Mediation in bribery: features, types of punishment

In 2021, many measures were taken to combat and eliminate corruption in the country. It is worth noting that one of the most common forms of corruption is bribery, which many residents of the Russian Federation face.

The scale of corruption is truly terrifying, and what’s most unpleasant is that bribery was revealed in many government areas during various audits. We can conclude that corruption threatens the well-being of not only individual citizens, but also the entire state.

Mediation in bribery

Mediation

Until 2011, the Criminal Code considered mediation in giving a bribe as complicity in such an impermissible process. Today, the act of mediation has been separated into a separate article, which states that the offender in this case helps the culprit to commit a crime.

Important! According to the law, namely Article 291.1 of the Criminal Code of the Russian Federation, mediation is the voluntary transfer of a bribe at the request of the bribe giver or bribe recipient, as well as other acts necessary to reach an agreement between these two persons.

Thus, the intermediary represents the interests not only of the one who expects to receive a monetary reward, but also of the one who transfers this reward. As for how mediation can take place, judicial practice identifies several methods.

1. Direct or direct transfer of money. Also, instead of money, another bribe item can be used.
2. Verbal assistance, when the intermediary promises to give a bribe to the specified person. In this case, such assistance increases confidence that the crime will be committed.
3. Giving recommendations on who can give the bribe to.
4. Organizing a meeting between two persons to commit the act of transferring a bribe.
5. Clarification of the type of bribe and size, as well as agreement on these points.
6. Negotiating for the subsequent act of transferring a bribe.
7. Removing obstacles.
8. Searching for the necessary person to transfer or receive a bribe.

Excerpt from Article 291.1 of the Criminal Code of the Russian Federation

There are several characteristics inherent in an intermediary, but the main one among them is assistance to the bribe giver or bribe recipient to successfully complete the bribe transfer procedure.

Important! It should be noted that often the relatives and friends of the bribe taker or bribe giver act as intermediaries. And even though they might not know that the transferred item is a bribe, in any case they belong to the group of intermediaries.

It is also worth noting that in the case of the transfer of small amounts, both parties do not resort to the use of an accomplice. Basically, intermediaries are necessary when it comes to fairly large bribes. Therefore, the laws of the Russian Federation specify that the minimum amount of transferred amount at which a person will be considered an intermediary is 25,000 rubles. It is this amount of monetary reward, as well as amounts that significantly exceed the specified amount, that will become the basis for bringing the intermediary to criminal liability.

As a rule, intermediaries appear when it comes to a large bribe

Complex issues of qualification of mediation in bribery

October 20, 2021 4:25 pm

Lawyers were told about the types of mediation in bribery, the end point of physical and intellectual mediation, the need to distinguish between professional and official activities when qualifying bribery

On October 20, during the regular educational webinar of the FPA RF, Doctor of Law, Professor of the Department of Criminal Law and Criminology, Faculty of Law, Moscow State University, gave a lecture “Qualification of mediation in bribery.” M.V. Lomonosov, member of the NCC at the Supreme Court of the Russian Federation, editor-in-chief of the magazine “Criminal Law” Pavel Yani.

At the beginning of his speech, the speaker recalled the introduction several years ago of criminal liability under Art. 291.1 of the Criminal Code of the Russian Federation for mediation in bribery. The professor noted that in the Criminal Code of the RSFSR of 1960, responsibility for a similar crime was formulated, but more generally. In the 1960s The Plenum of the Supreme Court of the USSR gave an explanation that made it possible to classify both physical and intellectual as mediation, i.e. everything that is currently specified in the current criminal law.

According to Pavel Yani, as a result of this clarification, disputes between practitioners and theorists led doctrine and law enforcement to a dead end. In a number of cases, it became impossible to distinguish between mediation and complicity in giving and receiving a bribe. In this regard, in a resolution of 1977, the Plenum of the USSR Supreme Court abandoned this idea and classified mediation exclusively as the transfer of values ​​from the giver to the recipient, i.e. physical mediation, while all other assistance, facilitating these persons to implement the corruption agreement, the Plenum regarded and demanded that the courts regard it as complicity in giving or receiving a bribe.

