Most often in practice, after accepting a declaration of bribery, its verification is organized, which is most often reduced to the operational-search operation consisting of a complex of operational-search activities, including an operational experiment of bribes under control, and detention of the offender with political. According to the results of the operation after the "detention", a criminal case is initiated.
The results of the operational experiment - the transfer of bribes under control - and detention with political For bribery cases are currently being considered as the main and decisive proof.
Detention must be preceded by serious preparatory work with the compilation of a detailed plan, which takes into account the features of the subject of the bribe; places and time of its transfer; the need to use certain means of fixing the stroke and the results of cottage-receiving bribes (photography, video or audio recording); Distribution of responsibilities between members of the investigative-operational group and the establishment of communication methods between them. In addition, the preparatory stage establishes operational monitoring of bribes, and familiarization with the place of detention is made, a plan (scheme) is drawn up, as well as processing the object of bribes with a special chemical.
The video-sound recording of the victim with a bribe, in which the intention of the crime is clearly pronounced is clearly expressed, the consequences of a bribe are indicated, there is an indication of the personality of the bribe. Audio-video recording of the process of receiving a bribe, as well as negotiations of the bribener and bribe, is carried out in the process of conducting operational search activities, in particular, the unwashed video. To increase the evaluational value of the information received, the victim should encourage the bribe to the message of the right information through, for example, the following phrases: is it included in your authority to solve this issue? What will happen if I do not fulfill your requirements? What form should I pay you?
Sound-video recording of the negotiations of the bribener and bribefiber can be carried out as directly by the forces of the body carrying out the operational support of the investigation, and can be assigned to the special division. technical events. In the first case, in order to give the values \u200b\u200bof evidence received by the operational way, it is necessary to compile and attach to a criminal case. the following documents:
Protocol of inspection of the transfer by the injured recording equipment or installation of it in a certain place;
The protocol for issuing a faded tape recorder with a recorded phonogram of its conversation with a bribe;
A record of the audio recording device and audio recording.
A ruling is made about the introduction of a cassette with sound recordings; The person who has survived the recording is interrogated as a witness; And the phososcopic examination is appointed.
When using video to fix the fact of obtaining bribes, documents similar to those specified above are drawn up.
When carrying out a tight audio video recording of units of special technical measures, the cassette is sent to the investigator with a cover letter, which outlines grounds, place, time, recording duration. The investigator browsing the materials obtained, as is the protocol and prescribes a phososcopic examination.
To move the bribe header transmitted objects or money can be treated with a special chemical (CHA), capable of "go" to the hands and clothing of the criminal. When a marked thing is found in the criminal, the label from the CHS is detected in ultraviolet rays.
To give a criminal transferred to the criminal, the subject of the status of material evidence must be:
The inspection protocol (applicant) participating in the event;
Money inspection protocol, which will be awarded to the applicant for transferring a bribe to a bribe, with the indication of their numbers and series and method of special processing. Money inspection protocol must be attached to the copying of money and samples of special environments that were processed by packaging money and money. Packaging for money bursts (divided) into two parts. The first part of the packaging is marked with special substances and it is placed in it (wrapped) Money, which will be awarded to the applicant for transferring to the bribe to the brief, and the second part of the packaging for money is placed in the envelope (in the presence of two witnesses), is sealed, signed and attached to the protocol;
Cash transfer protocol to the person participating in the operational event;
The list of withdrawal, which records the fact of withdrawal from the criminal transmitted bribes transferred to him;
Protocol of examination of the bribe head, inspection and seizure of its clothes in case of detection on it traces of the CAC;
The protocol of inspection of a bribe from the criminal.
The items seized from the criminal are involved in the case as a material evidence by the Decree of the investigator. Persons, in the presence of which the processing of the object of bribes was carried out are interrogated as witnesses. Expertise of substances and materials is assigned to establish group affiliation of the CHA. Tsusological examination of the establishment of a whole in parts is assigned (whether a single piece of packaging (newspapers) was made of a bribe and part of the packaging (newspapers) were sealed in the envelope during the inspection of funds to be awarded to the applicant for transferring a bribe to the brief).
When detention, it is necessary to take measures to ensure that the bribe does not throw or not destroyed the object of bribes, did not have time to agree with a bribe on the behavior line in the future during the investigation, to incline the latter to the country of false testimony about the presence of legal grounds for receiving money or other values \u200b\u200b( For example, debt refund).
The operational experiment is provided for by the Federal Law "On Operational Festival Activities" of August 12, 1995, an operational-search event for obtaining information on unlawful activities by creating conditions for identifying criminal intentions of subjects.
