Attempted bribery problems of article qualification. Qualification of receiving a bribe based on objective criteria
Features of qualification of bribery
In the broad sense of the word, bribery includes three crimes, liability for which is provided for in the current Criminal Code:
Receiving a bribe (Article 430 of the Criminal Code);
Giving a bribe (Article 431 of the Criminal Code);
Mediation in bribery (Article 432 of the Criminal Code).
Bribery is the most dangerous manifestation of corruption, since it undermines the principles of government, equality and social justice, restrains economic development, and poses a threat to the moral foundations of society.
The subject of a bribe can be material assets (money, securities, things, etc.) or benefits of a property nature provided to an official solely in connection with his official position (various types of services provided free of charge or on preferential terms, but subject to payment, carrying out construction, repair, other work, etc.). If the subject of the bribe is items that are seized or restricted in circulation (narcotics, firearms, precious metals, etc.), then the act, in addition to bribery, must be additionally qualified under the article providing for liability for the illegal circulation of the relevant items (Article 223, 295, 328, etc.).
The acceptance by an official of souvenirs and gifts during protocol and other official events, as well as gifts on the occasion of birthdays and holidays, if they were presented to the official without any conditionality of the remuneration on the corresponding actions in the service, is not considered a bribe. If it is established that, under the guise of a gift, a bribe was transferred for the use by an official of his official powers in the interests of the person who presented the gift, then the act is qualified as bribery, regardless of the value of the subject of the bribe.
In judicial practice, the end point for all three crimes that constitute bribery is defined as follows: “Giving a bribe, receiving a bribe and mediation in bribery are recognized as completed crimes from the moment the official accepts the material reward. In cases where the stipulated bribe was not received for reasons beyond the will of the bribe recipient, the act constitutes an attempt to receive a bribe. In particular, according to Art. 14 of the Criminal Code and the corresponding part of Art. 430 of the Criminal Code are subject to qualification of the actions of an official who received counterfeit banknotes as a bribe, being confident of their authenticity.” 95 Conducting negotiations on giving and receiving a bribe, reaching an agreement on the subject of the bribe, finding accomplices in bribery should be qualified as preparation, respectively, for giving or receiving a bribe. An externally expressed intention to give (receive) a bribe cannot be considered a crime if the person has not taken any action to realize such intention.
Receiving a bribe occurs when the actions performed by an official were conditioned by appropriate remuneration.
The act is qualified as bribery regardless of 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. If acts committed for a bribe constitute a crime, then what was done must be classified as a set of crimes.
If an official was detained at the time of receiving the subject of a bribe during an operational experiment, the act must be qualified as an attempt to take a bribe.
When qualifying the receipt of a bribe committed repeatedly, one should take into account the provisions of Part 4 of the Notes to Chapter. 35 of the Criminal Code. If there are signs of identical repetition, receiving a bribe is recognized as such if:
The bribe items were received from one person in different time for committing certain acts in his interests;
The bribe items were received from different persons at different times for performing actions in relation to each person who gave the bribe;
Bribe items are received from several persons at the same time, but a separate action is performed in the interests of each bribe giver. Receiving a bribe associated with extortion is the demand of an official to give a bribe under the threat of committing such actions in the service that could cause damage to the legitimate interests of a citizen, or the deliberate placing of a citizen through inaction in the service in such conditions under which he was forced to give a bribe to prevent harmful consequences to its law enforcement interests.
If a person, despite a threat or even an actual action (inaction) in his official capacity, aimed at causing damage to his legitimate interests, refused to give a bribe, what the official did should be qualified as an attempt to take a bribe associated with extortion.
Qualifications for giving a bribe
When making a criminal legal assessment of the subjective side of giving a bribe (Article 431 of the Criminal Code), it should be borne in mind that giving a bribe can be committed not only for selfish reasons, but also for other reasons. For example, the transfer to an official of the corresponding remuneration in the interests of a legal entity, regardless of the form of ownership, should be qualified under Art. 431 CC.
The qualifications of the behavior of the bribe-giver may be influenced by the presence or absence of selfish motivation on the part of the official to whom the relevant material assets are transferred. Thus, if an official directs the material assets received or services performed to the needs of the legal entity he manages (and this is assumed by him initially), then the behavior of this official does not contain the elements of receiving a bribe and, accordingly, the actions of the person who handed over the bribe and did not know about the true intentions of an official must be qualified as an attempt to give a bribe.
The motives and purposes of transferring remuneration should always be clarified when qualifying a bribe. Their establishment can help identify other crimes (theft, crimes against justice, etc.).
An offer to an official to accept a bribe should be qualified as preparation to give a bribe. If, when handing over the subject of a bribe, it was rejected by an official, the act must be qualified as an attempt to give a bribe.
If the person who initiated the bribe, instead of the subject of the bribe, transfers obviously counterfeit banknotes or securities, the act constitutes a set of crimes: incitement to receive a bribe and sale of counterfeit money or valuable papers(Article 221 of the Criminal Code).
The actions of an official who received a bribe and then transferred part of what was received as remuneration to the relevant official (without prior agreement with him to receive the bribe) in order to make a decision in the interests of the bribe giver should be classified as a set of crimes as receiving and giving a bribe.
Features of qualification of mediation in bribery
Mediation in bribery (Article 432 of the Criminal Code) in its external manifestation represents complicit actions, expressed in the direct transfer of the subject of the bribe from the bribe-giver to the bribe-taker. Mediation in bribery should be distinguished from complicity in giving or receiving a bribe. To qualify the actions of the culprit as mediation in bribery, it is necessary that his role is limited only to the transfer of the subject of the bribe.
The actions of a person who organized the giving or receiving of a bribe, instigated or assisted in giving and receiving a bribe and at the same time performed intermediary functions should be qualified as complicity in giving and receiving a bribe. The issue of qualifying the actions of an accomplice must be decided taking into account the direction of his intent, based on whose interests, on whose side and on whose initiative - the bribe giver or the bribe taker - he acts. In such cases, additional qualification of actions under Art. 432 of the Criminal Code is not required.
The actions of a person who has received material assets from a bribe-giver, allegedly for transfer to an official as a bribe, who, without intending to do so, appropriates them, must be qualified as fraud. If the imaginary intermediary in this case persuaded the relevant person to give a bribe, then his behavior should be additionally qualified as incitement to attempt to give a bribe (part 5 of article 16, part 1 of article 14 and article 431 of the Criminal Code).
Correlation between bribery and property theft
If property stolen at the instigation of an official is received as a bribe, the act, in addition to receiving a bribe, must additionally be qualified as complicity in theft.
Receiving as a bribe property stolen by other persons is qualified as receiving a bribe and complicity in theft, provided that the official has made a promise in advance to accept such values. In the absence of such a promise and there is awareness that the subject of the bribe was acquired by criminal means, the act must be qualified under Art. 430 and art. 236 of the Criminal Code.
Dear colleagues!
I continue to bring to you all the existing judicial practice on the topic of “bribe.”
And so, what lawyers need to know about the qualifying signs of receiving a bribe and commercial bribery, let’s first consider the qualifying sign “by a group of persons by prior conspiracy or by an organized group.”
According to Part 2 of Art. 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by a group by prior conspiracy if it involved persons who had agreed in advance to jointly commit a crime.
Since the subject of the crime under Art. 290 of the Criminal Code of the Russian Federation is special, then when qualifying actions on this basis, it is necessary to be guided by what is contained in Part 4 of Art. 34 of the Criminal Code of the Russian Federation, the norm according to which a person who is not the subject of a crime specifically specified in the relevant article of the Special Part of the Criminal Code, who participated in the commission of a crime provided for by this article, bears criminal liability for this crime as an organizer, instigator or accomplice.
According to paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/09/2013 No. 24 (hereinafter referred to as the Plenum), a bribe or the subject of commercial bribery should be considered received by a group of persons by prior conspiracy if the crime involved two or more officials or two or more persons performing managerial functions. functions in a commercial or other organization that have agreed in advance to jointly commit this crime by accepting each of the group members part of the illegal remuneration for the commission of actions (inaction) by each of them in the service in favor of the person who transferred the illegal remuneration or the persons represented by him.
When qualifying the actions of these persons, it does not matter what amount was received by each member of the criminal group, as well as whether the bribe-giver was aware that several officials were involved in receiving the bribe.
Direct participation in the commission of a crime means performing, in whole or in part, actions that constitute the objective side of the crime.
The crime is considered completed from the moment the bribe is accepted by at least one of the group members with the intention of subsequently dividing the illegal reward between the accomplices in accordance with the agreement reached.
Let's look at one example.
The Penza Regional Court were convicted under paragraphs. “a, c” part 4 of article 290 of the Criminal Code of the Russian Federation N. - head of the branch of the Federal State Institution "Main Bureau of Medical and Social Expertise in the Penza Region" and Kh. - psychologist of the same institution for receiving a bribe through extortion by a group of persons by prior conspiracy.
The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation left the verdict unchanged, indicating the correctness of the qualifications of the actions of the convicts.
From the testimony of witness R. it followed that he brought his daughter, who has been disabled since birth, to a commission to extend the child’s term of disability.
N., having examined the child, referred her to psychologist X., who stated that the child looked good, there might be problems with the examination and suggested talking about it with N.
R. again turned to N., who stated that there were no grounds for extending the girl’s disability and referred to the fact that the result would be negative if a repeat examination was ordered.
R., knowing that there was no improvement in his daughter’s health, asked N. to observe the child for another year, to which she replied: “You interest us, then we will leave everything.” He offered N. 2,000 rubles, but she made it clear that this amount was not enough and offered to meet later that day.
Arriving at the hospital at the appointed time, R. met Kh., who invited him to the office and on a piece of paper indicated the amount of the bribe in the amount of 7,000 rubles. R. in N.’s office gave her the money, after which N. informed her that his daughter’s disability certificate had been issued.
