So what do we have:
Full admission of guilt of my client, accused of committing a crime under Part 5 of Art. 290 of the Criminal Code of the Russian Federation throughout the entire preliminary investigation, which lasted almost a year.
Full confession of two of his associates accused of mediation in receiving a bribe under paragraphs “a, b”, part 3 of Art. 291.1 of the Criminal Code of the Russian Federation, who, having repented of their deeds, sprinkled ashes on their heads, trying to score as many positive points as possible from the investigation and the court, raced to expose the bribe-taker.
Both expressed a desire to voluntarily participate in the continuation of the ORM “operational experiment” for the further transfer of funds to the final bribe recipient. One of the intermediaries, who was caught red-handed while receiving money from a bribe-giver, after communicating with law enforcement officers, happily did so.
Confrontations confirmed the testimony of all three accomplices among themselves. On top of everything else, the criminal case was the work of FSB officers, and “the authorities do not make mistakes.”
My future client added a new round of negative attitude towards himself in court and created a real commotion.
The following happened:
The judge was about to begin hearing the case on the merits, and a full corridor of witnesses had already been invited, when suddenly, unexpectedly for those around him, the defendant refused to admit guilt and declared his innocence and non-involvement in the crime.
Reinforcing his attitude towards the prosecution, he drew up documents with his own hand, spent half a day very confusingly setting out his arguments in petitions for his innocence, and for the remaining half day the judge had to go into the deliberation room to make a decision to reject the stated petitions.
Naturally, all the invited witnesses had to be dismissed, and the judicial investigation had to be postponed.
I understand the mood of the judge, who was preparing for the trial and studied the attitude of the entire “troika” to the charges, two of whom expressed a desire to consider the case in a special manner.
The judge was preparing to “dismiss” the judicial investigation formally, essentially no different from hearing the case in a special manner, but then suddenly an emergency situation arose.
According to court workers and defense attorneys for the accomplices, the trial was disrupted, again due to the “fault” of my client.
It is not difficult to guess what conclusions the Presiding Officer made for himself; from such a come back of my then future client, the verdict will be pronounced with a taste of revenge.
My client did not grasp such things, he had a clear conviction of his rightness and innocence, and for some reason, incomprehensible to him, the Chairman flushed this rightness down the toilet.
Realizing that in a criminal case, as the defendant himself sees, he cannot cope on his own, and the situation is going “in the wrong direction,” he began to look for a defense attorney.
That's how we met.
To be honest, when I found out that such friction had taken place in court, this situation made me feel completely uneasy. Nobody forgets about such things.
He had a lawyer in court, but his client decided to fight largely on his own. At that moment, my future client did not understand at all what consequences his initiative could have for him! And he was deeply convinced that he was doing everything correctly in accordance with the law.
The future client was very much and genuinely surprised by the reaction, which shocked all the participants in the criminal proceedings in court, asking me:
- “Why were they all stunned by my performance?
- “I didn’t rip anything off for them... I have the right... and for some reason the defenders of my accomplices stared at me with bulging eyes?”
Sometimes it seemed to me that he was being ironic, but he was sincere.
The simpler the question, the more complex the answer. During the year of house arrest, the principal mastered quite well the theoretical course of criminal procedure as an academic discipline, and if the law gives him such an opportunity, then he took advantage of his right.
The principal showed me the grounds for his innocence in a criminal case, trying to convince me, and being indignant at the same time, and also presented documents of his own content, which he personally presented in court.
That little thing, which the court would not perceive as a violation at all, was presented to them as an emergency. In his opinion, the court was obliged to either terminate the case or return it to the prosecutor, again, for termination.
Complaining to me that for weeks he had been poring over the documents day and night, compiled everything correctly in his opinion, explained it, and then, with a cavalry charge, the judge shredded his imperishable works into cabbage. I became scared for him; he was harming himself without realizing it, believing in his exclusive rightness. and infallibility. I thought so too, just like him, when I was still a law student. Over time, the axiom works - the more knowledge, the less confidence.
