Abuse of official powers - Commentary on the Criminal Code of the US Federation

Abuse of office

1. The use by an official of his official powers contrary to the interests of the service, if this act is committed out of self-interest or other personal interest and entailed a significant violation of the rights and lawful interests of citizens or organizations or the interests of society or the state protected by law -

is punishable by a fine of up to eighty thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to six months, or by deprivation of the right to hold certain positions or engage in certain activities for up to five years, or by forced labor for a period of up to four years, or by arrest for a term of four to six months, or by deprivation of liberty for up to four years (as amended by Federal Law No. 162-FZ of December 8, 2003, No. 420 of December 7, 2011 -F3).

2. The same act committed by a person occupying a public position of the United States or a public post of a constituent entity of the United States, or head of a local government body,

is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wage or other income of the convicted person for a period of one to two years, or forced labor for a period of up to five years, with deprivation of character to hold certain positions or to engage in certain activities for up to three years or without it, or by imprisonment for up to seven years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without it (in the Federal s laws of 08.12.2003 number 162-FZ of 07.12.2011 number 420-FZ).

3. Acts stipulated by parts one or two of this article, which entailed grave consequences -

is punishable by imprisonment for up to ten years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years.

Notes: 1. Officials in the articles of this chapter are persons permanently, temporarily or by special authority performing the functions of a representative of the authority or performing organizational, administrative, administrative and economic functions in state bodies, local government bodies, state and municipal institutions, state corporations, as well as in the Armed The forces of the United States, other troops and military formations of the United States (as amended by the Federal Law of 01.12.2007 No. 318-FZ).

2. For persons holding public positions in the United States, the articles of this chapter and other articles of this Code are persons holding positions established by the Constitution of the United States, federal constitutional laws and federal laws for the direct exercise of the powers of state bodies.

3. For persons holding public offices of the constituent entities of the United States, the articles of this chapter and other articles of this Code shall mean persons holding positions established by the constitutions or charters of the constituent entities of the United States for the direct exercise of the powers of state bodies.

4. Civil servants and employees of local self-government bodies not belonging to the number of officials shall be criminally liable for the articles of this chapter in cases specifically provided for by relevant articles.

5. Expired. - Federal Law No. 97-FZ of 04/05/2011.

1. The objective side of the crime in question consists of three mandatory signs: 1) the commission of an act (action or inaction) - the use by an official of his official powers contrary to the interests of the service; 2) the occurrence of consequences in the form of a material violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law; 3) the causal relationship between the act and the consequence.

2. Under the use of official powers by the official contrary to the interests of the service should be understood as the commission of such acts, although they were directly related to the exercise by the official of his rights and duties, but were not caused by official necessity and objectively contradicted both general tasks and requirements imposed on the state apparatus and apparatus of local self-government bodies, and on those goals and tasks for which the official was given appropriate ostnymi powers. In particular, as an abuse of official authority, actions of an official who, out of self-serving or other personal interest, commit actions falling within the scope of his official powers in the absence of compulsory conditions or grounds for their commission (for example, the issuance of a driving license for persons who failed to pass a mandatory examination; the recruitment of persons who do not actually perform their labor duties, the release by commanders (heads) of subordinates from performance is entrusted x on their job responsibilities with the direction to work in commercial organizations or arrange a personal homeowner's official).

Responsibility for the commented article also comes for the deliberate failure of the official to perform his duties in the event that such inaction was committed out of selfish or other personal interest, objectively contradicted those goals and tasks for the achievement of which the official was endowed with appropriate official powers, and entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state.

As the use by an official of his official powers contrary to the interests of the service, protectionism, which is understood as illegal assistance in employment, promotion, promotion of a subordinate, as well as other protection in the service, committed out of mercenary or other personal interest, is to be considered.

In cases where an act that contains signs of abuse of official powers (Article 285 of the Criminal Code) or abuse of official authority (Article 286 of the Criminal Code), committed by an official to eliminate the danger directly threatening the individual, legally protected interests of society or the state, and this danger could not be eliminated by other means, then such an act can not be recognized as criminal, provided that the limits of extreme necessity were not exceeded (Article 39 of the Criminal Code).

The actions of an official connected with the use of official powers, which caused harm to the interests protected by criminal law, could not be recognized as criminal if they were committed in fulfillment of a binding order or order (Article 42 of the Criminal Code).