The conclusion of the medical and social examination carried out during the preliminary investigation established that E. was subject to definition of the category “disabled child”.
The preliminary nature of the conspiracy was evidenced by both the coordinated joint actions of N. and Kh., and the actions of each of them aimed at receiving a bribe.
The arguments of the cassation appeals that Kh. did not receive the money, and therefore her actions were not subject to qualification as a completed crime, are untenable, since as a result of the joint and coordinated actions of both convicts, the money had already been received by N., some of which was transferred for delivery other persons, including Kh., who was not given the amount due due to the fact that she had already left work
(Bulletin of the Supreme Court of the Russian Federation, 2010, No. 6).
In accordance with Part 3 of Art. 35 of the Criminal Code of the Russian Federation, a crime is recognized as committed by an organized group if it is committed by a stable group of persons who have united in advance to commit one or more crimes.
According to paragraph 16 of the Plenum, an organized group is characterized by stability, a higher degree of organization, distribution of roles, and the presence of an organizer and (or) leader.
To an organized group - clause “a”, part 5, art. 290 of the Criminal Code of the Russian Federation and paragraph “a”, part 4 of Art. 204 of the Criminal Code of the Russian Federation, in addition to one or more officials or persons performing managerial functions in a commercial or other organization, may include persons who do not have the characteristics of a special subject of receiving a bribe or commercial bribery.
If the receipt of a bribe or the subject of commercial bribery is recognized as an organized group, the actions of all its members who took part in the preparation and commission of these crimes, regardless of whether they performed the functions of a performer, organizer, instigator or accomplice, are subject to qualification under the relevant part of Art. 290, Art. 204 of the Criminal Code of the Russian Federation without reference to Art. 33 of the Criminal Code of the Russian Federation.
The crime is considered completed from the moment the illegal reward is accepted by any member of the organized group.
Let's look at one example.
The RF Armed Forces recognized the presence of this qualifying feature in the actions of traffic police officers who received bribes from drivers for failure to draw up reports on administrative offenses.
By the verdict of the Astrakhan Regional Court Kirsanov A.A., Kirilin V.P., Tarkhov V.V., Kadyrov N.N., Sanzhapov M.I., Mukhanov G.M. found guilty of the fact that they, being officials, as part of an organized group, personally received bribes in the form of money for inaction in favor of the bribe giver.
As the court found, from the beginning of 2008 to February 5, 2010, in order to systematically obtain Money(bribes) members of the criminal group, traffic police inspectors at stationary traffic police posts, identifying administrative offenses committed by drivers, took them personally or sent them to the senior stationary post, realizing that from a certain part of them for failure to draw up an administrative protocol, the “senior” post will receive a bribe in the form of money, and during the absence of a senior post from the premises for any reason, as well as in the event of his employment, they themselves directly received bribes in the form of money from drivers, which were then transferred to the senior post, including from the beginning of 2008 - G., from the end of 2009 - S., from 01/02/2010 - V.V. Tarkhov, to invest the received amounts in the common part (common pot), collected for the shift of money, in order to then distribute it among everyone members of an organized criminal group, and also transfer the share established personally by Kirsanov directly to him, through senior inspector V.V. Tarkhov. and other specifically designated persons.
At the same time, some of the inspectors, including the senior post Tarkhov, who began to carry out job responsibilities from 01/02/2010 after returning from regular leave, while serving at the post as a machine gunner, contrary to the task assigned to them to protect public order in the territory of stationary traffic police posts and fire cover in order to ensure the safety of the work of other post inspectors, based on role assigned to them, monitored the environment in order to eliminate any possibility of detection of the criminal activities of the group by law enforcement agencies at the time of receiving bribes by senior officials.
At the same time, senior posts, as members of an organized group, which included both S. and G. while serving at any of the stationary posts, during communication with drivers of vehicles who committed administrative offenses due to violation of the Rules traffic, systematically personally received bribes from them in the form of money for illegal inaction, expressed in the failure to draw up protocols on identified offenses based on the data of persons (drivers), which entailed their release from administrative liability for the offense committed.
Then, during the work shift, the money (bribes) illegally received from drivers by senior positions - members of the organized group, among whom were G. from the end of 2009, S., from January 2, 2010, Tarkhov V.V., was kept at their place, and at the end of a six-day work shift, part of the illegally obtained funds in a fixed amount, at a rate directly established by Kirsanov from stationary traffic police posts, was transferred by the above-mentioned persons and other senior posts of each of the 4 shifts, to the shift senior, a member of an organized criminal group, V.P. Kirilin, who directly transferred this amount to the company commander Kirsanov A.A.
The remaining portion of the funds received in the form of bribes in excess of those established by Kirsanov A.A. rates, distributed depending on their balance among other members of the organized group and spent by them at their own discretion.
Recognizing as untenable the arguments of the defense's complaints about the absence of the qualifying feature of an “organized group of persons” in the actions of the perpetrators, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation indicated that created and led by company commander A.A. Kirsanov. the criminal group was stable and highly organized, since the most trusted persons were involved in it. There was the necessary secrecy in the group, according to which the inspectors transferred money received in the form of bribes at the posts to the senior posts, but not directly to their leader, and those or the senior shifts transferred them, as a rule, in a convenient place for this (a utility room in the absence strangers, car, on the street). In addition, as intern S. testified, young traffic police officers and interns were not aware of the existence of a criminal scheme for obtaining money from drivers and distributing it among members of an organized group.
The group developed an action plan and distribution of roles between group members in accordance with their position and official responsibilities, aimed at achieving a common result in the form of systematic illegal collection of money from violating drivers when driving through a stationary traffic police post. It had its own organizer and leader, who was A.A. Kirsanov, who exercised general management and control over the officials subordinate to him who were members of the organized group, ensuring the complete subordination of the group he created. He also created the necessary conditions for her criminal activities and personally participated in the selection and placement of personnel.
Kirsanov, being endowed with organizational and administrative powers by virtue of his leadership position, determined the specific roles of each of the group members, demanded that order be maintained and the bribe collection scheme be followed, distributing them among all members of the group, gave instructions mandatory for execution by all members of the organized group, contributed in accordance with his official position, the commission of inactions by his subordinates in favor of the bribers. Gave instructions on maintaining secrecy in order to exclude the possibility of detection of criminal activity by law enforcement agencies or other unauthorized persons.
Moreover, regardless of which member of the organized group, at what time, in what position, in what shift personally received the bribe, each member received his due share of the total amount.
Throughout the entire period of operation of the criminal group, its members maintained close contact with each other through personal communication. Kirsanov's instructions were communicated to them, as a rule, through senior posts or shifts (the persons most trusted by Kirsanov) and were strictly followed. At the same time, issues related to receiving bribes were discussed in personal meetings.
During the commission of crimes, each member of the organized group performed the role and actions that were assigned to him according to the developed plan for the criminal activity of the organized group, which was a necessary condition continuation of illegal actions by other members of the group, and in general agreement aimed at achieving a common criminal result - illegal enrichment and extraction of permanent income by receiving bribes.
(Definition of the Supreme Court of the Russian Federation dated December 19, 2012 No. 25-O12-23).
According to paragraph 17 of the Plenum, when deciding on the qualification of receiving a bribe or the subject of commercial bribery as part of a group of persons by prior conspiracy or an organized group, one should proceed from the total value of valuables, for example, property, property rights, property services intended for all participants in the criminal group .
To be continued…
Taking a bribe is a phenomenon that is common today.
Such an act contains a certain composition and types of this crime.
In order to find out how this illegal act is formulated, you need to refer to the Criminal Code of the Russian Federation.
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Concept and legislative regulations
Receiving a bribe is considered a criminal act. categories of corruption crimes.
The essence of illegal actions comes down to an attack on free competition and equality between citizens.
Therefore the first normative document regulating this issue is the Constitution of the Russian Federation. Another main regulatory document is Criminal Code of the Russian Federation.
Not all norms are clear even with a detailed study of the documents listed above. In order to understand in more detail the essence of the unlawful act, you need to refer to the resolution of the Plenum of July 09, 2013, number 24.
This document contains information about the details of the device used in accordance with the norms of the Criminal Code of the Russian Federation. In addition, they reveal concept of bribery, the question of accomplices in a criminal act, as well as punishment for breaking the law.
In addition to the main documents, the concept is explained in the following regulations:
- Federal Law No. 79 of 05/07/2013, confirming the prohibition of some officials from keeping savings in foreign banks;
- Federal Law No. 230 of December 3, 2012, regulating control over the expenses of persons in the public service;
- Federal Law No. 273 dated December 25, 2008, which explains the issue related to the fight against corruption.
In addition to the listed regulations, there are Presidential decrees.
They, together with Government Decrees, regulate this issue.
They do not contain information about penalties for such actions, but they provide an opportunity for representatives of the commission of inquiry qualify correctly the act in question and have a more effective impact on the prevention of corruption crimes.
Different kinds
The main types of bribery are described in Article 290 of the Criminal Code of the Russian Federation. In it, the legislator outlined its main types and qualifications.
The main type of act is understood as the receipt by citizens of securities, material objects and rights to property.
In exchange, the official performs certain actions or, on the contrary, does not act in favor of the person turning to him.
Such actions are qualified according to a number of criteria. Qualification criteria are formed under the influence of:
- connection with extortion;
- if the bribe is received on a large scale;
- when a citizen is in a position related to municipal, as well as service in government departments;
- in the presence of a preliminary conspiracy and an organized group.
A bribe is not in all cases associated with the provision of money for receiving a specific service.
The subject of the crime may be various things or real estate.
Besides bribe size is also important during qualification. It can be of the following types:
- Significant, in which we are talking about an amount exceeding 25,000 rubles.
- Large, where the amount is equivalent to more than 150 thousand rubles.
- If we are talking about a particularly large amount, then the amount is more than a million rubles.