I feel the malicious smile of my colleagues. The court has long been obligated to no one and nothing, not even to itself.
The situation has already exploded!
The arrow of the amount of the punishment loomed towards its upper limit, and you won’t get parole until you pay a fine multiple of the size of the proposed bribe (800,000 rubles), which means we’ll easily miss parole if you have nothing to pay.
The more information he gave about the case, the gloomier my mood became. Catching this thoughtfulness, he asked: “And you will also advise me to give up?” There was clear disapproval in the voice.
At a lawyer's forum, I consulted with my colleagues about whether to take over the defense if the case was brought to a state of hopelessness. The overwhelming majority of respected elders of Pravoruba spoke in the spirit of: “You won’t be able to help him in any way, the “load” will be complete.
I completely agree with my colleagues, and I think so myself. And if something like this suddenly appears with similar introductory information, complicated by a “knowledgeable” principal, I’m no longer sure that I will agree to again act as a cleaner, to somehow rectify the situation.
Nothing will pay off the round-the-clock grueling work, wasted time, and health. More money will be spent on medicines than the fee received. This means working hard. All this happened.
Having warned that the situation is extremely serious, and no one is able to predict the consequences, he took up the defense. I accepted the position of the trustee, but where he was headed was no good; here it was important for me to correctly place the emphasis in defense.
On my first day of trial, before the hearing, the defense attorneys of the other defendants in this case pointed their fingers at our temples in our direction, demanding that my client “not be a fool and admit guilt,” since his position could affect the punishment of their clients.
And the judicial investigation began with the interrogation of the agent provocateur. The judge was already on edge, her negative emotions towards the client were visible, having managed to make several comments to him, she warned the latter that she would expel him from the courtroom for violating discipline. And the defenders were once again warned that the case was being heard under Part 5 of Art. 290 of the Criminal Code of the Russian Federation.
These were echoes of my client’s own defense, and an alarm for the defenders to bring him to his senses. “A good start,” I thought. That's how it all began.
How the plot unfolded
Construction! The developer, a state-owned enterprise - State Unitary Enterprise Construction Organization - "A", entered into a general construction contract with the general contractor - OJSC Construction. The general contractor - “B” has a subcontract agreement with the construction company. The subcontractor subcontracted the work again.
This is the pattern of relationships.
One evening, senior construction workers were sitting, drinking beer, and one of them had the idea to dial the phone number of the construction foreman and get money from him.
Why did they come up with such an idea? The construction foreman has been running around the entire construction site like crazy for two months now, with a wad of money in his pocket, trying to get someone to force the employee of State Unitary Enterprise - A (my client) to sign the certificates of completed construction work.
Well, they decided that they were drunk, since the foreman was offering money to everyone, why should it go to waste, otherwise others will take it. At night, the construction foreman arrived and handed over the money to the responsible employees of the general contractor, the construction company, naturally under the control of FSB representatives.
In cases of bribery, one of the primary issues is resolved; TO WHOM? and FOR WHAT?
An interesting dialogue took place on the record between the intermediary and the provocateur: The representative explained that this money would go to him personally. And that his representative will provide further construction contracts, and will also provide personal patronage for only 800,000 rubles in the form of an entrance ticket.
And not a word about construction documents, not a word about my client. The employee was clearly pulling the blanket over himself. After the employee was detained, the next day, already under control, the intermediary called my client to come to the construction site and at the construction site impose money on the representative of the developer of the state-owned enterprise SUE.
Practice of defense under Art. 290 of the Criminal Code of the Russian Federation
On April 25, I posted the publication Pravorub: Cancellation of the verdict in the Supreme Court.. In it, I announced a future publication based on the results of the consideration of the case in the cassation instance.
Finally, everything came together - I received the Resolution of the Presidium of the Belgorod Court, time appeared.
So. My client held a federal position - the head of the Federal Migration Service of the Voronezh Region. I met him when clouds began to gather around him - a case was opened under Part 6 of Art. 290 of the Criminal Code of the Russian Federation and he was interrogated.