Giving and receiving a bribe, according to the expert, form one composition, only legally and technically divided into several articles. Pavel Yani cited the opinion of the outstanding Soviet scientist B.V. Volzhenkin, who believed that giving and receiving bribes and mediation are crimes committed in the so-called necessary complicity.

The professor listed examples of qualifications for complicity in bribery. For example, 15 students each gave a bribe of 2 thousand rubles to the teacher for successfully passing the exam. For each of the students, his bribe formed one independent crime, while for the teacher - 15 independent episodes of receiving bribes.

Then the lecturer dwelled in detail on the explanations contained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 24, 2021 No. 59 “On amendments to the resolutions of the Plenum of the Supreme Court of the Russian Federation dated July 9, 2013 No. 24 “On judicial practice in cases of bribery and other corruption crimes" and dated October 16, 2009 No. 19 "On judicial practice in cases of abuse of power and exceeding official powers" (hereinafter referred to as Resolution No. 59). Thus, clause 13.2 of Resolution No. 59, mediation in bribery recognizes not only the direct transfer on behalf of the bribe giver or bribe recipient, as well as on behalf of the person transferring or receiving the subject of commercial bribery, money and other valuables, but also other assistance in achieving or implementing an agreement between by these persons about receiving and giving a bribe or the subject of commercial bribery (for example, organizing their meeting, negotiating with them). Thus, Pavel Yani noted, intellectual mediation in the form of organizing meetings and negotiations is considered completed regardless of the achievement or implementation of an agreement, even if the mediator failed to achieve an agreement between the parties.

The expert also focused the attention of lawyers on the need to separate official and professional activities when qualifying bribery. He gave the following example: if a doctor receives a reward for examining a patient and prescribing treatment for him, then tells the deputy chief physician about the reward received, and the chief physician, in turn, contacts law enforcement agencies, then this reward cannot be qualified as a bribe. The doctor used his professional knowledge. If a doctor were to certify with his signature the medical history issued in a given institution, and this certificate of temporary incapacity for work would give the person certain rights, then the doctor would act as an official and would commit official forgery.

Please note that the broadcast will be available today until 24.00. The replay will take place on Saturday, October 24th.

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Corpus delicti

The object is the normal functioning of public service bodies. The objective side is the process of transferring the subject of a bribe by an intermediary.

At the same time, it is necessary to pay attention to the fact that if the bribe-giver decides not to accept the subject of the bribe, then the act of the one who transfers the subject is regarded as an attempt on possible mediation. The act of the bribe giver in this case becomes an attempt to give a monetary reward or another type of bribe.

The subject of a crime is any legally capable person aged 16 years or older. If a small child under 16 years of age acts as an intermediary, then he cannot be held criminally liable.

If the mediator is a child, he will not be held accountable

Direct intent in law is called the subjective side of this offense. In other words, if the intermediary understands what the item was entrusted to him and to whom it needs to be transferred, and also expects a reward for his action.

Important! If the intermediary had no idea what he needed to transfer and what the subject of the transfer meant, he can avoid criminal liability.

Among the motives that can motivate an intermediary are:

• desire to gain material benefit;
• strengthening relationships;
• the desire to benefit by pleasing another person;
• service dependence.

If the intermediary had no idea what the item being transferred was, he can avoid liability

Also, when considering the elements of a crime, it is worth paying attention to the moment of its completion or the finish line. Often, crimes that are of a property nature are considered completed when the fact of causing damage is recognized. However, in the case of transfer of a bribe by an intermediary, the legislation made an exception. The crime for the intermediary is considered completed when he agrees to take part in such an adventure.

Important! It is this moment that serves as the basis for bringing a potential intermediary to criminal liability.

Composition of the crime of mediation in bribery

Please note:
Unlike a bribe, where the object of the crime is state interests and violation of laws, in the case of commercial bribery the object will be the commercial interests of the organization and the violation of these interests.

The subject of the crime must be 16 years old on the day of the commission of the illegal act. If a child under this age acts as an intermediary, he cannot be prosecuted under Article 291.1.

The subjective side of an unlawful act presupposes direct intent, that is, the criminal must be aware of the nature of his actions and understand that his help is aimed at facilitating bribery.

From the objective side, the crime may vary slightly depending on the specific part of Article 291.1. So, according to Part 1 of Article 291.1, mediation, expressed specifically in the transfer of money (or other item) from the briber to the recipient, or any other assistance in bribery, is punishable.