Experts argue that, in comparison with the main type of crime in question, qualifying features serve as an aggravating circumstance for a person who has crossed the line of the law.
This is manifested in the term provided for the main type of crime. With qualifying staff the punishment will be more severe.
What is the crime?
At highlighting the composition of the bribe it is necessary to highlight the components that are present in the form of four interconnected elements.
This is the object, the subject, as well as the objective and subjective side of the criminal action.
Each component of a bribe influences the qualifying actions on the part of the accused.
A bribe is distinguished by the multiplicity of objects of the crime, as well as the varying number of objects of the act.
Persons wishing to hide illegal actions often resort to cunning, forming related elements in the actions being carried out, for example the commission, regulated under Article 285 of the Criminal Code of the Russian Federation.
Signs for qualification
In order for specialists to easily qualify such a criminal act, they need to see main features, which predominate in this particular type of violation of the law.
Subject of the committed act is recognized:
- official from the Russian Federation;
- a foreign citizen performing official duties;
- officials from public international organizations.
Persons occupying official positions, consider citizens occupying the following types of jobs:
Under object This type of action is understood as social relations, which most often affect the interests of the state, and also spoil the image of a person in public service.
This is the defining aspect of the generic object for the crime in question.
If in the process of receiving a bribe the public relations, then they can be of the following types:
- Type of relations in the administration of justice.
- Free type of competition.
- Distribution of material goods among citizens.
Society is constantly happening the process of development of social relations. Its members cannot help but interact. Sometimes situations occur in which crimes of a corruption nature occur.
The objective side of an unlawful act is understood as the fact of the misappropriation of at least part of the subject of the crime.
At the same time, experts do not evaluate the fact of successful use of the subject of a crime.
Experts note moment of transfer of value from citizen to official.
Actions or inaction on the part of a person should not be attributed to the objective side. The act is committed after the process of transferring the bribe or at the moment when it was provided by the interested party.
Part of the transferred item is unimportant crimes. Sometimes the bribe is given in part, with the expected transfer of the remaining funds later.
In the event that a citizen was caught receiving part of a bribe, the crime will be classified under part six of Article 290 of the Criminal Code of the Russian Federation.
Method of transferring funds doesn't matter: this may be transfer from hand to hand or providing the opportunity to put the subject of the crime in a desk drawer or other places.
At what point is the crime considered completed?
A crime classified under Article 290 of the Criminal Code of the Russian Federation, is considered completed at the moment when the person offering the bribe transfers it to the official and agreements are established between them on the issue of receiving it and providing benefits on the part of one of the participants in the criminal act.
Wherein agreement between citizens must be at the evidentiary level. The recipient of the bribe will face liability under the Criminal Code of the Russian Federation.
What are the consequences of giving a bribe to an official during execution? find out right now.
Qualification problems
Often, when carrying out qualification actions, difficulties arise due to frequent changes in legislative regulations.
Proper classification cannot be made without carefully limiting other types of acts that may be similar to this type of infringement.
Many lawyers believe that the briber or his intermediary in almost all cases interested in receiving benefits after performing certain actions.
Bribery of a person performing his own duties is the ultimate goal pursued by the concerned citizen.
However, other experts do not agree with this statement and are convinced that it is necessary to find out the nature of the origin of the subject of the crime, and also to understand the guilt of the intermediary, who could find himself in such circumstances by mistake.
Problems consist of the following provisions:
- Difficulty in distinguishing between criminal acts.
- Difficulties in carrying out work to compare actual signs of a crime.
- Communication with regulations on this crime.
Punishment
Crimes related to the transfer of bribes have differences in social danger which they carry. Accordingly, the degrees of punishment for the actions taken differ. They can be of the following types:
At provocations commission of a bribe, that is, extortion, other liability is provided for the guilty person.
The penalty for attempting to solicit a bribe is strict and is a minimum of 7 years and a maximum of 17 years.
In addition to imprisonment, the offender faces prohibition on carrying out certain labor activity and a fine.
Arbitrage practice
To understand the essence of a bribe, you should refer to examples. Examples of such crimes include the following:
A bribe is directly an illegal act against society and the equality of citizens, therefore the punishment for such actions is severe.
It depends on the circumstances of the incident and the qualified personnel criminal act. Therefore, to understand the offense, you need to refer to the current legislation.
An example from judicial practice on receiving a bribe in this video:
Author of the article -
Collection output:
PROBLEMS OF QUALIFICATION OF BRIBERY (CORRUPTION ASPECT)
Andreeva Lyubov Alexandrovna
Ph.D. legal Sciences, Associate Professor, Russian State University for the Humanities, Russian Federation, Veliky Novgorod
E-mail:
THE PROBLEMS OF QUALIFICATION OF BRIBERY (CORRUPTION ASPECT)
Lybove Andreeva
candidate of juridical sciences, associate professor of Russian State Humanitarian University, Russia Veliky Novgorod
ANNOTATION
The article is devoted to the problems of qualification of bribery, issues that require clarification in connection with the changes that have occurred in the social and legislative assessment of bribery. The author considers the issues of distinguishing between a single intent to commit one crime, expressed in several episodes, and an intent to commit several independent and complete episodes of receiving various bribes. Conclusions and proposals are aimed at improving criminal legislation to combat bribery.
ABSTRACT
The article is sanctified to the problems of qualification of bribery, questions, requiring elucidation in connection with changes happening in the social and legislative estimation of bribery. An author examines questions about differentiation of single intention on the commission of one crime expressed in a few episodes, and intention, on the feasance of a few independent and completed episodes of receipt of different grafts. Conclusions and suggestions are sent to perfection of criminal statute on counteraction of bribery.
Keywords: corrupt practices; corruption; criminal law; intent; crime.
Keywords: bribery; corruption; criminal statute intention; crime.
Crimes united by the single term “bribery” are currently represented in criminal legislation by such offenses as taking a bribe (Article 290 of the Criminal Code of the Russian Federation), giving a bribe (Article 291 of the Criminal Code of the Russian Federation) and mediation in bribery (Article 291.1 of the Criminal Code of the Russian Federation). Often, when qualifying these crimes, questions arise that require clarification in connection with changes that have occurred in the social and legislative assessment of bribery.
The qualification of crimes is defined in the theory of criminal law as “the establishment and legal consolidation of an exact correspondence between the actual signs of the committed act and the signs of the crime provided for by the criminal law, as well as other laws and (or) other normative legal acts, references to which are contained in the blanket dispositions of the articles Special part of the Criminal Code of the Russian Federation".
The qualification of a crime involves a comparison of the actual signs of the committed act with the signs of the elements of crimes contained in the criminal law, with a statement of a certain legal assessment of the act. Therefore, consideration of qualification issues in theoretical developments affects both the first (actual signs of acts) and the second (signs of crimes) components of this process. In this study, the elements of bribery are examined precisely through the prism of their qualifications in investigative and judicial practice.
In addition, the correct qualification of the identified criminal acts is impossible without distinguishing them from each other and their delimitation from other related criminal acts.
One of the most pressing problems of qualifying bribery, requiring theoretical understanding, is the problem of distinguishing between receiving a bribe and fraud.
According to S.A. Bochkarev and O.V. Radchenko, the relevance of this problem, at first glance, has neither external nor internal confirmation. In the theory of criminal law, a circle of arguments and counterarguments in defense of one or another method of delimiting these crimes has long been outlined. Along with this, in practice there is a neutral attitude of the professional community towards the facts of reclassification of the actions of the accused from bribery to fraud. It has become common for law enforcement officers to initiate criminal cases under Article 290 of the Criminal Code of the Russian Federation, and bring charges under Article 159 of the Criminal Code Russian Federation.
For many years, the courts also saw no obstacle to changing the charge from receiving a bribe to fraud. As P.S. rightly notes. Yani, this position of law enforcement agencies contradicted the position of the Plenum of the Supreme Court of the Russian Federation, according to which the court has the right to change the charge and qualify the actions of the defendant under another article of the criminal law under which the defendant was charged, only on the condition that the actions of the defendant, qualified under new article law, he was charged with, do not contain signs of a more serious crime and do not differ significantly in factual circumstances from the charge for which the case was accepted for trial.
Ignoring the position of the Plenum was, in the opinion of P.S. Yani, is connected with the reservation made in the Plenum that changing the charge is unacceptable in the case where the defendant’s right to defense is violated, whereas such a violation is not possible when reclassifying the act at the judicial stage of the process from Article 290 of the Criminal Code of the Russian Federation to Article 159 of the Criminal Code of the Russian Federation The courts did not see it as a federation. However, the European Court of Human Rights found in such cases a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (subparagraphs “a” and “b”, paragraph 3 of Article 6), in particular a violation of the applicant’s right to a fair trial, in particular the right to be informed in detail of the merits and grounds of the charge brought against him, and the right to have reasonable time and opportunity to prepare his defence.
The criteria for distinguishing between receiving a bribe and fraud are given in paragraph 24 of the Resolution 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”: “receipt by an official of valuables for committing actions (inaction) which are within his powers or which he could commit using his official position should be qualified as receiving a bribe, regardless of the intention to commit these actions (inaction).
In the event that the specified person received valuables for performing actions (inaction), which in reality he cannot carry out due to lack of official authority and the inability to use his official position, such actions, if there is intent to acquire valuables, should be qualified as fraud committed by a person with using his official position."
The use of official position is distinguished from the use of official powers in two aspects. In one aspect, the difference is that even when an official acts to facilitate the performance of lawful acts by another official, it is not the exercise of official power that is taking place, but the use of official position. In another aspect, the use of official position is contrasted with the commission of actions included in official powers, when the official position is used: to commit illegal actions in the service of an official personally, as well as to facilitate the commission of illegal actions by another official.