It must be said that he was not a greedy bribe-taker, an inveterate corrupt official or anything like that. Rather, he is a man of the old school and old rules. And he got caught by accident - he ended up in someone else's operational police department - they listened to one and the other, but he said something and he got caught.
He was accused of receiving a bribe in the form of other property on an especially large scale. The donation was the difference in value between the car that my ward gave to the bribe-giver in a trade-in and the new car received in return.
According to investigators, the amount was 1,066,000 rubles. In return, he allegedly committed acts, facilitation of acts, and general patronage. But there were not enough facts of retaliatory actions or assistance in taking actions. And the procedure for determining the size of the “bribe” also raised many questions.
The very fact of illegally receiving a car to replace the old one was pointless to deny, because my client thought of drawing up a purchase and sale agreement for a new car in his name with the terms of 100% prepayment, without paying a penny, he handed over the old car without determining the price. Well, I've said enough on the phone. It was also impossible to completely deny the implementation of general patronage.
The investigation proceeded smoothly. What needed to be done was done.
The court had the task of reclassifying it to Part 5 of Art. 290 of the Criminal Code of the Russian Federation and exclude from the charges the allegations that my client committed actions and contributed to the commission of actions, leaving only general patronage. My client did not admit his guilt and did not admit it in all instances, including the Presidium.
I will not describe in detail what the actions consisted of, what the promotion of actions consisted of in the text, because it's all in the apps. Also in my complaints and explanations it is justified why actions and assistance in committing actions are not included in the charged crime.
The opposition to the defense in court from the Cheka employees was significant and tangible - important witnesses were always brought in and controlled by operational employees. They supervised them during the lunch break.
It was possible to fully interrogate one of the witnesses only with swearing (almost all the witnesses were from out of town). And of course, not a single argument of the defense under such circumstances was understood by the court. The court sentenced my client to 8 years in prison and a fine in the amount of 74,876,200 rubles.
Appeal - ... well, this is a separate topic - I prepared, wrote a speech. He began to speak, give reasons, and in response to me: “Could you make it shorter, in a nutshell.....”. The outcome of the review is predictable.
Although the cassation examined the case, it considered the complaint not subject to transfer for consideration.
Without particularly hoping, but nevertheless, having painstakingly written down and written down all my disagreements, I sent a complaint to the RF Armed Forces. And... 04/13/17 a decision was made to transfer it for consideration to the Presidium of the Belgorod Court. On May 11, the complaint was considered by the Presidium.
The speaker believed that it was only necessary to reduce the amount of the fine, but I believed and argued that it was necessary to return the case to the first instance, because the verdict was passed on unknown circumstances regarding the determination of the amount of the bribe; all the circumstances surrounding the commission of retaliatory actions and the facilitation of their commission were not investigated and assessed.
Apparently he passionately argued and argued for the partial inconsistency of the verdict. At first one person listened, then almost the entire Presidium. As a result, the court showed politeness: the guilt remained unchanged, and my client was applied under Art. 64 of the Criminal Code of the Russian Federation and reduced the punishment to 5 years. and a fine in the amount of 2,139,320 rubles, which in itself creates the opportunity to be released on parole in a year.
On the one hand, I understand that there is some positive result, but on the other hand, the court often considers cases not according to law, but according to concepts. It is clear that having reclassified the deed under Part 5 of Art. 290 of the Criminal Code of the Russian Federation (amount of about 900,000), excluding from the charge “committing actions and facilitating their commission,” the court, when imposing a punishment, would proceed from the minimum term of 7 years, and taking into account state awards, would give the same 5. But I also wanted legal purity and beauty and grace.
Position of the defense in court:
The defense position consisted of two main directions.
The first direction is that my principal is not subject to the provisions of Art. 290 of the Criminal Code of the Russian Federation, he could only be a fraudster, provided there was no provocation, but not a bribe-taker, this position is objectively confirmed by the collected evidence, which means in his actions we observe another less serious crime, provided for in Part 3 of Article 30 of Part 3 of Art. 159 of the Criminal Code of the Russian Federation - attempted fraud.