In order for a person to be brought to criminal liability for complicity in bribery, the main condition must be met - the subject of the bribe must be more than 25 thousand rubles.

For this crime, Part 1 of the sanction provides:

1. A fine of up to 700,000 rubles or up to 40 times the amount of the bribe with deprivation of the opportunity to engage in certain work for three years;
2. Imprisonment up to 4 years with a fine.

Part 2 suggests two alternative options for the objective side:

1. The mediator acts using his official position;
2. The bribe is given for the commission of illegal actions, which is obvious to the accomplice.

The punishment for such actions will be:

1. Fine up to a million rubles or 50 times the amount of the bribe + inability to engage in specific work for 3 years;
2. Imprisonment from 3 to 7 years + fine + deprivation of the opportunity to engage in specific work.

Provocation of a bribe is charged to the perpetrator only if the official did not in any way induce him to bribe. Read more about attempted bribery of an official here https://lexconsult.online/7515-ponyatie-osobennosti-otvetstvennost-za-provokatsiyu-vzyatki

Part 3 of Article 291.1 provides punishment for mediation that was carried out by 2 or more people or the bribe amounted to more than 150,000 rubles:

1. A fine of one to two million rubles or up to the amount of the bribe multiplied by 70, with deprivation of the opportunity to engage in specific work;
2. Prison term from 5 to 10 years + fine + deprivation of the opportunity to engage in specific work.

Under Part 4, the punishment is imposed for mediation in bribery, if the total amount of the bribe is more than one million rubles:

1. Fine from one and a half to three million or the amount of the bribe multiplied by 80 + inability to engage in specific work;
2. Prison term from 7 to 12 years + fine + deprivation of the opportunity to engage in specific work.

A person who has promised or offered to assist in the transfer of a bribe is punishable under Part 5 of Article 291.1:

1. Fine up to three million or up to 60 times the size of the bribe + deprivation of the right to engage in certain work;
2. Imprisonment for up to 7 years + fine + deprivation of the right to engage in specific work.

Signs qualifying a crime

The Criminal Code considers several signs that have a certain qualifying meaning.

1. Group crime. It is usually organized by a group of criminals united by conspiracy or agreement. It is worth noting that the agreement on the transfer of a bribe in this case must take place in advance, before all members of the group perform the corresponding roles.
2. Repeated mediation. This means that the trusted person more than once transfers or receives funds, facilitating the commission of a crime.
3. Extortion. This classification implies the commission of a crime by setting certain conditions.

The mediator is the person who even just agreed to take part in such an adventure

Punishment

The Criminal Code of the Russian Federation provides not only for liability to the criminal, but also for a certain punishment for the crime he has committed, namely, mediation. There are five penalties for intermediary bribery.

As a rule, the intermediary in bribery will have to pay a fine, and sometimes he will be imprisoned

Important! In any of the above cases, the degree of responsibility for the crime committed is quite serious. And the intermediary should think several times before agreeing to commit a crime.

The concept of mediation in bribery

Mediation involves providing any assistance in transferring or accepting a bribe. Despite the fact that the Criminal Code contains articles relating to receiving and giving bribes, the legislator has included mediation in a separate article, since in this case the offender contributes to the commission of both the first and second crimes.

Mediation in a bribe can be expressed as follows:

• Transfer of money (or other bribe item) directly to the bribe recipient from the second party.
• A promise to transfer property to the bribe-taker. This type of mediation provides only verbal assistance, but increases confidence in both parties in the possibility of committing a crime.
• An offer to pay a bribe. Same with the previous point.
• Any other form of intermediation that somehow facilitates the movement of money from the bribe giver to the bribe taker (giving advice, eliminating difficulties in transferring a bribe, etc.).

Areas of corruption

Among the most popular areas for corruption to flourish today are:

• state procurements;
• law enforcement agencies;
• healthcare;
• education.

But don't think that these areas are the only ones where bribery occurs.

Important! Those who give and receive bribes can be found almost everywhere, but most of them are in the areas listed above.

Corruption is possible in different areas of life

In what cases is there an exemption from liability?

The law also stipulates situations when criminal liability is removed from a citizen. In fact, there are not many of them, and the accused must have significant arguments to refute his guilt.