It follows from this that the acceptance by an official of valuables is regarded as fraud when this official, by false assurances, actions or by omission, misled the person transferring the valuables to him regarding the fact that he has the authority that he can use to perform legal actions in favor of the specified person, that is, to perform actions within his official powers; or may actually, using his official position, commit illegal official actions for a bribe; or occupies a position whose significance and authority will allow him to facilitate the commission of legal or illegal actions in the service of another official that are desirable for the person who transferred the values.
In addition, the actions of a person who received valuables supposedly to be transferred to an official as a bribe, but obviously did not intend to fulfill his promise and turned the valuables to his advantage, should also be qualified as fraud. The owner of the valuables transferred to him in this case is responsible for attempted bribery (clause 24 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated September 9, 2013 No. 24).
Among the many issues related to the qualification of bribery, it is important to distinguish between a single intent to commit one crime, expressed in several episodes, and an intent to commit several independent and completed episodes of receiving various bribes.
In the theory of criminal law, the concept and content of a crime as a single and as a continued act of deviant behavior have been developed quite deeply. At the same time, it is generally accepted that a continuing crime consists of several acts united by a relatively short period of time, a single and similar method of committing criminal acts, and most importantly, a single intent and purpose.
N.F. Kuznetsova points out that “... receiving a bribe in parts, stealing little by little building material for the construction of a dacha - all these are types of a single ongoing crime... A continuing crime is qualified under an article or part of the Criminal Code as a single complex crime, the stages of which, although outwardly similar to independent completed ones crimes are not such. A continuing crime is considered completed before the planned goal is achieved.”
In practice, there are often cases when a person commits not one, but several homogeneous crimes, that is, there is a plurality of crimes in the form of a set, or a single complex (continuing) crime is committed, characterized by the fact that it forms one crime, the actions of the perpetrator are qualified according to one article of the Criminal Code of the Russian Federation, represent identical acts aimed at the same goal and united by a single intent.
At the same time, as noted by M.A. Podgrushny, in some cases, the artificial addition of monotonous criminal acts into a single crime can lead to a worsening of the position of the guilty person.
Some comments to the Criminal Code of the Russian Federation note that when an official receives several bribes, a combination of crimes occurs, each crime must be qualified independently (Part 1 of Article 17 of the Criminal Code of the Russian Federation). A set of crimes is formed by cases of simultaneous receipt by an official of bribes from several persons, if a separate action is (should be) committed in relation to each of the bribers. At the same time, individual actions in relation to each of the bribe-payers may be identical in their actual content (for example, imposing a non-custodial sentence on each of the bribe-payers). It is necessary to distinguish from a set of crimes a single ongoing crime, when a bribe is transferred in several stages for the performance or failure to perform actions that ensure the desired result for the bribe giver. The systematic receipt of material assets or benefits from the same bribe-payers for general patronage or connivance in their service should also be considered a single ongoing crime. Such a statement, according to the author, is somewhat contradictory. His main argument is quantitative indicator(the number of people giving a bribe), that is, in an objective criterion. However, this circumstance may not always be the basis for distinguishing between an aggregate and a single crime. For example, several persons, having a common interest, transfer a bribe to the same person, whose intent is to receive the entire amount from all persons to resolve the same issue.
The authors of another commentary on the Criminal Code of the Russian Federation note that when systematically transferring valuables and providing property-related services to an official for general patronage or connivance in the service, the court must determine whether these acts are united by the common intent of the bribe-giver. In the absence of signs of aggregation of crimes, such actions should be qualified as a single ongoing crime. The highest court, establishing uniformity in the application of judicial practice in cases of bribery, in the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of bribery and other corruption crimes”, indicates that the systematic receipt of bribes from the same bribe-giver for general patronage or connivance in service, if these actions were united by one intent, should be qualified as a single continuing crime. There is no totality of crimes in cases where a bribe is received or transferred from several persons, but for the commission of one action (inaction) in the common interests of these persons.
The simultaneous receipt, including through an intermediary, of a bribe from several persons, if in the interests of each of them the official commits a separate action (inaction), cannot be qualified as a single ongoing crime. What was done, under such circumstances, forms a set of crimes.
If the total value of property, property rights, or property services received by an official exceeds 25 thousand rubles, 150 thousand rubles or 1 million rubles, then the act can be qualified as receiving a bribe, respectively, in a significant, large and especially large amount only if the acceptance of all values represented episodes of a single ongoing crime (clause 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 9, 2013 No. 24).
As M.A. rightly notes. Podgrushny, when qualifying a set of episodes of bribery, it is necessary not only to be guided by the explanations of the Plenum of the Supreme Court of the Russian Federation, but also to evaluate in each specific case of the reality of life the actions of the bribe taker, taking into account as an objective criterion (several episodes of criminal activity, their similarity, a short period of time, place, method etc.), and subjective – the focus of intent on a single crime.
Federal Law of May 4, 2011 No. 97-FZ “On Amendments to the Criminal Code of the Russian Federation and the Code of the Russian Federation on Administrative Offenses in Connection with Improving Public Administration in the Field of Anti-Corruption” The Criminal Code of the Russian Federation was supplemented with Article 291.1 “Mediation in Bribery” " Supporting this legislative decision, K.V. Chashin notes that “the inclusion of this criminal law norm in the criminal legislation gave rise to a number of qualification problems requiring theoretical analysis.”
One of these problems is the distinction between physical mediation in bribery and bribery. The descriptive disposition of Part 1 of Article 291.1 of the Criminal Code of the Russian Federation, which establishes the basic composition of mediation in bribery, provides for two of its forms, long known to the theory of criminal law and judicial practice and referred to in the literature as “physical” and “intellectual” mediation. The problem of differentiation is that, firstly, both the physical intermediary and the bribe giver are directly involved in the process of delivering a bribe to the bribe-taking official with the only difference being that the bribe giver gives and the intermediary transfers illegal remuneration; secondly, the bribe giver like an intermediary, he may not pursue his own benefit from those actions (inactions) that an official must perform for a bribe, but transfer the latter in the interests of other persons. IN the latter case We are talking about a very difficult issue - the difference between physical mediation, in which a person acts on behalf of the bribe-giver, and bribery, when a person acts in favor of the persons he represents.
In the theory of criminal law, the following main criteria for distinguishing between an intermediary in bribery and a bribe giver have been developed: “belonging to the bribe” and “belonging to the interest.”
For example, V. Borkov notes that in order to solve the problem of distinguishing the intermediary from the bribe-giver, “interest should be considered as a primary characteristic. The intermediary’s motive, as a rule, is selfish, less often careerism, while the bribe-giver is directly interested in the official’s betrayal of the interests of power and service. I. Tkachev adheres to the same position, rightly emphasizing that the main feature that makes it possible to distinguish an intermediary from a bribe-giver is their interest in the commission or non-commitment of certain actions by an official.
Thus, many researchers are convinced that, unlike an intermediary, a bribe-giver, even acting on behalf of the person he represents, is always interested in the bribe-taker committing a certain act, therefore it is the certain behavior of the official that is the ultimate goal that the bribe-giver pursues when committing a crime, provided for in Article 291.1 of the Criminal Code of the Russian Federation.
In this case, one should agree with the opinion of P.S. Jani, who criticizes the above statement. P.S. Yani believes that the criterion of interest is too vague and proposes a more specific and much easier to establish criterion - the ownership of the property from which the bribe is transferred. According to the scientist, when distinguishing between the direct transfer of a bribe on behalf of the bribe-giver and the giving of a bribe to an official for actions (inaction) in the service in favor of an individual or legal entity represented by the bribe-giver, one should proceed from the fact that the intermediary transfers the bribe, acting on behalf of and at the expense of the property of the briber . Unlike an intermediary, a bribe-giver, who transfers a bribe for actions (inaction) in the service in favor of the person he represents, uses property belonging to him or illegally acquired by him as the subject of a bribe or to pay for property-related services provided to the official. Property transferred as a bribe can also be received by the bribe giver as a loan from a person who has become an intermediary in receiving or giving a bribe.
R. Sharapov and M. Moiseenko reasonably believe that the physical intermediary is not part of the beneficiaries who directly benefit from the official behavior of an official caused by a bribe. Only the bribe-giver himself or the persons represented by him are recognized as such. Another, indirect interest of the intermediary in the official behavior of the bribe-taker, dictated by motives of nepotism, self-interest and others, cannot be ruled out. For example, an intermediary who is a close relative of the bribe-giver, due to this circumstance, may be interested in resolving the bribe issue in favor of the bribe-giver, or the material remuneration of the intermediary promised to him by the bribe-giver will depend on the commission of actions (inaction) on the part of the bribe-taker. However, such an interest of a physical intermediary does not affect the qualification of his actions, since the direct benefit from the official behavior of an official caused by a bribe, in the form of the emergence, change or termination of rights and obligations, belongs not to the intermediary, but to the bribe-giver or the person he represents.
A physical intermediary cannot combine the role of a person represented by the bribe-giver and, thus, pursue personal benefit from actions (inactions) caused by the bribe transferred, since in this case he turns into a bribe-giver. On the contrary, by virtue of Part 1 of Article 291.1 of the Criminal Code of the Russian Federation, a physical intermediary transfers a bribe on behalf of the bribe giver, including one acting in someone else’s interest, and the bribe giver gives a bribe, including through an intermediary. This means that the primary source of material enrichment for the bribe-taker is the bribe-giver as the owner of the illegal reward, and not the intermediary for whom the reward is someone else’s.
Thus, a physical intermediary transferring a bribe on behalf of the bribe giver is a person to whom the transferred subject of the bribe does not belong by right of ownership or due to any other circumstances, and who does not pursue personal benefit in the form of the emergence, change or termination of rights and obligations from those actions (inaction) of an official that are caused by the bribe given by him. In the absence of at least one of these signs, the person who transferred the bribe to the bribe-taker or his intermediary should be recognized not as an intermediary, but as a bribe-giver. The difference between a physical intermediary in bribery and a bribe-giver is based on these interrelated provisions.
