 of the Criminal Code of the Russian Federation);
- receiving a bribe (Article 290 of the Criminal Code of the Russian Federation);
- giving a bribe (Article 291 of the Criminal Code of the Russian Federation);
- official forgery (Article 292 of the Criminal Code of the Russian Federation);
- negligence (Article 293 of the Criminal Code of the Russian Federation).
Let's look at some of them in more detail.
Third commentary to Article 288 of the Criminal Code of the Russian Federation
1. The object of this crime is the interests and normal activities of state authorities and management, the rights and legitimate interests of a particular citizen, organization, enterprise, institution.
2. The objective side is characterized by the commission of guilty actions associated with unlawful, contrary to the procedure established by law, unauthorized appropriation of the powers of an official. In fact, a civil servant or an employee of a local government body presents himself to other persons in the role of an official. For example, a full-time employee of the legislative body exercises powers that only a people's deputy can have. The use of the powers of a people's deputy is their actual appropriation. A civil servant impersonates a deputy and, through the use of the powers of a deputy, commits criminal acts. A mandatory feature of the objective side of this crime is the infliction of harm in the form of a significant violation of the rights and legitimate interests of citizens, organizations, enterprises, and institutions. The objective side of the assignment of the powers of an official is characterized by the following integral features: a) the act is committed by a civil servant or an employee of a local government body; b) the act involves the appropriation of the powers of an official or representative of government; c) the commission of an act involves impersonating oneself to other persons as an official; d) the act entails a significant violation of the rights and legitimate interests that constitute the object of criminal legal protection; e) a causal connection has been established between the act and a significant violation of rights.
3. The subjective side of a crime represents only an intentional form of guilt. With direct intent, the perpetrator wants to significantly violate the rights protected by law, and with indirect intent, he consciously allows this or is indifferent to it.
4. The subject of a crime is only a civil servant or an employee of a local government body who has reached the age of 16 and is of sound mind.
‹ Article 287. Refusal to provide information to the Federal Assembly of the Russian Federation or the Accounts Chamber of the Russian FederationUp Article 289. Illegal participation in business activities ›
Abuse of official powers (Article 285 of the Criminal Code)
This crime is associated with the use by a citizen of his powers contrary to the goals of his official activities with a selfish motive, which leads to harm to citizens, companies and the state.
For the crime to end, dangerous consequences must occur.
For example, a person issues a driver’s license to a person who has not passed the test, or puts a citizen in line for preferential housing without grounds.
An important sign of such a criminal act is the presence of selfish or other personal interest.
As explained by the Supreme Court of the Russian Federation, in Resolution No. 19 of October 16, 2009, selfish interest is the intention to obtain property benefits that are not related to the gratuitous acquisition of property (illegal receipt of benefits, exemption from debt repayment, taxes, etc.). Another personal interest is associated with the desire to obtain a non-property benefit (mutual favor, support in resolving an issue, etc.).
More details about the act under Art. 285 of the Criminal Code of the Russian Federation, read the article.
Exceeding official powers (Article 286 of the Criminal Code of the Russian Federation)
This crime represents the actions of a citizen that clearly go beyond the scope of his job regulations and relate to the powers of another employee; he performs actions that go beyond his capabilities and rights.
From the objective side, abuse of power can be expressed in the commission of actions that:
- relate to the powers of another employee;
- can only be carried out if appropriate conditions exist (for example, the use of weapons);
- are made individually, although decisions should be made jointly;
- should never be committed (beatings, torture).
Exceeding official authority
The objective side of abuse of power is the commission of socially dangerous actions that clearly go beyond the authority of the official. Exceeding official powers is characterized by the commission of actions: a) within the competence of an official of a given department; b) falling within the competence of an official of another department; c) which could only be committed collectively; d) although within its competence, but which it could have committed in the presence of the conditions specified in the law or other regulatory act.
All of these forms of excess must clearly (obviously) go beyond the powers granted to the official. Understanding the obvious nature of abuse of power is mandatory for the subject of the crime. Therefore, in order to establish in each specific case of excess a clear violation of the limits of authority, it is necessary to clarify the content of the official’s authority.