It’s a shame for the defense, which during the preliminary investigation did not pay attention to the essence of the civil law relations between construction organizations and did not trace the chain of rights and obligations under construction contracts.
Based on the analysis of data from civil law contracts, the State Unitary Enterprise and the construction company cannot in any way influence each other’s activities. These two organizations do not have any rights to each other and do not bear any obligations to each other.
The scope of authority is determined by the construction subcontract agreement concluded with, according to which, the acceptance of construction work is carried out by no one else, only.
Moreover, the construction subcontract agreement between these two organizations, by its legal nature, was a mixed agreement; this agreement contains rules governing the provision of services.
It provides paid services under a construction subcontract according to which it undertakes the preparation of initial permits and other construction documentation, and also undertakes the acceptance and delivery of construction work to the customer.
is obliged to pay 12% of the contract price for such a service. Documented confirmation, accepted work from, organized acceptance of construction work, services for acceptance of construction work were provided.
Question: What does my client in particular have to do with this? Answer: Nothing to do with it.
The principal did not have the authority to accept work from, he could accept, and therefore sign acts, with which there are contractual relations.
Additional grounds that my client is not a subject can be found in the appeal.
The second direction of defense is provocation.
All the materials of the ORM “operational experiment” and the criminal case were riddled with provocation, to the point of being ridiculous, in the ORM there is an intelligence report called “Explanation”, where the agent provocateur, who was also a witness, complained to FSB officers that he was offering two million rubles, but they don’t take money...
The power of attorney from the agent provocateur to represent him in law enforcement agencies was issued a week earlier than the alleged “intention” of my client to receive a bribe.
In addition, there was verbal evidence in the case: the testimony of three witnesses about the actions of the agent provocateur, confirmed in the transcripts of the negotiations, the agent’s request, no matter through whom, to attach the money. The agent had a conflict with one of the witnesses on this basis, because he did not like that the agent was dragging him into his dirty machinations.
The witness-provocateur in court presented at least three versions of what happened, openly lied and dodged, “nullified” what he said, got confused, “nullified” again. In the end, he was completely confused, he got the time and place of receiving the marked money mixed up, and it turned out that the money was all real, not candy wrappers, and he got the time of arrival at the construction site to meet with the intermediary mixed up, insisted that the construction work certificates for his company had not been signed, although it was documented, that all the documents were signed a long time ago.
More than a month before the implementation of the operational investigation, he allegedly recorded his provocative conversation on his mobile phone, which he gave to law enforcement officers, and they downloaded the recording of the conversations onto a CD, naturally the agent threw away the phone as unnecessary, and for some reason the CD is used as evidence in the case, which the agent gave to law enforcement officers.
Over time, the issuance of the CD was also confused; it was issued by the agent on April 19, 2021, and some of the documents included another date, April 14, 2021, so this incorrect date ended up in the verdict.
Later, in the PSZ, the testimony of the provocateur’s witness was “combed” into the form that he gave it during the preliminary investigation. No one announced the disclosure of evidence during the preliminary investigation: it was unprofitable for the defense, and the state prosecution was impressed by the unexpected turns of the witness.
The defense asked the witness agent at least a hundred questions alone. Not a single defense question to all the witnesses in the case was recorded in the PSZ.
What’s upsetting is that I filed a number of motions regarding the inadmissibility of evidence obtained in gross violations of the law; my fellow defense attorneys sided with the prosecution and asked that they be denied without explanation.
Moreover, I submitted these petitions in the interests of their own principals. Only on the second attempt did the court allow the testimony of the required witness to be read out. “Colleagues” unanimously refused to publish my client’s explanation (his explanations without a lawyer were more sane), citing the fact that this was not a procedural document. I don’t think they didn’t know the theory of asymmetry of evidence; they systematically passed the game.
It was necessary to make a roundabout maneuver during the interrogation of the client, asking him to tell about the content of his explanations, which he gave without a lawyer. On my part, this was an attempt to disavow the testimony of my client given during the preliminary investigation, in which he admitted his guilt.