Thus, the most complex issues of qualification of bribery are highlighted, causing difficulties and errors in law enforcement, as well as discussions in the theory of criminal law, these include next questions: distinguishing between receiving a bribe and fraud; problems of qualification of a set of episodes of bribery; distinguishing between physical mediation in bribery and bribery. At the same time, there are other problematic issues that require deep scientific understanding within the framework of a separate study.
The problems of applying the norms of criminal law on liability for bribery mainly come down to three provisions:
Firstly, this is a correct, uniform interpretation of the characteristics of the relevant crimes, taking into account their relationship with other laws, by-laws and taking into account the clarifications of the Plenum of the Supreme Court of the Russian Federation.
Secondly, there are difficulties in comparing the actual signs of the committed act with the specified signs of bribery.
Thirdly, there are difficulties associated with distinguishing such crimes from each other, as well as making a distinction from other related crimes.
Bibliography:
- Borkov V. New edition of the rules on liability for bribery: problems of application / V. Borkov // Criminal law. - 2011. - No. 4. - P. 12.
- Bochkarev S.A., Radchenko O.V. Is it still fraud or bribery? / S.A. Bochkarev, O.V. Radchenko // Legality. - 2013. - No. 1. - P. 35.
- Gaukhman L.D. Qualification of crimes: law, theory and practice / L.D. Gauchman. 3rd ed., revised. and additional M.: JSC "Center YurInfoR", 2005. - P. 18.
- Case “Seliverstov v. Russian Federation” (complaint No. 19692/02): judgment of the European Court of Human Rights [dated Aug. 25. 2008] // Russian justice. 2009. No. 4.
- Case “Abramyan v. Russian Federation” (complaint No. 10709/02): judgment of the European Court of Human Rights [dated 9 Oct. 2008] // Bulletin of the European Court of Human Rights. 2009. No. 8.
- Convention for the Protection of Human Rights and Fundamental Freedoms: [concluded in Rome on November 4 1950 (as amended on May 13, 2004) // Collection of legislation of the Russian Federation. - 2001. - No. 2. - Art. 163.
- Koshaeva T.O. Judicial practice in criminal cases of theft of other people's property / T.O. Koshaeva // Commentary on judicial practice / ed. K.B. Yaroshenko. M.: Legal. literature, - 2012. - Issue. 17. - pp. 225-226.
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Introduction
In modern Russian society bribery is one of the most common and dangerous species crimes against state power, interests of public service and service in local governments. The Criminal Code of the Russian Federation provides for liability for receiving a bribe (Article 290), giving a bribe (Article 291) and mediation in bribery (Article 291.1). They represent the most acute and, unfortunately, quite common forms of corruption. Committing these crimes:
· leads to serious violations of the constitutional rights and freedoms of citizens
· causes a disruption in the normal functioning of government and management structures
· creates among a significant number of people the illusion that it is possible to resolve all issues, get what they want, save themselves or others from criminal and other legal liability through illegal bribery of officials, including persons holding public positions
Causes serious material and moral damage
This list is not exhaustive, but it already shows how relevant the problem of combating bribery is.
One of the priority areas of modern criminal policy is the improvement of legal mechanisms to combat corruption
1. History of bribery in the Soviet period. Responsibility for bribery in modern Russia
With the change of state and social order and forms of government of the Russian state, with the formation of the USSR, bribery became even more widespread than it was in Russian Empire. After the revolution of 1917, corruption struck the majority of officials vested with administrative and power powers.
In 1918, the Council of People's Commissars issued the Decree “On Bribery.” He became the first in Soviet Russia legal act, which provided for criminal liability for bribery. The decree, first of all, determined the subject of this crime. These were recognized as persons “in the state or public service,” such as: officials of the Soviet government, members of factory committees, house committees, boards of cooperatives and trade unions and similar institutions and organizations or employees in such. The decree, therefore, quite broadly defined the circle of persons responsible for receiving a bribe, including any employee. Functionaries of a number of public organizations could also be found guilty. For the first time in Soviet legislation the concept of “official” appeared. The essence of the crime was defined as the acceptance of a bribe for the performance of an action within the scope of the duties of the subject, or for assistance in the performance of an action that constitutes the responsibility of an official of another department. Along with the recipients of a bribe, persons guilty of giving a bribe, instigators, accomplices and all employees involved in giving a bribe were also subject to punishment. At the same time, the same punishment was decreed for all these types of criminal activity: imprisonment for a term of at least five years, combined with forced labor for the same period. As circumstances enhancing the punishment of the bribe-taker, the decree established: a) special powers of the employee; b) violation by an employee of his duties; c) extortion of a bribe. At the same time, it was emphasized that if a crime is committed by a person belonging to the propertied class, who uses a bribe to maintain or acquire privileges associated with property rights, then he is sentenced “to the most difficult, unpleasant and forced labor, and all his property is subject to confiscation.” The Decree “On Bribery” had retroactive force, however, according to Art. 6, those who gave a bribe before the decree was issued, but within three months from the date of its publication reported this crime to the judicial authorities, were exempt from criminal prosecution. Volzhenkin B.V. “Bribery in the history of Soviet criminal legislation (1918-1927)” journal “Jurisprudence” / 1993 / No. 2. In addition, Article 3 of this decree stated that an attempt to receive or give a bribe is regarded as a completed crime and is punished accordingly .
The Decree of the Council of People's Commissars "On the fight against bribery" of 1921 makes some changes and clarifications to the previous decree of 1918. For example, if the person who gave the bribe promptly reports the bribe-extortionist or assists in solving a bribery case, then he is not subject to punishment. It also introduces liability, along with receiving a bribe, for mediation in bribery and for harboring bribe-takers. It is clarified that a bribe could be received “in any form, a bribe for performing in the interests of the bribe giver any action within the scope of their official duties.” Sanctions for committing this crime are also being tightened; confiscation of property is being added to imprisonment and forced labor.
In 1922, at the 3rd session of the IX Congress of Soviets, the Criminal Code of the RSFSR was adopted. A special part of the code in Chapter II, Official Crimes, provided for liability for receiving and giving bribes, mediation in bribery and provoking a bribe.
Initially, Article 114 combined crimes such as receiving and giving bribes and mediation in bribery.
When receiving a bribe, the subject was defined as special, that is, persons in state, union or public service bear criminal liability. In this crime, a person personally or through intermediaries receives a bribe in any form for the performance or non-performance in the interests of the giver of any action within the scope of the official duties of this person. In addition, aggravating circumstances were provided:
a) special powers of the official who accepted the bribe
b) violation of his duties of service
c) allowing extortion or blackmail
As for giving a bribe, the text of the code did not directly state that this act is a crime, but the legislator indicated that the person who gave the bribe is not punished only if he promptly declared the extortion of a bribe or assisted in solving a bribery case. . Accordingly, otherwise, giving a bribe was a crime.
A little later, in the same 1922, the Decree of the All-Russian Central Executive Committee, the Council of People's Commissars of the RSFSR “On changing the text of Art. 114 of the Criminal Code." As a result of these changes to Art. 114 of the Criminal Code of 1922 was divided into two articles - Art. 114 and art. 114-A. Article 114 of the Criminal Code of the RSFSR provided for liability for simple (part 1 of article 114) and qualified (part 2 of article 114) receipt of a bribe. The list of circumstances aggravating the guilt of an official who received a bribe was also added:
a) causing or the possibility of causing material damage to the state as a result of a bribe (clause “b” of Article 114);
b) the presence of a previous conviction for a bribe, or repeated receipt (clause “c” of Article 114).
Art. 114-A provided for liability for giving a bribe, mediation in bribery, providing any assistance or failure to take measures to counter bribery.
With regard to bribery, the legislator considered it necessary to establish an independent norm - Art. 115 Provocation of a bribe. In this article, provocation of a bribe was defined as the deliberate creation by an official of the situation and conditions that lead to the offer of a bribe, for the purpose of subsequently exposing the bribe giver. Provoking a bribe is characterized by a deliberate form of guilt, that is, the knowledge of the perpetrator that by creating such an environment he can induce another to bribe, and the desire to do so. A careless form of guilt is excluded, since the law requires a specific purpose for the activity of the perpetrator. The crime was considered completed from the moment this situation or appropriate conditions were created. If the criminal actions of the perpetrator were suspended during the activities to create a suitable environment and conditions, then in this case the perpetrator was charged with attempted incitement to give a bribe. These acts were punishable by imprisonment with strict isolation for a period of at least three years or capital punishment. All in the same year, 1922, the People's Commissar of Justice and Prosecutor of the Republic D.I. Kursky sent “to all people's courts, revolutionary tribunals and prosecutorial supervision officials” Circular No. 97 “On the scope of the concept of a bribe.” The circular suggested that a whole range of actions should be “subsumed under the concept of a bribe,” for example:
1) receipt by an official who carries out any control and audit functions in a given institution or enterprise of any types of material benefits not provided for by law from the institutions reporting to him, either one-time or periodically;
2) receiving illegally part-time work in two government institutions or at least one state and the other private, in cash or other form of remuneration or allowance, if it is established that both of these institutions are in a relationship of mutual services, and if it is established that this person took part personally or through intermediaries in the performance of these operations or services;
3) receipt by the same persons and in the same cases of “commission”, “reward”, “organizational” or “for assistance”.
Various forms of illegal part-time work, qualified as bribery, were set out in more detail in the Resolution of the Council of People's Commissars of the RSFSR dated December 21, 1922, which approved the “Temporary Rules on Service in State Institutions and Enterprises.”
The transition from the policy of war communism to the NEP was accompanied by a significant increase in bribery. Under these conditions, the People's Commissariat of Justice sends Circular No. 86 of September 25, 1922, which announces a judicial punitive campaign to combat bribery. It was proposed to create special chambers in people's courts to consider major cases of bribery, and in tribunals to consider cases in an abbreviated manner without admitting the parties and calling the least number of witnesses.