A mandatory feature of the objective side is criminal consequences. This is a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state. Their content is similar to the content of the consequences in Art. 285. Excess is characterized by causing harm to the person or the health of citizens, which is considered a particularly serious form of violation of the interests of citizens. The public danger of harm to the rights and interests of citizens increases due to the fact that personal harm by its nature is irreparable, and that it is caused by officials, whose primary duty is to protect the rights and legitimate interests of citizens.
When determining the significance of harm, one should proceed not only from the amount of property damage, but also take into account the moral harm caused to the individual. Excess often occurs in the form of a continuing crime. In this case, the harm consists of a number of consequences, which together determine its significance.
Causality is a mandatory objective sign of abuse of power. In this composition, the causal relationship is characterized by the absence of extension in time.
From the subjective side, abuse of power is an intentional crime. A person acts with direct or indirect intent.
The subject of the crime is a special one - an official.
Qualified excess (Part 2) can only be imputed to: a) a person holding a government position in the Russian Federation; b) a person holding a government position in a constituent entity of the Russian Federation, or c) the head of a local government body.
A particularly qualified crime (Part 3) is formed by the acts provided for in Part 1 or 2 of the article, if they are committed:
a) with the use of violence or the threat of its use. Physical violence may be accompanied by blows, beatings (Article 116 of the Criminal Code), and torture (Article 117 of the Criminal Code). Part 3 of the article covers cases of causing minor, moderate harm to health, as well as serious harm to health, provided for in Part 1 of Art. 111 of the Criminal Code. Intentional infliction in excess of death, grievous bodily harm, provided for in Parts 2, 3,4, Art. 111 of the Criminal Code, forms a set of crimes. Mental violence in the form of a threat of violence must be real and obvious to the victim;
b) using weapons or special means. The use of a weapon means the actual use of it to hit a living target, as well as as a means of physical violence to inflict blows, beatings, bodily harm or mental influence on the victim. Part 3 of the article refers to weapons as such, i.e. devices and objects that are structurally designed to hit a living target. This can be a firearm, bladed weapon, throwing weapon, pneumatic weapon, or gas weapon. According to their purpose, weapons can be civilian, service, combat, hand-held, small arms and bladed weapons. Special means include rubber truncheons, tear gas, handcuffs, means of destroying barriers and forcibly stopping transport, water cannons, armored vehicles, and service dogs. To qualify under Part 3 of the article, it is required that a weapon or special device be used in violation of the established rules;
c) causing grave consequences. In each specific case, the decision to cause serious consequences is a question of fact and is subject to careful evaluation. The concept of this feature is close to the concept of a similar feature in Part 3 of Art. 285.
Assignment of powers of another person (Article 288 of the Criminal Code of the Russian Federation)
The objective side of the crime is the misappropriation by a civil servant or municipal employee who is not an official.
For example, a person conducts an inspection, although he is not vested with such a right.
To recognize the presence of a crime, grave consequences must occur, otherwise such an act will only be qualified as a disciplinary offense.
Misuse of budget funds (Article 285.1 of the Criminal Code of the Russian Federation)
The subject of such a crime is budgetary funds. The objective side is expressed in the expenditure of budget funds for purposes that do not meet the conditions for receiving these budget funds, committed on a large scale (over 1 million 500 rubles).
The corpus delicti is formal. The crime is completed from the moment budget funds are directed to purposes not provided for by the relevant document - from the moment they are written off from the personal account of the budget institution.
Commentary to Art. 288 Criminal Code
1. The objective side consists of two mandatory actions: firstly, the assignment by a civil servant or municipal employee of the powers of an official and, secondly, the commission by him in connection with this of actions entailing a significant violation of the rights and legitimate interests of citizens or organizations. In fact, the culprit misleads citizens and representatives of legal entities and, under the guise of an official, commits certain legally significant actions; thus, in performing actions under the guise of an official, both actions are actually combined.