So, for example, if at least one of the actions listed below is performed, the citizen will be able to avoid liability.

1. The citizen independently confesses his act to law enforcement agencies, and also clarifies the fact that the participants in the crime demanded that he commit an illegal act.
2. A citizen who extorts a bribe is an official.

There are also factors that do not allow you to evade responsibility. These factors include:

• reasons and motives that prompted a citizen to report the organization of a crime to law enforcement agencies;
• time from the moment of commission of the crime, namely the transfer of a bribe.

Sometimes punishment can be avoided

Important! Mediation is considered one of the most common, and therefore the most dangerous, crimes. It poses a danger not only to the individual, but to the public.

The actions of an intermediary can lead to the commission of a crime, which will entail undermining the foundations of state power, as well as its authority in the eyes of the entire population.

Who can be exempt from liability?

An intermediary in bribery may be legally exempt from liability if the following conditions are met:

1. Voluntarily told the competent authority about the crime he committed;
2. Actively assisted in the investigation of the criminal case (he spoke in detail about all the known circumstances of the case, participated in the necessary investigative actions, etc.).

In this case, the confession must be made before the authorities learned about the fact of giving a bribe to an official.

Mediation Qualification

The objective side of mediation is the facilitation of bribery and is expressed in the transmission of a message to the perpetrators of their consent to commit this type of crime.

If we consider bribery from the subjective side, then in this case we are talking about guilt in the form of direct intent. In other words, the perpetrator must realize what exactly he is doing. So, for example, when accepting or transmitting a bribe, an intermediary is aware of what kind of object he is holding in his hands and what crime is being committed at the moment. If a trusted person commits an act of mediation, but does not suspect it and does not know that there is a bribe in his hands, he can avoid responsibility, and his actions will not be qualified by an article of the Criminal Code.

A person is guilty if he realizes what he is doing

There can be many motives for mediation. Among them, the most common are friendly interests, self-interest, the desire to please superiors and climb higher on the career ladder.

Important! There are other motives, but none of them affects the qualification of the crime.

Also, the qualification of the crime will not be influenced by the fact whether the perpetrator had or did not have a real intention to commit an illegal act. To determine the presence of direct intent, it will be enough for the perpetrator to be aware of the fact of his promise or offer to transfer a bribe to the bribe giver or bribe recipient. It is worth noting that the false or real intentions of a person to provide assistance as an intermediary lie beyond the scope of direct intent and therefore do not exclude the possibility of receiving punishment for the crime committed, which is regulated by law as “imaginary mediation”.

There are many motives for mediation

However, it is worth noting that the legislative approach to determining punishment for the guilt of an intermediary violates one of the principles of criminal law - the equality of citizens before the law.

Important! In other words, it was already noted earlier that a more severe penalty is provided for the promise or offer of mediation, but not for its execution.

Thus, a false intermediary who has committed a crime in the form of an unfulfilled promise of mediation, as well as theft of someone else’s property, will suffer a less severe punishment compared to one who falsely promised to fulfill the terms of the deal, but never took possession of the subject of the bribe.

The emerging imbalance in the Criminal Code can be eliminated by lowering the maximum fine for the fact that an intermediary has promised or offered his services in committing a crime. In most cases, it is proposed to reduce the punishment to one year in prison. And then only if such an attempt to commit the transfer of a bribe will be used as a fraudulent method of stealing property that does not belong to the intermediary. Others also propose a solution - to exclude from the Criminal Code the independent nature of the promise or offer of such in mediation.

When considering a case, the fact that all citizens are equal before the law must be taken into account.

Important! However, the authorities do not take such a step, arguing that such a severe punishment is intended as a good example for those who decide to become an intermediary and offer their services to commit a crime.

Most common questions

Question: to what category should the persons who acted as intermediaries be classified, but the amount transferred by them was less than 25 thousand rubles?

Answer: the Criminal Code of the Russian Federation provides that if the bribe does not reach the amount of 25 thousand rubles, the culprit avoids criminal liability, since it is not provided for by law. Thus, if the amount of the bribe was lower than the amount presented in the Criminal Code of the Russian Federation, the actions of persons in this case are considered decriminalized.