In 1926, another criminal code of the RSFSR was adopted, which came into force in 1927. This code as a whole somewhat softened the liability for official crimes, including bribery.
Article 117 provided for liability for the receipt of a bribe by an official for the performance or non-performance in the interests of the giver of any action that the official could or should have performed solely as a result of his official position. This article specifically stated that the recipient of the bribe is an official. In the note to Article 109 - Abuse of power or official position, the concept of an official was given, in principle the same as in the 1922 code:
“Officials are understood to be persons holding permanent or temporary positions in a state (Soviet) institution, enterprise, as well as in an organization or association, who are entrusted by law with certain duties, rights and powers in the implementation of economic, administrative, professional or other national tasks” . However, a clause has appeared (note 2 to Article 109), according to which officials of trade unions are liable for malfeasance only if they are brought to justice by resolution of the trade union.
When describing the signs of the crime of “taking a bribe,” a small but significant clarification was made to the characteristics of the actions for the performance or non-performance of which the official received a reward. If previously these were actions within the scope of a person’s official duties, the new version of the relevant norm (Article 117) is formulated more broadly: it covers actions “that an official could or should have committed solely as a result of his official position.”
The infliction (or the possibility of infliction) of material damage to the state as a result of a bribe was excluded from the qualifying criteria for receiving a bribe, but the presence of a previous conviction for a bribe or repeated receipt of a bribe was added. The fundamental innovation was that persons guilty of taking a bribe were under no circumstances exempted from liability for the crime.
In addition to receiving a bribe, giving a bribe, mediation in bribery (Article 118) and provoking a bribe (Article 119) were criminally punishable.
At the same time, in contrast to the Criminal Code of 1922, criminal prosecution under Art. 119 also occurred for provoking the receipt of a bribe for the purpose of subsequently incriminating the person who received the bribe.
The note to Article 118 provided for the possibility of exemption from criminal liability in two cases:
1) if the person immediately after giving the bribe voluntarily reported what happened (that is, voluntary refusal to commit a crime)
2) or they were subject to extortion of a bribe by an official.
The sanctions under these three articles provided for a fairly small punishment: for receiving a bribe - imprisonment for up to two years, for giving a bribe and mediation in bribery - imprisonment for up to five years, for provoking a bribe - imprisonment for up to two years.
Only in aggravating circumstances was the punishment severe - imprisonment in strict isolation for a period of at least two years, with an increase up to execution by execution with confiscation of property. However, in 1927, by the resolution of the All-Russian Central Executive Committee and the Council of People's Commissars “On changes to the Criminal Code in pursuance of the Manifesto of the 2nd session of the Central Executive Committee of the USSR of the IV convocation,” the possibility of using execution for taking a bribe was excluded.
Legislation on liability for bribery was actively discussed in the literature of the 20s. The very concept of bribery (the subject of a bribe, the nature of actions performed for a bribe, and the problem of their conditionality with a bribe), the subject of receiving a bribe, the content of qualifying features and circumstances entailing exemption from liability, the problem of liability when provoking a bribe, and much more were discussed. Already in those years, problems arose and were discussed that investigative and judicial practice and criminal law theory continue to deal with in our time. In particular, this is the question of the possibility of recognizing bribery in cases where material assets, a “gift”, are transferred to an official, and any reciprocal actions are not specified.
On October 27, 1960, the Supreme Council of the RSFSR adopted a new Criminal Code, which came into force on January 1, 1961. Criminal liability for bribery arises in accordance with it under articles 173 and 174. These articles were similar to articles 117 and 118 of the Criminal Code of the RSFSR of 1926 and did not change the content of the legislation on taking a bribe, giving a bribe and mediation in bribery. Provocation of a bribe as a criminal act was excluded. The largest regulatory act regulating criminal liability for bribery after the adoption of the Criminal Code of 1960 is the Decree of the Presidium of the Supreme Soviet of the USSR of February 20, 1962 “On strengthening criminal liability for bribery.” The Presidium of the Supreme Soviet of the USSR stated that “bribery is one of the shameful and disgusting relics of the past.” On its basis, criminal legislation regulating liability for bribery was adopted, amended and supplemented. Sanctions for this type of crime provided for more stringent liability - the term of imprisonment was doubled, moreover, the death penalty was introduced for accepting a bribe under especially aggravating circumstances.
I consider it necessary to note that Russian legislation of the Soviet period did not distinguish between the existing types of bribery. A general rule was formulated regarding liability for receiving a bribe in any form. The disposition of the norm included an act for both performance and non-performance in the interests of the giver of actions using the official’s official position (Criminal Code of the RSFSR 1922, 1926 and 1960).
In accordance with the decisions of the CPSU Central Committee on measures to combat unearned income, the Decree of the Presidium of the Supreme Soviet of the RSFSR dated May 28, 1986 “On introducing amendments and additions to some legislative acts of the RSFSR”, the content of Art. 173 of the Criminal Code of the RSFSR. The article began to have three parts. The sanctions in part one of this article were reduced. The qualifying signs, depending on their social danger, were divided into parts two and three. Part two contains the following qualifying criteria:
a) receipt of a bribe by prior conspiracy by a group of persons;
b) repeated receipt of a bribe;
c) receiving a bribe associated with extortion;
d) receiving a large bribe.
The qualifying features of the third part included:
a) receipt of a bribe by a person holding a responsible position;
b) receipt of a bribe by a person previously convicted of bribery;
c) receiving a bribe on an especially large scale.
For receiving a bribe under qualifying circumstances provided for in part three of Art. 173 of the Criminal Code of the Russian Federation, in the presence of other particularly aggravating circumstances, the legislator provided for the highest penalty - the death penalty.
By the Decree of the Supreme Soviet of the USSR “On the implementation of the Fundamentals of Criminal Legislation of the USSR and the Republics”, from July 24, 1991, the death penalty for taking a bribe under aggravating circumstances was abolished on the territory of the USSR. By the Law of the RSFSR of December 5, 1991, this penalty was excluded from the sanction of Art. 173 part 3 of the Criminal Code of the Russian Federation.
Thus, we see the gradual appearance in the law of those concepts and features that are characteristic of modern legislation.
Bribery in Russia flourished during the country's transition to commodity-money relations in the early 90s. The events taking place in Russia in the 90s required changes in all areas of law, and were no exception for criminal legislation.
On May 24, 1996, the State Duma adopted a new Criminal Code of the Russian Federation. In 2000, Resolution of the Plenum of the Supreme Court No. 19 “On judicial practice in cases of bribery and commercial bribery” was adopted, which is an addition to the norms of the Criminal Code. Over the past years, changes have been made to both the code and the bribery ordinance. In the Criminal Code of the Russian Federation, an independent crime for mediation in bribery was introduced in 2011 (Article 291.1 of the Criminal Code of the Russian Federation).
Currently, liability for bribery is provided for:
· receipt by an official, a foreign official or an official of a public international organization personally or through an intermediary of a bribe in the form of money, securities, other property, or in the form of illegal provision of services of a property nature, the provision of other property rights for performing actions (inaction) in favor of the bribe-giver or the persons represented by him, if such actions (inaction) are part of the official powers of the official or if, by virtue of his official position, he can contribute to such actions (inaction), as well as for general patronage or connivance in the service (Article 291);
· giving a bribe to an official, a foreign official or an official of a public international organization personally or through an intermediary (Article 291);
· mediation in bribery, that is, the direct transfer of a bribe on behalf of the bribe giver or bribe recipient, or other assistance to the bribe giver and (or) bribe recipient in reaching or implementing an agreement between them on receiving and giving a bribe (Article 291.1).
delimitation bribery liability qualifying
2. Criminal legal characteristics of bribery
2.1 Object, subject and subject of bribery
Object as an element of a crime.
The specific object of the crime of receiving and giving a bribe is the activities of public authorities carried out in accordance with the law.
The generic object of these crimes is defined in the code as a set of social relations that ensure the proper functioning of state power, related to the interests of public service and service in local governments.
The direct object of receiving a bribe is social relations that ensure the creation and normal functioning of the state apparatus, local government bodies, government agencies and their authority. The direct object of giving a bribe also coincides with that of receiving a bribe.
It should be clarified that the authorities should be understood as the power structures established by law both at the federal level and at the level of the subject and local government.
The interests of the public service are regulated by the Federal Law of July 27, 2004 N 79-FZ (as amended on November 15, 2012) “On State civil service Russian Federation"
Service in local government bodies is regulated by Federal Law dated October 6, 2003 N 131-FZ (as amended on October 16, 2012 N 173-FZ) “On general principles organization of local self-government in the Russian Federation".
The subject of a bribe, as well as the object, is a necessary feature of these crimes. The subject of a bribe is any material assets and services of a material nature transferred (rendered) to an official for performing official actions (inaction) in the interests of the giver.
The subject of a bribe, as stated in the disposition of Article 290, along with money, securities and other property, can be services of a property nature and property benefits.
By money (currency), the law understands both Russian and foreign banknotes in circulation, i.e. in official currency circulation at the time of the crime. Ancient Russian and foreign coins that are not a means of payment, but have one or another numismatic value, money in the sense of Art. 290 of the Criminal Code of the Russian Federation are not and should refer to the subject of a bribe in the form of “other property”.
The concept of a security is defined in the Civil Code of the Russian Federation. This is a document certifying, in compliance with the established form and required details, property rights, the exercise or transfer of which is possible only upon presentation. Securities include government bonds, bills of exchange, checks, deposit and savings certificates, bearer bank savings books, bills of lading, shares, valuable privatization papers and other documents.
“Other property” should be understood as any material assets that have an exchange value, including currency values in the form of debt obligations denominated in foreign currency, precious metals, for example, gold, silver, platinum and platinum group metals - palladium, iridium, rhodium, ruthenium and osmium in any form and condition, with the exception of jewelry and other household products, as well as from scrap of such products, natural gems in raw and processed form, as well as pearls, with the exception of jewelry and other household products made from these stones and scrap of such products.
