ST 304 of the Criminal Code of the Russian Federation.
Provocation of a bribe, commercial bribery or bribery in the field of procurement of goods, works, services to meet state or municipal needs, that is, an attempt to transfer to an official, a foreign official, an official of a public international organization, a person performing managerial functions in commercial or other organizations, or to the person specified in part one of Article 200.5 of this Code, without his consent, money, securities, other property or the provision of property services to him, the provision of other property rights for the purpose of artificially creating evidence of a crime or blackmail, -
shall be punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or imprisonment for a term of up to five years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Provocation of a bribe in the history of the Russian Federation
Provocation as an effective tool in the fight against bribe-takers has been widely used since the times of Tsarist and then Soviet Russia. It was first banned only in 1922, when the fight against bribe-takers was particularly active. Until 1926, only provocation to give a bribe remained criminal. Then Art. 119 of the Criminal Code of the RSFSR - it also made provocation of receiving, that is, inciting a citizen to offer an unlawful benefit in order to expose the bribe-giver, criminal .
In the 1960 code, there was no provocation of a bribe as a special crime. However, police officers were still brought to justice: incitement to bribe, as the use of their position to the detriment of the interests of the service, was classified as abuse of power .
From 1996 to today, a modern code has been in force, which includes Art. 304 of the Criminal Code, “Provocation of a bribe or commercial bribery.” Thus, over the last century, domestic criminal legislation has, in one way or another, considered inducing officials to obtain unlawful benefits as a crime.
Provocation as a way to identify bribe takers
Provocation is a way of artificially creating an evidence base , inciting a crime. It is expressed in an attempt to transfer a bribe (money, other valuables, provision of property services) to an official of a private or public enterprise, organization, institution or service without the consent of this official (Article 304 of the Criminal Code).
In legal circles, the modern definition of provocation is considered controversial. This is also related to the conflicting assessments of judges when considering cases of incitement to give a bribe in judicial practice. Only the Supreme Court was able to provide clarity and specific criteria for assessment.
Commentary to Art. 304 of the Criminal Code
1. The subject of the crime is money, securities, other property, services of a property nature, and other property rights. For their concept, see comments to Art. 204, 290 CC.
The victim is an official, a foreign official, an official of a public international organization or a person performing managerial functions in commercial or other organizations. For the concept of these persons, see the comments to Art. 201, 285 CC.
2. The objective side is expressed in the form of actions: in an attempt, without the consent of the victim: a) to transfer money, securities, other property to him; b) provide him with services of a property nature; c) provide other property rights. The designated actions must be real in nature and recorded on specialized equipment (audio, video recording, etc.) or have witnesses to achieve the designated goals. An attempt to transfer these items can be made directly, through deception, or unnoticed by the victim. Lack of consent means that the victim’s prior consent to these actions was not obtained.
3. The crime is recognized as completed from the moment of transfer of property or provision of services of a property nature without the knowledge of an official or person performing managerial functions in a commercial or other organization, or despite their refusal to accept illegal remuneration.
4. The actions of a person who is not aware of the provocation, who succumbed to persuasion and accepted the specified items, may be qualified as an attempt to commit crimes under Art. 204 or 290 CC.
5. The subjective side is characterized by direct intent and the goals of artificially creating evidence of a crime or blackmail. This crime must be distinguished from bribery (Article 291) and commercial bribery (Parts 1 - 4, Article 204) in terms of goals and intent.
Clarifications of the Supreme Court
Firstly, the Supreme Court identified in paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 24 of 07/09/2013 two main signs of provocation :
- Money or valuables must be transferred to an official for the purpose of artificially forming an evidence base .
- The official did not agree to accept money or other valuables or clearly refused to accept them.
Secondly, he determined the moment of the end of the crime: this is the moment of transfer of money/property to an official without his knowledge or despite his refusal. If an official agreed to accept a bribe, the qualifications and actions of the operatives are legal, they should not, under Art. 304 CC .
Thirdly, the Supreme Court recommends distinguishing incitement to receive a bribe from provocation. If the operatives clearly persuaded the official to accept a bribe and without their participation the criminal plan would not have arisen and the crime would not have been committed, there is no corpus delicti , even if the official gave his consent to accept the unlawful benefit (clause 34 of the PVS Resolution No. 24).
Criteria for provocation
One of the possible options for the position of the defense in cases of receiving a bribe, provided for by the provisions of Art. 290 of the Criminal Code of the Russian Federation, is for a lawyer to prove the fact of provocation of a bribe against his client by the briber. About the concept of “bribery provocation”
It should be noted that in Art. 304 of the Criminal Code of the Russian Federation enshrines a rather narrow definition of the concept of “provocation of a bribe”, which is understood as “an attempt to transfer to an official, a foreign official, an official of a public international organization without his consent money, securities, other property or to provide him with services of a property nature, the provision of other property rights for the purpose of artificially creating evidence of a crime or blackmail.”