D. Garbatovich believes that the existing criminal law norm is special in relation to other norms of responsibility, among which is the direct transfer of a bribe. And if there is a fact of competition between general and special norms for punishing the offender, a special one will be chosen. In other words, if a citizen was caught as an intermediary at the time of giving or receiving a small bribe and special rules do not consider such an action as a crime, then the act will be classified as complicity in the commission of a crime. V. Borkov shares a similar opinion, noting that if the size of the bribe does not exceed the amount established by the Criminal Code of the Russian Federation, then the intermediary will act as an accomplice and will be held responsible for this.

If the bribe is less than 25 thousand rubles, the intermediaries of such fraud will not be punished

Question: Part 5 of Article 291.1 of the Criminal Code of the Russian Federation states that the culprit who made a promise or made an offer to mediate in bribery faces appropriate punishment based on criminal liability. In this case, can we consider that the legislator has tightened the punishment for such an act, regardless of the size of the bribe, and also whether the established prohibition for assigning criminal liability to crimes of medium gravity regarding bribery has been overcome?

Answer: according to V. Borkov, this part of Article 291.1 of the Criminal Code of the Russian Federation is considered a kind of addition to the first part, namely, its qualified composition. If you carefully read the fifth part, you can conclude that it is an aggravating element of the crime.

However, judging by the text, this same part acts as a separate corpus delicti, and such phenomena, it is worth noting, are not uncommon. Many articles have several parts, which ultimately become independent and are responsible for certain criminal acts that are not related to each other.

Moreover, in the event of a trial, experts adhere to the point of view of the famous professor P.S. Yani, who argues that since this part refers to Article 291.1, which provides for punishment only if the size of the bribe is impressive, then here, too, punishment for the fact of mediation should be imposed only when it is established that the size of the bribe reaches or exceeds the established one.

The severity of the punishment is determined in each case separately

In what ways can you differentiate between a middleman and a bribe-giver?

There are several criteria for distinguishing a bribe-giver from an intermediary and vice versa. All of them are provided for in the Criminal Code, and below are several of the most common.

1. Initiative to give a bribe. The criterion appeared thanks to the work of B.V. Volzhenikina. However, it is worth noting that the intermediary can also act as an interested and proactive person, so this criterion cannot be made fundamental.
2. Interest in privileges from the bribe recipient. V. Borkov adheres to this criterion. He believes that differences must be sought starting from the first part of Article 290 of the Criminal Code of the Russian Federation. This part sets out in detail the points that describe the signs of possible bribery. So, for example, a person interested in such an action as receiving a bribe is able to provide various opportunities to the bribe giver, and it is this point that becomes key. It allows you to distinguish the bribe-giver from the intermediary, since the second may sometimes not even know about the crime and be only the person represented. However, it is worth noting that sometimes the interests of both persons in receiving privileges from the bribe-taker may be identical, which complicates the process of separating these categories.

   It is very important to distinguish between a middleman and a bribe-giver.

3. Ownership of property between the bribe giver and the bribe taker. This criterion also makes it possible to determine which of the accused is the intermediary, since he does not possess property before the transfer of the bribe and will not possess it after the commission of the crime. A similar approach was stated in their works by O. Kapinus and P. Jani.

As for the last criterion, each of the works should be considered separately. For example, Kapinus believed that when transferring a bribe, the person who is involved in the direct transfer is the bribe giver. However, if the funds belong to a third party, then the transferor is an intermediary.

Important! Yani considered a situation where both the bribe-giver and the individual or legal entity he represents are interested in committing a crime. Moreover, in the latter case, the bribe-taker may be distinguished from the intermediary by the fact that this person uses his own property.

Everything largely depends on who owns the money or anything else that is transferred as a bribe

Example

For a more clear understanding of the essence of who is the intermediary in the crime of transferring a bribe, it is worth considering an example.

Task: After the court hearing, the actions of citizens A and D were recognized as complicity in giving a bribe. Moreover, the crime of both was committed under a number of circumstances. Citizen G is a lawyer. Throughout his service, he assisted L.E. in giving a bribe, receiving a significant amount from it. At the same time, the citizen transferred the amount itself to citizen A, who, in turn, was an employee of the prosecutor’s office.

As a result, the court decision recognized that both citizens, A and D, acted in the interests of one person - the bribe-giver. It was from him that they received remuneration for the actions they performed, and also from him they received the necessary amount that needed to be transferred to a second person. It is these actions that imply complicity in giving a bribe.