The operational experiment is carried out by the authority authorized to conduct operational and investigative activities, on the basis of a resolution approved by his head. The implementation of this event is allowed only for the purpose of identifying, preventing and disclosing bribery and persons who prepare who committing or already committed. The operational experiment is allowed only for the purpose of identifying, preventing, preventing and disclosing a crime middle severity, a serious or especially grave crime, as well as to identify and establish persons who prepare them committing or committed.
According to paragraph 4 of Part 8 of Article 5 of the above-mentioned law, bodies (officials), carrying out operational investigative activities, it is prohibited to incite, inclined, encourage in direct or indirectly to commit unlawful actions (provocation).
Provocation - the prompting of a person to commit a crime that did not enter his intention. No matter how difficult and responsible was the task of combating corruption, provocation cannot be used as a method for detecting bribery.
Any active actions of law enforcement agencies in the event of an event on a citizen who has no determination to commit a crime and the fact of his consent was not recorded to receive a bribe indicates a criminal intent, as well as the presence of signs of violation of legality when conducting a control event. In this case, the underlying condition of the legality of the operational experiment is violated, which is prohibited by active actions to provoke a person to commit a crime and artificially create evidence of its commitment.
It is indisputable that in cases of throwing the subject of bribes or transferring it without the consent of the official, signs of provocative actions of law enforcement officers are obvious, since they are making initiative actions to artificially create evidence of a crime in conditions when a suspect did not take any attempts testifying to his Ready to commit a crime. In addition, a convoyed person has not yet formed a criminal intent, and it is no longer for the active actions of law enforcement agencies no longer have the choice and is forced to commit a "crime" on a predetermined scenario.
Accordingly, the operational experiment should be considered legitimate and non-provocation, if it does not initiate the criminal behavior of the person, and interferes with the implementation of its intent. It is important that the fact that "checked" is still before the experiment has freedom of choice and have the right to voluntarily refuse to bring the crime to the end.
The main criterion that distinguishes the operational experiment from provocating a bribe is the presence or absence of agreement between the parties to transfer money, valuable papers, property or provision of services property Character, insofar as criminal law Determines the provocation as an attempt to transmit them to a job person or a person carrying out management functions without its consent. This legislative condition requires an operational employee and citizens involved in conducting an operational experiment, choose an exclusively passive form of behavior, which consists in the oscillations of the cottage (obtaining) of a bribe, expressing the concerns of such actions, refinement of the nature of illegal actions or inactions, the size of the amount received (transmitted) . In such a situation, active, obsessive proposals, extortion, requirements, threats in order to obtain a bribe suspect of a suspect show the direction of its intent on committing a crime
It should be noted that the active actions of the suspect are carried out during an operational experiment under the conspiracy control of law enforcement agencies. This circumstance allows you to identify its criminal intentions, links, skills, fix the consent of the face to obtain a bribe with the use of technical means. Thus, traces of the opposed acts committed are recorded in compliance with the requirements of operational-search legislation. The activities of law enforcement agencies in this case represents a special event regulated by departmental regulatory acts, consisting in the use of operational search forces and means to direct the further criminal activity of the suspect in the sphere controlled by them.
In this regard, the approval of Professor PS is completely correct. Yani that if the initiative actions of an official for extortion of a bribe relevant services will fix that and with the use of a citizen to whom the corrupt officer, there is an operational experiment A in the actions of a policeman and a citizen there will be no crime, because no one pushes an official to committing a crime. The official face will be responsible as a bribe.
In the event that the internal affairs bodies receive an official application for extortion from the official of the bribe, then the subsequent actions of operational workers imitating the gift of bribes to the official in the process of conducting an operational experiment are a legitimate operational investigation event, aimed at identifying and preventing grave crime. An unlawful this event cannot be called illegal, since the official without any provoking action made preparation (attempt) to receive a bribe. However, in the case of criminal case, the procedure for extortion of bribes and other documents as a basis for the adoption of the operational and search bodies of further measures to document the unlawful actions of the suspected person should be registered in the procedure of criminal case.
Justice bodies took into account the difficulties of the initiation of persons who commit such crimes and strengthened legal base The activities of operational units, noting: "is not a provocation of a bribe or commercial bribery, the implementation of the operational and investigation activities provided for by the legislation in connection with the verification of an application for extortion of a bribe or property remuneration for commercial bribery".
However, in the resolution of the plenum Supreme Court Of the Russian Federation of February 10, 2000, N 6 "On judicial practice on bribery and commercial bribery" It is indicated that the subject of provocative bribes (Article 304 of the Criminal Code of the Russian Federation) can be any person acting with direct intent in order to artificially creating evidence of a crime or blackmail. This crime is completed since the attempt to transfer money or other material values \u200b\u200bor an attempt to provide property services. Solding the question of the presence of a composition of this crime, the court should be checked, whether there was a prior agreement with an official or a person who performs managerial functions in commercial or other organizations, about the agreement to take a bribe or commercial bribe.