An official who committed an intentional crime, provided for in the article under article or art. 286 of the Criminal Code, in pursuance of an illegal order or order known to him, is criminally liable on general grounds. In this case, the actions of a superior official who issued such an order or order should be considered if there are grounds for such incitement to commit a crime or the organization of this crime and to qualify under the relevant article of the Special Part of the Criminal Code referring to Part 3 or 4 of Art. 33 of the Criminal Code.

An official who issued a knowingly unlawful order or order to a subordinate who did not realize the illegality of such an order or order and executed it is liable as the perpetrator of the crime.

However, if a person uses the official powers not assigned to him to achieve a criminal result, but any connections in the service, the authority of his position, etc., then the composition of the crime is not present.

In addition to committing an act in the form of the use by an official of his official powers contrary to the interests of the service, an obligatory element of the objective side of the crime is a consequence in the form of a substantial violation of the rights and legitimate interests of citizens or organizations or the interests of society or the state protected by law , which is in a causal relationship with the deed.

3. Under a significant violation of the rights of citizens or organizations as a result of abuse of office or abuse of office should be understood as a violation of the rights and freedoms of individuals and legal entities guaranteed by universally recognized principles and norms of international law, the Constitution (for example, the right to honor and the dignity of the individual, the personal and family life of citizens, the right to the inviolability of the home and the secrecy of correspondence, telephone conversations, postal, telegraphic and other communications, as well as the right and judicial protection and access to justice, including the right to an effective remedy before a national authority and the damages caused by the crime, and others.). When assessing the materiality of harm, it is necessary to take into account the degree of negative influence of the wrongful act on the normal work of the organization, the nature and amount of material damage suffered by it, the number of victims of citizens, the severity of physical, moral or property harm caused by them, etc.

Violation of the legitimate interests of citizens or organizations as a result of abuse of official authority or abuse of official authority should be understood, in particular, to create obstacles in meeting citizens 'or organizations' needs that do not contradict the norms of law and public morality (for example, limiting the ability to choose, in the cases provided for by law, an organization for cooperation at their discretion.

Abuse of official authority refers to the number of crimes with material composition.

4. From the subjective side the crime is characterized by a deliberate form of guilt in the form of both direct and indirect indirect intent. Obligatory sign of the subjective side is motive - mercenary or other personal interest.

Self-interest is the aspiration of an official by committing wrongful acts to obtain for himself or other persons the benefit of a property nature that is not connected with illegal gratuitous circulation of property in his favor or the benefit of others (for example, unlawful receipt privileges, credit, exemption from any property costs, return of property, debt repayment, payment of services, payment of taxes, etc.).

A different personal interest is expressed in the aspiration of the official to benefit from a non-property nature, conditioned by such motivations as careerism, family spirit, desire to embellish the actual situation, get a mutual service, enlist support in solving any issue, hide your incompetence, etc.

In contrast to theft of someone else's property using the official position, abuse of official powers out of self-interest form such acts of the official who are either not connected with the seizure of someone else's property (for example, obtaining property benefits from using the property for other purposes) or related to temporary and (or) forfeit seizure of property.

If the use by an official of his official powers is expressed in the theft of someone else's property, when his seizure actually took place, the deed is fully covered by Part 3 of Art. 159 or part 3 of Art. 160 CC and additional qualification for the article is not required.

In cases where an official, using his official powers, along with the theft of someone else's property, committed other unlawful actions related to the abuse of official powers from mercenary or other personal interest, what he had to do was to qualify for the totality of these crimes.

5. The subject of the crime in question special is an official.

6. Part 2 of the commented article provides for a qualified composition of abuse of authority, which differs from the basic composition of the crime by the special status of the subject. Here the subject is an official holding the public office of the United States or a public office of a subject of the United States, as well as the head of the local government.

7. A specially qualified type of abuse of authority (part 3 of the article being commented) is the commission of an act provided for in part 1 or 2 of the article that has been commented upon, which entailed grave consequences.

Under grave consequences as a qualifying sign of a crime, provided for in Part 3 of the commented article, and in " Part 3 of Art. 286 of the Criminal Code, one should understand the consequences of committing a crime in the form of major accidents and a long stoppage of transport or production process, other violations of the organization, causing significant material damage, causing death by negligence, suicide or attempted suicide of the victim, etc.

When considering criminal cases of crimes provided for in the article under article or art. 286 of the Criminal Code, it is necessary to clarify which normative legal acts, as well as other documents, establish the rights and duties of the accused official, with bringing them to the verdict, and indicate the abuse of which of these rights and duties or exceeding which of them is charged to him, with reference to specific norms (article, part, paragraph).

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