For a long time, Russian courts did not know how to correctly evaluate the defense’s arguments about the facts of provocation of a bribe. The law does not have clear criteria by which it would be possible to determine beyond any doubt whether there was a fact of provocation of a bribe or the fact of its receipt, whether law enforcement officers exceeded their powers when carrying out operational investigative measures in cases of corruption and whether they did not allow provocation bribes.
The situation changed dramatically with the adoption of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 9, 2013 (as amended on December 3, 2013) “On judicial practice in cases of bribery and other corruption crimes,” which clearly formulated the following recommendations for lower courts to assess the parties’ arguments about the presence or absence of facts of provocation of a bribe (paragraphs 32–34):
a) criminal liability under Art. 304 of the Criminal Code of the Russian Federation occurs under the following conditions: – an attempt to transfer money, securities, other property or provide services of a property nature was carried out through the artificial formation of evidence of a crime or blackmail; – the official, knowingly for the guilty party, did not perform actions indicating his consent to accept the bribe, or refused to accept it;
b) provocation of a bribe is a completed crime from the moment of transfer of property or provision of services of a property nature: – without the knowledge of the official; – despite his refusal to accept illegal remuneration;
c) excludes the qualification of the act under Art. 304 of the Criminal Code of the Russian Federation, the fact of a person’s consent to accept illegal remuneration as a bribe;
d) the official to whom they tried to transfer illegal remuneration is not subject to criminal liability under Art. 304 of the Criminal Code of the Russian Federation in connection with the absence of a crime (clause 1, part 1, article 24 of the Criminal Procedure Code of the Russian Federation);
e) must be distinguished from the crime provided for in Art. 304 of the Criminal Code of the Russian Federation, inflammatory actions of law enforcement officers who provoked an official to accept a bribe.
Ambiguous assessment
Since the Supreme Court of the Russian Federation gave the above clarifications, a fairly extensive judicial practice has developed, indicating that the courts have ambiguously assessed the defense’s arguments about the absence of an event or corpus delicti under the provisions of Art. 290 of the Criminal Code of the Russian Federation, and about the presence of facts of provocation of a bribe.
Thus, in paragraph 3 of the Generalization of the practice of considering criminal cases of corruption for the second half of 2013 and 2014 in the courts of the Yamalo-Nenets Autonomous District (approved by the Presidium of the Court of the Yamalo-Nenets Autonomous District on September 9, 2015), the court of the subject took the position defense and indicates that “by the verdict of the Nadym City Court L. was found guilty under Part 1 of Art. 292 (2 crimes), part 3 of Art. 290 (2 crimes), part 3 of Art. 30 and part 3 of Art. 290 of the Criminal Code of the Russian Federation. The court found that L., holding the position of doctor at a district hospital, acting through an intermediary S., received bribes from three persons for drawing up false certificates of incapacity for work. In the latter case, he was detained by operational officers. The court of appeal overturned the verdict against L., the latter was acquitted due to the lack of corpus delicti in his actions,” since “the materials of the criminal case did not contain evidence that the convicted person would have committed the crime without the intervention of law enforcement officers and without the artificial creation of conditions for this by them . The panel of judges came to the conclusion that the actions of the police officers were aimed at inducing L. to receive illegal remuneration, that is, provocation, which violated the requirements of Art. 5 of the Federal Law “On Operational Investigative Activities”.
The results of the operational investigation and evidence derived from them could not be used as the basis for the verdict. Taking into account that other evidence was also declared inadmissible, the Judicial Collegium came to the conclusion that L.’s guilt had not been proven and decided to acquit him.”
However, for example, already in the Resolution of the Presidium of the Tver Regional Court dated August 24, 2015 No. 44u-99/2015, the court rejects the position of the defense and says that “the arguments of the cassation appeal about obtaining the results of operational-search activities in violation of the law, including in connection with the special status of the convicted V. and K., as well as the provocative actions of police officers during operational search activities, they received a full and correct assessment by the court of first instance and the court of appeal, with which there is no reason to disagree. In particular, the court of first instance, based on checking the results of operational investigative activities in criminal procedure, came to the conclusion that D.’s intent to extort a bribe was formed independently of the activities of the employees of the operational units. The appellate court correctly pointed out that the Federal Law “On Operational-Investigative Activities” and other federal laws do not provide for obtaining any special permission to conduct an operational experiment in relation to a municipal deputy.”