In the absence of such an agreement and refusal to accept the subject of a bribe or bribery, the person who was trying to present the named subject in order to artificially creating evidence of the crime or blackmail is subject to responsibility under Article 304 of the Criminal Code of the Russian Federation.
Operational experiment is often accompanied by other operational search activities.
When conducting operational-search activities, photography, audio and video recording are used. The materials obtained are used not only for tactical purposes, but in some cases even as evidence in a criminal case. First of all, this refers to audio and video materials. They are transmitted to the investigator together with all materials in accordance with the instructions "On the procedure for submitting operational-search results to the investigator, an inquiry authority, investigator, prosecutor or a court", approved by the joint order of the Ministry of Internal Affairs of Russia, Federal Service Security Russian Federation, Federal Service for the protection of the Russian Federation, the Federal Customs Service, the Foreign Intelligence Service of the Russian Federation, the Federal Service for the Performance of the Federal Service of the Russian Federation for Drug Trafficking and the Ministry of Defense of Russia on April 17, 2007 №368 / 185 / 184/97 / 147. Audio and video tapes are subject to inspection in the presence of concerted simultaneous listening and viewing and preparation of the transcript. If necessary, can be assigned forensic examinations: Phonoscopic, linguistic (to determine the voting belonging to a specific person), portrait, criminalistic, etc. If the consequence of the investigativeness of the crime of the facts recorded in the materials studied, and the admissibility of their receipt, magnetic tapes with the relevant entries are recognized by real evidence.
The employee of the operational division and his immediate superior is assigned training to conduct operational search activities (for example, the definition of participants, the investigation, their equipment, ensuring the necessary documents, special technical and other means, the development of the behavior line, the census of cash bills or application They are individual labels, etc.), as well as ensuring the personal safety of participants in these events.
Employees of the Inquiry Body as part of their competence in the implementation of operational-search activities on the decisions on bribery (other crimes) independently carry out the selection of the necessary special technical means (video, audio and others) and take measures to disguise them from persons in respect of which the use of these funds. The technique and tactics of the ORM are an exceptional prerogative of the inquiry authority.
The choice of fixation tools of ORM should ensure the preparation of high-quality, convincing, no doubts in the reliability of materials.
To achieve the necessary effectiveness of ORM to identify and disclose the facts of bribery, three main areas should be carried out:
1. Establishment of persons who are aware of criminal actions of a briberator (bribefiber), which may be witnesses in criminal proceedings;
2. Identifying objects and documents that were used in the commission of crimes and can be recognized by real evidence;
3. Fixing the criminal actions of the subjects of bribery and their criminal ties.
Some features should be allocated for the preparations for the conduct of ORM on applications on the requirements of a bribe, which has not yet been handed:
1. Before the start of events, it is necessary to find out all the questions with the applicant with the maximum details regarding the circumstances of the requirement of bribes;
2. To obtain the applicant's consent to participate in the relevant operational investigation event (most often an operational experiment), explaining the essence of the upcoming event;
3. Instruct the applicant on the procedure for its actions in various areas of development of the situation, agree with it the general direction of the conversation with a bribefiber, possible issues that can lead to the exposure of the guilty, fixing its intent on receiving a bribe. It is especially important to instruct the applicant about his behavior in the situation when the briber avoids direct instructions to transfer a bribe in his conversations.
4. All operations must be drawn up required documentsthat would testify to the preparation and conduct of an operational investigation event.
Federal Law of December 26, 2008 No. 293-FZ "On Amendments to Selected legislative acts Of the Russian Federation in terms of excluding the extraproductional rights of the internal affairs bodies of the Russian Federation relating to the inspections of the subjects business activities"Introduced new edition Article 15 of the Federal Law of 12.08.1995 No. 144-FZ "On operational-investigative activities", in which it is possible new order seizure of documents, objects, materials during vowels operational search activities, including the facts of bribery. Now the official of the inquiry authority in these cases is obliged to draw up a protocol in accordance with the requirements of criminal procedure legislation set forth in particular in Art. 166 Code of Criminal Procedure. Failure to comply with this order can lead to the impossibility of using the results of operational-search activities in the criminal proceedings.
The investigator should not directly participate in the conduct of ORM, as well as the detention of bribery stakes with political, since it is not a subject of the Horde. The participation of the investigator in conducting operational measures will lead to the impossibility of using their results in the process of proof in the criminal case.