Services of a property nature - provided free of charge, but subject to payment, for example, the provision of vouchers, travel tickets, apartments, the provision of legal, dental services, etc. etc. The service consists of performing certain actions that may not have a material expression, but these services can be assessed in monetary terms.
The concept of property benefits is broader than the concept of services. Benefits can be defined in a narrow and broad sense. In a narrow sense, it is defined in the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of bribery and commercial bribery”: “property benefits should be understood, in particular, as an understatement of the value of the transferred property of privatized objects, a reduction in rental payments, interest rates for using bank loans."
Benefit in a broad sense involves obtaining various benefits for oneself, advantages as a result of the provision of services and performance of work, as well as other actions of a material nature. “The provision of services and the performance of work are actions whose economic results differ depending on the form in which the result of this activity is expressed, as well as depending on whether its positive result can be guaranteed.” All listed benefits and services must receive a monetary value in the verdict.
Both movable and immovable things can be considered as a bribe. It does not matter whether a specific thing can be in civil circulation, withdrawn from it or limited by law. In the last two situations, additional qualifications will be required under the relevant articles of the Criminal Code of the Russian Federation.
Both overt and covert (disguised, veiled) bribery entails criminal liability. A hidden bribe is given, for example, under the guise of gifts to relatives. Therefore, it is necessary to keep in mind that property benefits, money, and other material assets can be provided, material services provided not only to the official himself, but also to his relatives and friends. In this case, a prerequisite for criminal liability is the knowledge and consent of the official to such actions. A hidden bribe can be expressed in the provision of a lucrative job to an official or his relatives, payment of inflated royalties, inflated payments for lectures, consultations, loss in a gambling game, etc. Covert bribes make up only a very small portion of detected bribes, which indicates not only their comparative rarity, but also the difficulty of their investigation.
2.2 Subject of bribery
Receiving a bribe and giving a bribe are independent crimes, therefore the subjects are different.
The subject of receiving a bribe is special. The subject of receiving a bribe is an official, a foreign official and an official of a public international organization.
Officials are persons who permanently, temporarily or by special authority exercise the functions of a representative of government or perform organizational, administrative, administrative and economic functions in state bodies, local governments, state and municipal institutions, state corporations, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.
Performing the listed functions under a special authority means that a person performs certain functions assigned to him by law (police trainees, prosecutors, etc.), a regulatory act, an order or instruction of a superior official or an authorized body or official. Such functions can be carried out for a certain time or one-time, or combined with the main work (people's assessors and jurors, etc.).
Representatives of government should include persons exercising legislative, executive or judicial power, as well as employees of state, supervisory or control bodies vested, in accordance with the procedure established by law, with administrative powers in relation to persons who are not officially dependent on them, or with the right to make decisions that are binding. for execution by citizens, as well as organizations, regardless of their departmental subordination (for example, members of the Federation Council, deputies of the State Duma, deputies of legislative bodies of state power of the constituent entities of the Russian Federation, members of the Government of the Russian Federation and executive authorities of the constituent entities of the Russian Federation, judges of federal courts and magistrates , employees of the prosecutor's office, tax, customs authorities, bodies of the Ministry of Internal Affairs of the Russian Federation and the FSB of the Russian Federation, public service auditors, state inspectors and controllers, military personnel in the performance of their duties to protect public order, ensure security and other functions, vested with appropriate powers, in the performance of which military personnel are vested with administrative powers).
Foreign official means any appointed or elected person holding any position in the legislative, executive, administrative or judicial body of a foreign state, and any person performing any public function for a foreign state, including for a public agency or public enterprises.
An official of a public international organization means an international civil servant or any person who is authorized by such an organization to act on its behalf.
The subject of the crime provided for in Article 290 of the Criminal Code of the Russian Federation should be recognized, if there are grounds for this, such an official who, although he did not have the authority to commit an action (inaction) in favor of the bribe-giver or the persons represented by him, but by virtue of his official position could facilitate the execution of such an action (inaction) by another official or received a bribe for general patronage or connivance in the service.
Employees of state bodies and local self-government bodies, state and municipal institutions who perform professional and technical duties not related to organizational, administrative or administrative functions cannot be held liable under Article 290 of the Criminal Code of the Russian Federation.
The subject of giving a bribe is a general person, that is, a sane person who has reached the age of sixteen and who wants to achieve the desired results for himself or his family and friends by giving a bribe. Individuals, persons performing managerial functions in a commercial or other organization, and officials can act as bribe givers, which does not matter for the qualification of giving a bribe.
An official or a person performing managerial functions in a commercial or other organization, who suggested that an employee subordinate to him in service, in order to achieve the desired action (inaction) in the interests of his organization, give a bribe to an official, is liable under the relevant part of Article 291 of the Criminal Code of the Russian Federation as a perpetrator of a crime, and the employee who carried out his instructions is considered an accomplice in giving a bribe.
2.3 The objective side of bribery
The objective side of receiving a bribe, liability for which is provided for in Article 290, consists in the receipt by an official personally or through an intermediary of the subject of the bribe for one of the following types of official behavior:
1) for actions (inaction) in favor of the bribe-giver or persons represented by him, included in the official powers of the official (Part 1 of Article 290);
2) for actions (inaction) in favor of the bribe-giver or persons represented by him, which are not included in the official powers of the official, but the latter, by virtue of his official position, can facilitate such actions (inaction) (Part 1);
3) for general patronage or connivance in the service of an official to the bribe-giver or persons represented by him (Part 1);
4) for illegal actions (inaction) of an official in favor of the bribe-giver or persons represented by him (Part 3).
The peculiarity of this crime is that a bribe can be received both for illegal actions (inaction) of an official, and for actions (inaction) that are directly within his competence, and the official had the right to perform in the prescribed manner in favor of the bribe giver or the persons they represent, take one or another action, or, on the contrary, not take any measures.
The actions (inaction) of an official within his official powers should be understood as actions (inactions) that he is entitled to perform in accordance with his official powers and which formally comply with the requirements of the law, other regulations and other legal acts. In this case, giving a bribe is due, for example, to the desire of the bribe giver to speed up the official’s adoption of the relevant decision or to influence the choice (within the competence or discretion of the official) of the most favorable decision for himself or the persons represented, or other similar motives.
Unlawful actions (inaction) of an official, in relation to Part 3 of Article 290 of the Criminal Code of the Russian Federation, should be understood as unlawful actions (inaction) committed using official powers in favor of the bribe-giver or persons represented by him, as well as actions (inaction) containing signs of a crime or other offenses (falsification of evidence in a criminal case, failure to draw up a protocol on an administrative offense when this is required by law, making a decision on the basis of deliberately forged documents, entering information into documents that does not correspond to reality, etc.).
General patronage in the service includes, for example, actions related to undeserved (unjustified) encouragement, extraordinary promotion, and other acts of behavior that are not objectively caused by necessity.
Connivance in service includes the failure by an official to take measures for omissions or violations in the official activities of the briber or the persons he represents, or failure to respond to his unlawful actions.
Receiving a bribe is a formal crime and is considered completed from the moment the bribe recipient accepts at least part of the transferred values (services provided).
The objective side of bribery does not include those actions that characterize the subject of bribery, for the commission of which, in fact, a bribe is given. To qualify an act as a completed receipt of a bribe, it is enough that the bribe was received for such actions, and it does not matter whether or not these actions were actually performed. It should be borne in mind that a bribe - reward is actually possible only after such actions have been completed.
The objective side of the crime provided for in Article 291 is expressed in giving a bribe only to an official personally or through an intermediary. Giving a bribe can be expressed in the illegal delivery, transfer of material assets or provision of benefits of a property nature to an official personally or through an intermediary for the commission of actions (inactions) included in the official powers of the official, in favor of the bribe-giver or persons represented by him, or for the official’s assistance in by virtue of the position he occupies, committing actions (inaction) by another official, or for general patronage or connivance in the service of the bribe-giver or persons represented by him (Part 1 of Article 291 of the Criminal Code), as well as for illegal actions (inaction) of an official in the service (Part 2 Article 291 of the Criminal Code).
By giving a bribe, a subject can induce an official to commit a knowingly illegal action (inaction) in the service (Part 2 of Article 291 of the Criminal Code), which in itself is a crime. In these cases, he must be held responsible not only for giving a bribe, but also for complicity (incitement) in the crime of an official.
Giving a bribe is also a formal crime, that is, it is recognized as a completed act from the moment the official accepts at least part of the material assets, if the bribe is transferred in several stages. Leaving, for example, money in an envelope on an official's desk or in his pocket or in another place in his office, which, however, was not accepted by him, constitutes an attempt to give a bribe.
According to Article 291.1 - mediation in bribery - the objective side includes:
· direct transfer of a bribe on behalf of the bribe giver or bribe recipient;
· other assistance to the bribe giver and (or) bribe taker in achieving or implementing an agreement between them on receiving and giving a bribe.
Optional signs of the objective side of these crimes do not affect qualifications.
2.4.The subjective side of bribery
The subjective side of receiving a bribe is characterized by direct intent, as a form of guilt. When receiving a bribe, the guilty person realizes that the property benefit he received is illegal and is aimed at performing certain actions within his competence in favor of the bribe-giver or the persons he represents and wants to receive it. To qualify an act as bribery, it does not matter whether the person intended at the time of receiving the bribe to perform the action for which the bribe was given. In jurisprudence, this issue is controversial. However, when receiving a bribe for performing a specific action that the bribe giver does not intend to perform, the bribe giver realizes that he is receiving a bribe for performing this particular action, and wants to receive the bribe. The desire to commit an action is not part of the intent when committing this crime. The fact that an official, receiving a bribe, takes possession of the property of the bribe-giver by deception does not exclude liability for taking a bribe as a more dangerous crime than fraud. In this case, the act fully affects the target of the attack and the bribe-taker’s dishonesty cannot exclude criminal prosecution for taking a bribe.