In the appeal ruling of the court of the Yamalo-Nenets Autonomous District dated August 21, 2014 in case No. 22-932/2014, the court also does not take into account the point of view of the defense and indicates that “the defense’s arguments about the presence of provocation on the part of law enforcement agencies are completely refuted by the specified evidence . The reference to the words FULL NAME2 and the advice of operational employees in the case under consideration is clearly unconvincing. Contrary to the arguments of the complaints, from the content of the transcript of the negotiations it follows that B. has created all the conditions for receiving bribes from persons wishing to rent municipal premises, about which he gives numerous arguments in the conversation, insisting that without him no one will be able to resolve the issue of rent, and ironically suggesting FULL NAME2 to try to act without his consent. B.’s statements are consistent with the testimony of the head of the administration of the village of Kharp, Full Name 3, who, after contacting him with Full Name 2 on the issue of renting premises, sent him to B without discussion. The content of the results of the operational investigation received a proper assessment in the verdict in conjunction with other evidence in the case. Contrary to the opinion of the convict and his defenders, there are no significant discrepancies in the testimony of Full Name 2 and Full Name 25, since the search for Full Name 2, who is engaged in entrepreneurial activity together with his wife, for additional premises without a prior agreement with Full Name 25 does not indicate that these actions were committed with the aim of provoking the receipt of B. bribes."
Strengthen the defense position
In the practical work of a defense lawyer in cases of bribe-taking, it often becomes necessary to base his position on the position of the client regarding the fact of provocation of a bribe by the bribe-giver or law enforcement agencies. Judicial practice on this issue is currently very ambiguous. The defense's arguments about the fact of provocation of a bribe are carefully checked by the courts, taking into account the recommendations set out in the said Resolution of the Plenum of the Armed Forces of the Russian Federation. Sometimes courts accept this position, but most often they claim that the defense was unable to prove the fact of provocation of a bribe, and also that no significant violations or abuses were committed during the operational investigation. Along with the arguments about the facts of provocation of a bribe, others should be used in order to strengthen the defense’s position and increase the client’s chances of an acquittal.
Responsibility for provoking a bribe: to whom and how much
To liability under Art. 304 of the Criminal Code, as a rule, special subjects are involved - usually operatives. In order for “provocateurs” to be held accountable, they must be aware of the provocative nature of their actions. The purpose of provocation is to create the appearance of receiving unlawful benefits, the generation of false data, the purpose of which is to prepare “poor quality” evidence . If this is proven, the operatives will be held accountable under Art. 304 of the Criminal Code, they are threatened by:
- up to 200 thousand rubles fine;
- up to 5 years of forced labor + up to 3 years of ban on holding positions;
- up to 5 years in prison + up to 3 years ban on holding positions.
The basis for qualifying the actions of the operatives as a provocation of a bribe is a complaint from the injured official. Usually it is submitted as one of the lines of defense when charges are brought against officials under Art. 290 of the Criminal Code for obtaining unlawful benefits.
Arbitrage practice
In fact, there are no examples of successful use and evidence of the guilt of operatives in committing a crime under Art. 304 of the Criminal Code are few, and there is no uniform judicial practice on provoking a bribe in this matter. For example, in paragraph 3 of the Generalization of judicial practice for 2013-2014 in the courts of the Yamal-Nenets Autonomous Okrug, a case is described when the appeal acquitted the doctor of the district clinic, recognizing the transfer of a bribe to him as part of an operational experiment as a provocation, since:
- the operational experiment was carried out on the basis of some undocumented “operational information”;
- the “provocateurs” who gave the doctor money did not inform the operatives that they were being extorted;
- The “provocateurs” were not going to see a doctor if the police had not sent them there.
In another similar situation, the court does not take into account the fact that the “provocateur” persuades the official to talk about a bribe, and finds him guilty - there is no provocation (Determination No. 22-932/2014 of 08/21/2014). The courts make the same conclusions, even if the defendants point to direct instructions in the transfer of money from the operatives (resolution of the regional court of the Tver region No. 44U-99/2015).
Judicial practice under Article 304 of the Criminal Code of the Russian Federation
Determination of the Constitutional Court of the Russian Federation dated 06/05/2018 N 1404-O
Bearing in mind the logic of the construction of the criminal law, including general and special, as well as ordinary and qualified elements, the absence in Article 304 of the Criminal Code of the Russian Federation of such an aggravating feature as committing provocation of a bribe or commercial bribery using official (official) position (a sign that objectively makes the act more dangerous than the usual such provocation), does not allow us to assume that the provocation of a bribe or commercial bribery should absorb the crime provided for in part three of Article 286 of this Code, when they are combined in committed, and taking into account the maximum punishment in the sanction of this norm (imprisonment for a term of three to ten years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years) in comparison with the sanction of its article 304 (imprisonment for a term up to five years with deprivation of the said right for up to three years or without it), there is no reason to assume that the legislator intended to reduce liability for a more dangerous crime only because it was expressed in such a provocation.
Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 24, 2019 N 59
“In order to ensure uniform application by courts of legislation on liability for bribery (Articles 290, 291, 291.1, 291.2 of the Criminal Code of the Russian Federation) and other corruption crimes (in particular, those provided for in Articles 159, 160, 184, 200.5, 204, 204.1, 204.2, 292, 304 of the Criminal Code of the Russian Federation), as well as in connection with issues raised by the courts, the Plenum of the Supreme Court of the Russian Federation, guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 No. 3-FKZ “On the Supreme Court of the Russian Federation” Federation”, decides to give the following clarifications to the courts: “;