The need was to compare the contents of the initial documents before the initiation of the criminal case and the documents in which the so-called defense attorney participated; if such a “drunken party” has already begun, and his confession is read out, then we study everything.
The case was heard at this pace for two months. The judge took a week to schedule the sentence. After its announcement, I took two weeks off.
The defendant is not to blame if the lawyer makes a mistake. The presiding judge de facto figured out such things that my client accepted the erroneous position of his defense attorney.
A very interesting phrase on page 43 of the verdict, how the court justified the absence of a violation of the right to defense: The court does not see a violation of xxxxx’s right to defense, since qualified assistance in the person of professional lawyers was provided at the appropriate stage of the criminal process.
I appreciate the judge’s subtle sense of humor; in other words, it is confirmed that during the preliminary investigation the court found a violation of the right to defense.
My numerous requests were denied because the court considered the violations of the criminal procedure law to be insignificant. But still, he admitted the violations. The gross violations of the Code of Criminal Procedure and the Law of the Russian Federation “On Operational Investigations” were corrected by the court, by testifying, summoned as a witness, and also as part-time savior of the prosecution, the lieutenant colonel of the FSB responsible for operational investigations.
The presiding officer completely dealt with the matter and understood everything. I really hoped for retraining, since I managed to “break the case down into cogs”, to present the situation in a cogent manner differently from what the prosecution presented, which crumpled up all the evidence.
The result of the case in the court of first instance is that my client did not admit his guilt: his qualifications remained the same - Part 5 of Art. 290 of the Criminal Code of the Russian Federation - the sentence is determined by the lower limit of the sanction - 7 years in a maximum security colony, without a fine.
Commentary to Art. 290 of the Criminal Code of the Russian Federation
The object of the crime is the activity of the public apparatus of power and administration carried out in accordance with the law.
The subject of receiving a bribe is money, securities, other property, including those withdrawn from circulation or restricted in circulation (narcotic drugs, psychotropic substances, weapons, ammunition, etc.), various services (benefits) of a property nature, subject to payment, but provided to the bribe taker free of charge or at a clearly reduced cost (providing tourist vouchers, renovating an apartment, building a summer house, understating the value of the transferred property, reducing rental payments, interest rates for using a bank loan, etc.). Intangible services that do not entail property benefits for the bribe recipient (for example, providing the opportunity to purchase a rare product or service, issuing a positive review of work) are not the subject of receiving a bribe.
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See: paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery.”
The objective side of the crime is expressed in the receipt by an official personally or through an intermediary of the subject of a bribe. Part 1 art. 290 of the Criminal Code of the Russian Federation indicates the following options for the behavior of an official for which he receives a bribe: 1) commission of actions (inactions) in favor of the bribe-giver or persons represented by him, which are included in the official powers of the official; 2) the commission of actions (inactions) in favor of the bribe-giver or persons represented by him, which are not included in the official powers of the official, but he, by virtue of his official position, can facilitate their commission by another official; 3) general patronage of the service; 4) general connivance in the service.
Actions (inactions) included in the official powers of an official should be understood as those actions that he is authorized or obliged to perform in accordance with the official powers assigned to him (clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery”). These are legal actions of a person that do not go beyond the scope of his official competence, which become criminal precisely because they are committed for a bribe.
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Bulletin of the Supreme Court of the Russian Federation. 2000. N 4. P. 7.
It should be noted that receiving remuneration for activities not related to the performance of official duties cannot be considered a bribe. In addition, the sentence must describe specific actions related to the official powers of the official.
An official can receive a bribe not only for the commission of certain actions within the scope of his official duties, but also for the behavior of other officials that is beneficial for the bribe recipient, which he can facilitate by virtue of his official position. The Plenum of the Supreme Court of the Russian Federation in paragraph 4 of Resolution No. 6 of February 10, 2000 “On judicial practice in cases of bribery and commercial bribery” explained that an official position that facilitates the commission of certain actions in favor of the bribe-giver by other officials should be , in particular, to understand the significance and authority of the position held, the subordination of other officials in relation to whom the bribe-taker is in charge.