Since the motives and purposes of taking a bribe are outside the scope of the crime, they are not mandatory features of this crime, are not included in the basis of criminal liability, do not affect the qualification of the crime, but are essential for determining the degree of public danger of the act and the person who committed it, and can also be taken into account when assigning the type and amount of punishment as circumstances mitigating or aggravating criminal liability and punishment.
In most cases of receiving a bribe, the motive is selfish. The motive helps answer the question of why the bribe-taker behaves antisocially and commits acquisitive crimes. The Supreme Court of the Russian Federation (in the Resolution of the Plenum of the Supreme Court of the Russian Federation) sees the selfish motive in bribery in the desire of an official to enrich either himself or people close to him, among which are legal entities, however, the Supreme Court does not include legal entities, just as it does not include legal entities among close criminal procedural law, which reveals the concept of a close person. Obtaining the opportunity to dispose of property benefits, regardless of whether a person becomes the actual owner of these benefits for some time, should be regarded as the acceptance of property benefits by the official himself.
The goals of receiving a bribe can be very diverse. For example, a perpetrator, when committing a crime, strives by using his official position to achieve a high financial position, solve his narrow proprietary and personal problems, strengthen clan and corruption ties, etc. The motives and purposes of receiving a bribe also indicate direct intent to commit this crime.
The subjective side of the crime provided for in Article 291 of the Criminal Code of the Russian Federation is characterized by guilt in the form of direct intent. The person realizes that he is giving a bribe to an official for the commission of certain actions (inaction), for facilitating their commission by other persons, or for general patronage or connivance in the service, and desires this. If the subject is in good faith mistaken about the grounds for the transfer, believing that it is not a reward, or not realizing its illegality, there is no element of bribery.
The motives for giving a bribe and the goals that the bribe-giver achieves with the help of a bribe may be different. These are selfish motives and personal motives, the desire to circumvent the law, to be freed from responsibility, the desire to thank the official for the decision he made that satisfies the interests of the bribe-giver, etc. However, a bribe is always given for official actions (inaction) of an official in the interests of the bribe-giver himself or the individuals or legal entities he represents.
3. Features of qualification of bribery
3.1 Qualifying signs of bribery
The general principles of sentencing, in addition to the social danger of the crime, the identity of the perpetrator, also indicate the need to take into account aggravating circumstances. They make it possible to judge the degree of social danger of a crime, the identity of the perpetrator, and thereby individualize the punishment for each specific case.
According to Part 2 of Article 290 of the Criminal Code of the Russian Federation, the qualifying feature is the receipt by an official, a foreign official or an official of a public international organization of a bribe in a significant amount. The note to this article states that a significant amount of a bribe in this article, Articles 291 and 291.1 of the Criminal Code of the Russian Federation is recognized as the amount of money, the cost of securities, other property, property services, other property rights exceeding twenty-five thousand rubles.
Part 3 of this article provides for liability for the receipt by an official, a foreign official or an official of a public international organization of a bribe for illegal actions (inaction). Illegal actions (inaction) of an official should be understood as unlawful actions (inaction) committed using official powers in favor of the bribe-giver or persons represented by him, as well as actions (inaction) containing signs of a crime or other offense (falsification of evidence in a criminal case, failure to draw up a protocol about an administrative offense, when this is mandatory by law, making a decision on the basis of knowingly forged documents, entering information into documents that does not correspond to reality, etc.). Thus, from the meaning of the law it follows that the term “illegal” means the following.
Firstly, accepting a bribe for performing actions that go beyond the authority of an official, but which he could only perform due to his official position. These actions may constitute a misdemeanor, but they are not a crime. In this case, the perpetrator is liable only under Part 3 of Art. 290 of the Criminal Code of the Russian Federation.
Secondly, actions of an official committed contrary to the interests of the service, which constitute a crime (for example, abuse of official powers, official forgery). In this case, the act must be classified as a set of crimes. The resolution of the Plenum notes that 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 3 of Art. 290 of the Criminal Code and the corresponding article of the Code.
Particularly qualifying signs of receiving a bribe include the commission of an act provided for in Parts 1 - 3 of Art. 290 of the Criminal Code of the Russian Federation 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 (Part 4 of Article 290 of the Criminal Code of the Russian Federation).
Of all officials, the law distinguishes three categories, which, due to the special responsibility of their official position, bear increased criminal liability:
1) persons holding public office in the Russian Federation;
2) persons holding public office in a constituent entity of the Russian Federation;
3) persons who are heads of local government bodies.
The note to Article 285 provides an explanation.
In the articles of this chapter and other articles of this Code, persons holding public positions in the Russian Federation mean persons holding positions established by the Constitution of the Russian Federation, federal constitutional laws and federal laws for the direct execution of the powers of state bodies.
Persons holding public office in the Russian Federation include: the President of the Russian Federation, the Chairman of the Government of the Russian Federation, chairmen of the chambers of the Federal Assembly of the Russian Federation, heads of legislative and executive authorities of the constituent entities of the Russian Federation, deputies, ministers, judges, deputy chairmen of the Government of the Russian Federation, Ambassador Extraordinary and Plenipotentiary, Prosecutor General , Secretary of the Security Council, Commissioner for Human Rights, Chairman of the Accounts Chamber and his deputies, auditors of the Accounts Chamber of the Russian Federation, Chairman of the Central Bank of the Russian Federation, etc.
In the articles of this chapter and other articles of this Code, persons holding public positions in the constituent entities of the Russian Federation mean persons holding positions established by the constitutions or charters of the constituent entities of the Russian Federation for the direct execution of the powers of state bodies.
There is no single list of government positions in the constituent entities of the Russian Federation, because This issue is resolved by each subject independently.
Civil servants and employees of local self-government bodies who are not classified as officials bear criminal liability under the articles of this chapter in cases specifically provided for by the relevant articles.
It seems unfounded that the legislator in the note to Art. 285 of the Criminal Code of the Russian Federation, having given separate definitions of persons holding a public office of the Russian Federation and public office of the constituent entities of the Russian Federation, does not disclose the concept of the head of a local government body. In accordance with the Federal Law “On the General Principles of the Organization of Local Self-Government in the Russian Federation,” the head of a local government body is an elected official who heads the activities for the implementation of local self-government in the territory of the municipality. The head of the municipality is elected by citizens living on the territory of the municipality or by a representative body from among its members. It is endowed with its own competence to resolve issues of local importance in accordance with the charter of the municipality. The name of the head of a local government body and the terms of his powers are determined by the charter of the municipality.
Paragraph “a” of Part 5 of Art. 290 of the Criminal Code of the Russian Federation provides for liability for receiving a bribe by a group of persons by prior conspiracy or by an organized group.
According to paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, a bribe or the subject of commercial bribery should be considered received by prior conspiracy by a group of persons if the crime involved two or more officials or two or more persons performing managerial functions in a commercial or other organization, who agreed in advance about the joint commission of this crime using their official position. It does not matter what amount each of these persons received.
In accordance with the law (Article 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. That is, an organized group may include persons who are not officials or do not perform managerial functions in a commercial or other organization, who have previously united to commit one or more crimes. If there are grounds for this, they are liable in accordance with part four of Article 34 of the Criminal Code of the Russian Federation as organizers, instigators or accomplices of crimes provided for in Articles 204, 290 and 291 of the Criminal Code of the Russian Federation. In such cases, the crime is considered completed from the moment the bribe or illegal reward for commercial bribery is accepted by at least one of the officials or persons performing managerial functions in a commercial or other organization.
Extortion of a bribe (clause “b” of Part 5 of Article 290 of the Criminal Code of the Russian Federation) is not only a qualifying sign of receiving a bribe, but also a basis for exemption from criminal liability of the bribe-giver. According to paragraph 15 of the above-mentioned Resolution of the Plenum of the Armed Forces of the Russian Federation, extortion means a demand from an official or a person performing managerial functions in a commercial or other organization to give a bribe or transfer illegal remuneration in the form of money, securities, or other property in commercial bribery under the threat of committing actions that may cause damage to the legitimate interests of a citizen or put the latter in such conditions under which he is forced to give a bribe or commit commercial bribery in order to prevent harmful consequences for his legally protected interests.
In paragraph “c” of Part 5 of Art. 290 refers to such a qualified characteristic as the receipt by an official, a foreign official or an official of a public international organization of a large bribe. A large amount is defined in the note to Article 290 - the amount of money, the value of securities, other property, property services, other property rights exceeding one hundred and fifty thousand rubles.
Part 6 of Article 290 provides for another qualifying criterion - the receipt of a bribe by an official, a foreign official or an official of a public international organization of a bribe on an especially large scale. Also in the note to this article it is indicated that an especially large amount is an amount of money, the value of securities, other property, property services, other property rights exceeding one million rubles.
The qualifying features under Article 291 are:
· giving a bribe to an official, a foreign official or an official of a public international organization in a significant amount (Part 2 of Article 291);
· giving a bribe to an official, a foreign official or an official of a public international organization for committing obviously illegal actions (inactions) (Part 3 of Article 291);
· actions provided for in parts 1-3, committed:
a) by a group of persons by prior conspiracy or an organized group
b) on a large scale
· actions provided for in parts 1-4, committed on an especially large scale.
According to Article 291.1, qualified trains are:
· mediation in bribery for committing obviously illegal actions (inaction) or by a person using his official position (Article 291.1 Part 2);
· mediation in bribery committed:
a) by a group of persons by prior conspiracy or an organized group;
b) on a large scale (Article 291.1 Part 3);
· mediation in bribery committed on an especially large scale (Article 291.1 Part 4).
The clarifications regarding qualified compounds under Article 290 also apply to qualified compounds in Articles 291, 291.1.
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