2. The crime is completed from the moment of a significant violation of the rights and legitimate interests of citizens or organizations. The invalidity of actions committed under the guise of an official and the need for citizens or organizations to reapply for their commission actually mean the presence of this consequence in almost all situations of appropriation of the powers of an official.
Receiving a bribe (Article 290 of the Criminal Code of the Russian Federation)
Taking a bribe is one of the most dangerous crimes against the interests of the service. A bribe can be in the form of money, securities, other property, as well as in the form of property services (renovation of an apartment, construction of a summer house) and property rights (right to use property, right of economic management, operational management, easement, etc.).
In return, the official:
- performs actions (inactions) within his official powers in favor of the bribe-giver or persons represented by him;
- contributes, by virtue of his official position, to the commission of the specified actions (inaction);
- patronizes at work;
- commits illegal actions (inactions).
Official forgery (Article 292 of the Criminal Code of the Russian Federation)
The objective side of the crime consists in committing one of the following actions:
- entering deliberately false information into an official document;
- making corrections to an official document that distort its actual content.
Official forgery occurs only in the case when the introduction of knowingly false information and corrections into a document is related to the official functions of the guilty person, that is, it is carried out precisely in connection with the performance of his official duties.
These actions are committed for personal gain. Not only officials, but also other employees working in state or municipal organizations are held accountable for such a crime.
The corpus delicti of this crime is considered completed at the moment when direct forgery is carried out (formal corpus delicti).
Assignment of powers of an official
The objective side of the assignment of the powers of an official consists of two independent actions: the assignment of the powers of an official and the performance of certain actions in connection with this. Assignment of official powers is always accomplished fraudulently (a person verbally declares that he has official powers, uses uniform to perform the desired actions, presents a forged document). The person who usurps the powers of an official has no legal basis to exercise them. Conferring the title of specialist does not constitute the crime in question.
A person assigns authority to perform certain actions. They can be very different, but they are always illegal and are essentially offenses. It is as a result of such actions that socially dangerous consequences occur in the form of a significant violation of rights w
legitimate interests of citizens or organizations. Assigning authority to perform socially useful actions (for example, arresting a criminal) is not a crime.
A causal relationship must be established between these consequences and the assignment of powers to an official.
This composition is material. The crime is considered completed when the consequences specified in the law have occurred.
From the subjective side, this is an intentional crime. A person acts with direct or indirect intent.
The subjects of the crime are two categories of employees who have reached the age of 16: a) civil servants or b) employees of a local government body who are not classified as officials (see note 4 to Article 285). A civil servant is a citizen of the Russian Federation who, in accordance with the procedure established by federal law, performs the duties of a public position in the civil service for monetary compensation from the funds of the federal or corresponding constituent entity of the Russian Federation budget. An employee of a local government body is a citizen performing duties in a municipal position of a municipal service for a monetary remuneration from the local budget,
Negligence (Article 293 of the Criminal Code of the Russian Federation)
The objective side of the crime is the failure or improper performance by an official of his official duties.
The main condition for the existence of a crime is the existence of an objective opportunity to perform the specified actions.
Qualifying signs of a crime:
- causing damage on an especially large scale (exceeds 7 million 500 thousand rubles),
- caused by negligence the infliction of serious harm to health or death of a person.
Subject of malfeasance
The subjects of such crimes are officials, that is, employees vested with certain powers.
Within the framework of Chapter 30 of the Criminal Code of the Russian Federation, the following are recognized as officials:
- representatives of the authorities;
- employees with organizational and administrative powers;
- employees of administrative and economic structures.
The accused must work for a government agency, municipality, state or local government agency (such as social security, health care, or education), state-owned companies, or joint stock companies. This category also includes military personnel.
The main motives and reasons contributing to the commission of malfeasance are:
- The desire for illegal enrichment.
- Perception of public service as a source of improvement of one’s financial situation.
- Elimination of competitors.
Concept of an official
In accordance with Note 1 to Art. 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, as well as in the Armed Forces of the Russian Federation and other troops and military formations of the Russian Federation.
Based on this concept, we can distinguish the following three groups of characteristics that underlie the recognition of a person as an official:
1. The nature of the functions performed makes it possible to clearly outline the circle of persons recognized as officials and excludes a broad interpretation of the subject of this group of crimes.