At the same time, the use by an official of only personal connections and relationships, if they are not related to the position held, cannot be considered as use of official position.
General patronage in the service presupposes the unreasonable creation of various favorable conditions for the bribe-giver or the persons represented by him. Paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6 “On judicial practice in cases of bribery and commercial bribery” gives a restrictive interpretation of patronage in service and speaks of creating favorable conditions only for persons subordinate in service: their undeserved encouragement , extraordinary unjustified promotion, commission of other actions not caused by official necessity. At the same time, protection may also be provided to other persons not subordinate to the bribe-taker. Thus, an official receiving money from an entrepreneur in order to avoid liability in the future for possible violations of tax laws should be regarded as receiving a bribe for general patronage in the service. General connivance in paragraph 4 of the said Resolution of the Plenum of the Supreme Court of the Russian Federation is considered as an official’s failure to take measures for omissions or violations in the official activities of the bribe-giver or persons represented by him, or failure to respond to his unlawful actions. Here, too, it seems more correct to extend such behavior of the bribe-taker to persons who are not under his official subordination.
In paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6, attention is drawn to the fact that the time of transfer of the subject of the bribe (before or after the commission of an action (inaction) in the interests of the bribe-giver or the persons represented by him) does not affect the qualification of the act. Thus, two types of bribery can be distinguished: bribe-bribery and bribe-gratitude. In the first case, the transfer of the subject of the bribe determines the behavior of the official required by the bribe giver and is a necessary condition for him to perform certain actions (inaction). In this case, there is a preliminary agreement between the bribe giver and the bribe recipient to transfer the subject of the bribe (before or after the commission of actions (inaction)).
A thank-you bribe occurs when the subject of the bribe is transferred for an action or inaction (legal or illegal) already committed by an official in the absence of a prior agreement. At the same time, it is necessary to distinguish a bribe of gratitude from the so-called ordinary gift. Yes, Art. 575 of the Civil Code of the Russian Federation allows the giving of ordinary gifts to state (municipal) employees, the value of which does not exceed five minimum wages established by law. However, it should be taken into account that this provision of the Civil Code of the Russian Federation is not applicable to criminal law. Article 575 of the Civil Code of the Russian Federation speaks of a gift agreement, which excludes a reciprocal transfer of a thing or right or a reciprocal obligation on the part of the person accepting the gift. Thus, if the act committed by a person contains the elements of receiving a bribe (whether it is a bribe-bribery or a bribe-reward), criminal liability arises regardless of the amount of remuneration received.
The subject of a bribe can be received either by the official himself (personally or through an intermediary), or provided to the official’s relatives and friends with his consent or if he did not object to this and used his official powers in favor of the bribe giver.
The actions of an intermediary in receiving or giving a bribe should be qualified as complicity in receiving or giving a bribe, depending on whose interests (the official or the bribe-giver) the intermediary is acting in.
The elements of accepting a bribe are formal. In accordance with Part 1 of Art. 290 of the Criminal Code of the Russian Federation, from an objective point of view, a crime can be committed only by an official receiving the subject of a bribe personally or through an intermediary. If in an act aimed at obtaining a bribe, there is primarily no moment of delivery or transfer of the subject of the bribe, this means that the official has not yet begun to carry out the objective side of this crime. Consequently, such actions cannot be assessed as an attempt to take a bribe, since the attempt, as a general rule, is interrupted only in the process of executing the crime until the end of the crime. Under certain conditions, actions aimed at obtaining a bribe can be qualified as preparation for this crime, which can be interrupted before the execution of its objective side begins.
The crime is completed from the moment the official accepts at least part of the transferred values. In the case when the money that is the subject of a bribe is transferred to the account of an official, the receipt of the bribe should be considered completed from the moment it is received in the appropriate account.