However, when considering this case, one should also refer to the changes that were made to the Criminal Code of the Russian Federation. Today, the qualification of such crimes is dealt with in Article 291.1, which considers issues of mediation as a separate type of illegal act. It is also necessary to distinguish between an accomplice, an intermediary and a co-performer, based on several criteria, one of which is the size of the bribe transferred.

Bribery and related crimes

Money from the organization in whose interests the bribe is given (legal or hidden from accounting) can be spent on a bribe. The search for evidence in this case is carried out by examining payment and other financial documents confirming the issuance of sums of money on account to an employee of the company for the transfer of a bribe or the transfer of non-cash money to the account of the bribe recipient or for payment of services, as well as interrogation of witnesses who know the circumstances of the allocation of such sums, their transfers to officials as a bribe for their performance of official actions.

The source of funds may be money and property received as bribes from subordinates and controlled persons. This situation is typical for industries where there is a tradition of bribery. Bribes are transferred systematically from lower-level managers to higher-level ones and represent, in a certain sense, a pyramid.

Other sources are possible, but we have focused only on the most frequently encountered in practice. It is necessary to emphasize the importance of studying all the circumstances of the case in totality, since only in this way can connections be established between the various elements of the criminalistic characteristics, for example, the conditionality of the specific subject of the bribe by the nature of the relationship between the bribe giver and the bribe recipient, the method of reception and transfer, etc.

In order to procedurally introduce the subject of a bribe into the materials of a criminal case, a protocol is drawn up for the personal search of the bribe-taker, if the subject was with him at the time of his arrest red-handed, or a protocol for examining the scene of the incident, if the subject of the bribe was “dropped” by the subject or left in place. If the subject of the bribe was transferred earlier, before receiving a report of a crime, or hidden by the bribe-taker, then its search is carried out through a search, and the discovery of the subject of the bribe is recorded in the search protocol. In cases where the location of an item is reliably known, it can be seized during seizure. This is a very important element of the subject of proof in a bribery case, therefore the defense always pays attention to it, and the investigator must be confident in the impeccability of the procedural registration of the subject of the bribe. The search for the subject of a bribe must be preceded by a detailed interrogation of the bribe giver or another person who knows about the subject. During the interrogation, its name, quality, individual characteristics, cost and other characteristics are established by which it can be identified during a search. In a number of cases, before carrying out investigative actions aimed at searching and seizing the subject of a bribe, it is necessary to obtain operational information about the location of the bribe or traces of its presence, especially if it was transferred long before the initiation of a criminal case. For this purpose, the investigator, in accordance with Art. 38 of the Code of Criminal Procedure of the Russian Federation instructs the investigative body to collect information about the location of the subject of the bribe or traces of its presence. It is also important to find out how the subject of the bribe could have changed during the time it was in the hands of the bribe recipient, or how it was used by him.

For example, in the author’s investigative practice in one of the criminal cases, the subject of the bribe was a fur coat, given to the deputy dean for work with foreign students at one of the Leningrad universities for canceling the order to expel an Afghan student. More than two years passed from the moment the bribe was handed over to the initiation of a criminal case, during which the fur coat was repaired twice in the studio (the buttons were altered, the cuffs were replaced, a fur insert was sewn into the right shelf). The briber had difficulty identifying the item of the bribe, saying that the appearance of the fur coat had been changed. To prove this, a number of identifications of the fur coat were carried out by various witnesses, interrogations of a commodity expert, studio workers, and dean's office employees were conducted as witnesses, and a forensic merchandising examination was ordered.

After seizing the bribe item, the investigator must immediately inspect it and record its individual characteristics. If necessary, the subject of a bribe may be presented for identification to the bribe giver, bribe recipient, other persons who saw it from the bribe giver or bribe recipient, or under other circumstances. In some cases, various examinations are carried out on the item and its packaging, which in itself provides additional evidence. Such forensic examinations are carried out as traceological, fingerprint, biological, merchandising, handwriting, construction and others, depending on the nature of the object of study and the circumstances of the case. Only after all necessary actions have been completed, the investigation attaches the subject of the bribe to the materials of the criminal case as material evidence.