The content of the function of a representative of the government, and consequently the nature of the actions of the representative of the government, are determined by the tasks facing the body that he represents. The activities of a government representative are based on relationships with an indefinitely wide range of persons who are not under his administrative subordination.
A person performing organizational and administrative functions manages the activities of an institution, organization, enterprise, department, etc. Performing such functions invariably involves managing people.
For administrative and economic functions, the sign of managing people is not required. The main thing is the control and disposal of material assets, the organization of their release, receipt, safekeeping, sale, etc.
For officials - subjects of the group of crimes under consideration - it is obligatory to commit, when performing the functions named in the law, actions that have legal significance, i.e. establishing, changing or terminating the rights and obligations of individuals and legal entities.
Other characteristics named in the law are not decisive.
2. The legal basis for vesting a person with the relevant functions is a law, charter, instruction, order or other regulatory legal act of appointment to a position, which sets out the rights and obligations of the person holding a specific position.
Persons who are not appointed to the relevant positions, but actually perform the functions of an official, in accordance with the note to Art. 285 may be recognized as officials if they perform organizational, administrative or administrative duties, as well as the functions of government representatives under special authority. Special authority is granted by the body, official, or work collective authorized to do so. Special authority is formalized by order, decision of the work collective, etc.
3. An independent feature is the affiliation (characteristic) of those bodies and institutions in which the official works. By law, these can be state bodies, local government bodies, state and municipal institutions, as well as the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation. Officials working in public associations of various orientations, commercial organizations (production and consumer cooperatives, foreign companies, business partnerships, etc.) are not included. They are liable under Art. 201-204 CC.
The named characteristics of an official are inherent in all four categories of employees who may be subjects of crimes provided for in Chapter. 30 CC.
The first category is persons who meet the criteria named in Note 1 to Art. 285. They may be subjects of crimes provided for in Parts 1 and 3 of Art. 285; Parts 1 and 3 Art. 286; Parts 1 and 3 Art. 287; Art. 289; Parts 1, 2 and 4 art. 290; Art. 292; Parts 1 and 2 Art. 293 of the Criminal Code.
The second category is persons holding government positions in the Russian Federation. In accordance with Note 2 to Art. 285 of the Criminal Code are persons holding positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies (President of the Russian Federation, Chairman of the Government of the Russian Federation, Chairmen of the chambers of the Federal Assembly of the Russian Federation, federal ministers, etc.). The list of government positions in the Russian Federation is contained in the Register of government positions of federal civil servants.
The third category is persons holding government positions in constituent entities of the Russian Federation. To them in accordance with Note 3 to Art. 285 includes persons holding positions established by the constitutions or charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies (presidents of republics, governors of territories, regions, deputies of legislative (representative) power, etc.).
Officials of the second and third categories may be subjects of crimes provided for in Parts 2 and 3 of Art. 285; Parts 2 and 3 Art. 286; Parts 2 and 3 Art. 287; Parts 3 and 4 art. 290 CC.
The fourth category is persons holding the position of head of local government (mayor, prefect). They are elected on the territory of the municipality and are given powers to resolve issues of local importance.
The head of a local government body may be the subject of crimes provided for in Parts 2 and 3 of Art. 285; Parts 2 and 3 Art. 286; Parts 3 and 4 art. 290 CC.
All categories of officials, except for special ones, must also have the general characteristics of the subject of a crime (sanity, age).
Perpetrators of crimes with a special subject are only persons who possess their characteristics. Other persons may also be organizers, instigators and accomplices.
Punishment for malfeasance
For committing this act, sanctions are provided in the form of:
- fines of various sizes;
- deprivation of the right to hold a position for a certain period/engage in a specific type of activity;
- forced labor;
- arrest;
- imprisonment.
The punishment is imposed taking into account:
- the public danger of the crime;
- personal motives of the official;
- the goals he pursued;
- the nature and severity of the harm caused;
- duration of the crime;
- characteristics of the defendant's personality.