If the subject of receiving a bribe is any service or benefit of a property nature, then the crime is considered completed from the moment the bribe-taker began to use such a service or benefit of a property nature, or from the moment he received the relevant documents for the service or benefit (for example, a tourist voucher, ticket for a concert, a document on forgiveness of a monetary debt, etc.). At the same time, the actions (inaction) themselves performed by a person in favor of the bribe-giver are not included in the objective side, therefore, for the recognition of this composition as completed, it does not matter whether the action (inaction) agreed upon by the parties was actually performed or not. A bribe-taker who has committed, in the interests of the bribe-giver or persons represented by him, illegal actions that constitute another crime, is subject to liability for aggregation of crimes under Part 2 of Art. 290 and the corresponding article of the Criminal Code of the Russian Federation (for example, illegal exemption from criminal liability, falsification of evidence, official forgery, etc.).
If the conditional transfer of valuables does not take place due to circumstances beyond the control of the bribe giver and bribe recipient, the act should be classified as an attempt to receive a bribe. An attempt, for example, should be considered the acceptance by an official of the subject of a bribe in the process of conducting an operational-search activity to expose it; failed extortion of a bribe (clause “c” of Part 4 of Article 290 of the Criminal Code of the Russian Federation); acceptance of imitation cash. At the same time, the mere intention expressed by a person to receive a bribe cannot be qualified as an attempt to take a bribe, if no specific actions were taken to implement it.
It should be borne in mind that the acceptance of the subject of a bribe by an intermediary for its subsequent transfer to an official does not yet form a complete corpus delicti for receiving a bribe, and in the event of the arrest of an intermediary who did not have time to transfer the bribe to an official, it is qualified as an attempt to receive a bribe under Part 3 of Art. 30 and the corresponding part of Art. 290 of the Criminal Code of the Russian Federation. Since the actions of the intermediary constitute complicity in receiving a bribe in the form of complicity, they are qualified under Part 5 of Art. 33 and the corresponding part of Art. 290 of the Criminal Code of the Russian Federation.
The subjective side of the crime is characterized by guilt in the form of direct intent. The person realizes that he is receiving illegal remuneration for performing certain actions (inactions) in favor of the bribe-giver or persons represented by him, for facilitating their commission by other persons, or for general patronage or connivance in the service, and wishes to receive this remuneration.
The intent of the bribe-taker must include the awareness that the subject of the bribe is transferred for the performance or non-performance in the interests of the giver of certain actions related to the use of his official powers. Therefore, the receipt by an official of material assets allegedly for committing an action (inaction), which he cannot carry out due to lack of official authority or the inability to use his official position, should be qualified, if there is intent to acquire these assets, as fraud under Art. 159 of the Criminal Code of the Russian Federation (clause 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of February 10, 2000 No. 6). The owner of valuables in such cases is liable for attempted bribery (Part 3 of Article 30 and Article 291 of the Criminal Code of the Russian Federation), if the transfer of valuables was aimed at carrying out the desired action (inaction) by an official.
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Bulletin of the Supreme Court of the Russian Federation. 2000. N 4. P. 9.
In cases where a person receives money or other valuables from someone, allegedly for transfer to an official as a bribe, and, without intending to do so, appropriates them, what he has done should be qualified as fraud. The actions of the owner of valuables in such cases are subject to qualification as an attempt to give a bribe. It does not matter whether the specific official to whom the bribe was supposed to be transferred was named.
If an official, using his official position, in order to obtain material assets, misleads the transferor of such assets regarding the legality of their transfer, declaring, for example, the need to pay a fine or penalties, state duty, the act also does not constitute a bribe and is qualified as fraud committed by a person using his official position (Part 3 of Article 159 of the Criminal Code of the Russian Federation).
The motive for accepting a bribe is self-interest. Therefore, if an official accepts illegal remuneration with the aim of converting it in favor of the state (municipal) body or institution in which he works, or spending it on any public or state needs, there is no corpus delicti of this crime. Thus, the Presidium of the Supreme Court of the Russian Federation reclassified the actions of a person from Art. 290 at station 285 of the Criminal Code of the Russian Federation and indicated that within the meaning of Art. 290 of the Criminal Code of the Russian Federation, the actions of an official should be qualified as receiving a bribe if a property benefit was provided to him or his relatives, if he did not object to this. From the court’s verdict it is clear that the official used the received property not for personal purposes, but for the improvement of his office, which is covered by the disposition of Art. 285 of the Criminal Code of the Russian Federation.
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Bulletin of the Supreme Court of the Russian Federation. 2004. N 5. P. 27.
The subject of the crime is a special one - an official.
Part 2 Art. 290 of the Criminal Code of the Russian Federation contains a qualified crime - receipt by an official of a bribe for illegal actions (inaction). Illegal actions mean unlawful actions that did not arise from the official powers of an official or were committed contrary to the interests of the service, as well as actions containing signs of a crime or other offense.
Part 3 Art. 290 of the Criminal Code of the Russian Federation provides for stricter liability for an act provided for in Part 1 or Part 2 of Art. 290 of the Criminal Code of the Russian Federation, 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.
A particularly qualified crime (Part 4 of Article 290 of the Criminal Code of the Russian Federation) is receiving a bribe:
— paragraph “a”: by a group of persons by prior conspiracy (Part 2 of Article 35 of the Criminal Code of the Russian Federation) or by an organized group (Part 3 of Article 35 of the Criminal Code of the Russian Federation).
A group of persons by prior conspiracy will occur only if two or more officials took part in the crime, who agreed in advance to jointly commit a crime using their official position. It does not matter what amount each official received.
In accordance with Part 3 of Art. 35 of the Criminal Code of the Russian Federation, an organized group is characterized by stability, a higher degree of organization, distribution of roles, and the presence of an organizer and leader. Based on this, an organized group may include persons who are not officials who have previously united to commit one or more crimes. If there are grounds for this, they are liable in accordance with Part 4 of Art. 34 of the Criminal Code of the Russian Federation as organizers, instigators or accomplices, i.e. with reference to Art. 33 of the Criminal Code of the Russian Federation.
In both cases of group receipt of a bribe, the crime is considered completed from the moment the bribe (or part thereof) is accepted by at least one of the officials;
— point “c”: with extortion of a bribe. Extortion of a bribe is a demand by an official to give a bribe under the threat of committing actions that may cause damage to the legitimate interests of a citizen (for example, under the threat of illegal prosecution) or putting him in such conditions under which he is forced to give a bribe in order to prevent harmful consequences for his legally protected interests (for example, illegal delay by an official in the process of issuing a license). If the briber is interested in the unlawful behavior of an official, seeks to circumvent the law, the established procedure for resolving a particular issue, achieve satisfaction of his illegal interests, evade deserved responsibility, etc., extortion as a qualifying sign of receiving a bribe is absent. A threat on the part of the bribe-taker to perform legal actions against the bribe-giver, although affecting his interests, cannot be considered as extortion. Thus, it is not an extortion of a bribe if a tax official demands that he transfer money under the threat of imposing a fine on an organization that is late in paying taxes;
- paragraph “d”: in a large amount (according to the note to Article 290 of the Criminal Code of the Russian Federation, a large amount is the amount of the subject of a bribe exceeding one hundred and fifty thousand rubles).
Appeal against a court verdict
When announcing the verdict, the judge practically encrypted the judicial investigation in which she participated.
When drafting the appeal, I had to work not as a defense attorney, but as a decipherer of the verdict.
I was painfully searching for a form for submitting arguments in an appeal. And I came to the following thoughts: if you describe all the violations, the complaint will become ponderous and unreadable.
At one time, a very long time ago, when in a very complex economic case, my opponent was the Great Lawyer Yuri Artemyevich Kostanov, he then still wrote a cassation appeal briefly (only six sheets), of course, without references to the Court of Justice, relying only on the case materials, passed the verdict in the Moscow City Court in one sitting.
I decided to draw up an appeal in the style of lawyer Yu.A. Kostanov. having examined only the evidence in the case and compared it in the verdict.
I composed it from two directions as follows:
About non-subject, violation of substantive law and about provocation. Moreover, the arguments about provocation stimulate the decision to reclassify to a less serious crime.