As the analysis of investigative practices shows, at the initial stage of bribery investigation, the following situations arise:
1. The bribe is transmitted, as there is a statement of a bribener or other person who participated in committing a crime;
2. The bribe is promised, extorted, but still not transmitted;
3. Information on the commitment of bribery was received from third parties who do not have reliable data (from informed to one degree or another relatives of bribes, acquaintances, colleagues, from media reports, etc.).
In the presence of first Of the listed situations, the investigator plans to conduct a number of investigative actions and events, such as:
Interrogation of the bribener as a witness;
Search at the place of work, residence, in other places of stay of the bribe to the detection of a bribe and meaning to investigate documents;
Recess and inspection of documents;
Detention of the bribe stream;
Interrogation of the bribe roll;
Search for accomplices;
Confrontation;
Inspection of the scene.
If the bribe is promised, extorted or required (Second situation) In fact, the object of bribes is not yet transmitted, there is a real opportunity to check the accuracy of the received message and make sure the crime development of the event. This is the most favorable situation for consequences. The scheme of law enforcement agencies comes down to the following. First of all, the confidence of the information received.
Verification activities can be carried out in accordance with Art. 144, 145 of the Code of Criminal Procedure or on the basis of an initiated criminal case.
When checking the material in accordance with Art. 144 Code of Criminal Procedure The following activities are held:
The identity of the alleged bribefiber and its official position, the amount of official authority, opportunities for performing actions in the interests of the bribent, the situation at the place of service of the official;
Communication of an official and relationship with the applicant are established to eliminate a possible reference;
The inquiry authority is entrusted to conduct operational-search activities, including operational experiment and detention with political. If an operational way is confirmed by the fact of transferring a bribe, a criminal case is immediately initiated and urgent investigative actions.
According to the initiated criminal case:
Interrogation of the applicant;
In accordance with clause 4 of Art. 38 Code of Criminal Procedure Directors the Inquiry Body on the organization of operational-search activities, including an operational experiment on the transfer of a bribe under control;
Detention with polishing in accordance with Art. 91, 92 of the Code of Criminal Procedure;
Personal search;
Inspection of the scene;
Interrogation of bribery subjects;
Search at the place of work, residence, finding subjects of bribery;
Inventory of property, the imposition of arrest on property (after charged);
Inspection of the object of bribes;
Recess and inspection of service documents;
Facilles.
Analysis of the materials of the investigative departments of the Investigative Committee under the Prosecutor's Office of the Russian Federation on the constituent entities of the Russian Federation (now the Investigative Committee of the Russian Federation) shows that in the investigative committee of the Investigative Committee in the Prosecutor's Office of the Russian Federation (now the Investigative Committee of the Russian Federation), the procedure for initiating criminal cases of this category is different. In someone after accepting a statement, its verification is organized, which consists of a complex of operational search activities. According to the results of operational and investigative activities and after detention of the bribe, a criminal case is initiated.
In other regions, under the basis of the statement, a criminal case is initiated on the fact, after which the applicant's detailed interrogation is carried out and other investigative actions are held to collect evidence, as well as the order in accordance with Art. 38 Code of Criminal Procedure The Authority of the Inquiry to verify the application by conducting operational search activities.
The other path is procedurally possible. Nevertheless, both paths have their own positive and negative sides, so the choice of these options depends on the specific situation and the discretion of the decision maker.
Upon receipt of information about bribery from third parties (third situation) The investigator, first of all, organizes an inspection of the source of information, having received a pre-detailed explanation of the substantive application. The identity of the applicant, characterizing his data, is whether the relationship with participants in bribery and other information necessary for the decision on the verification of the material is established.
Familiarize yourself with the activities of the state body or institution in which the alleged bribefiber works, in order to establish the situation and identify criminalistic features of bribery;
Establish the connection of the official and the alleged bribes;
Send an inquiry authority to verify information on the operational way;
Organize observations and detention with political;
Conduct an interrogation of the applicant or other person who is a source of information;
Recess and study of documents;
Searches at the place of work and residence of bribers;
Conduct interrogation of bribery subjects;
Facilles.
At the initial stage of the investigation, three typical situations usually arise:
1. There is a statement of the bribener, and it is ready to assist in the initiation of the bribe to which it is unknown;
2. The bribener and bribers act in collusion (information about the crime came from operational sources), bribers about it unknown;
3. Information on the facts of bribery came from official sources. Bribery are known that law enforcement agencies are interested in their actions.
Algorithm of the action of the investigator:
1 Situation:
Interrogation of the bribener;
The detention of the bribe roll with political (before that, if there is such an opportunity, inspection of the alleged item of bribes, and after the detention - a personal search of the bribe roll, sometimes its survey);
Interrogation of the bribe roll;
Search at the place of residence and work of the bribe overlay arrest on property;
Recess and inspection of documents;
Interrogations of witnesses;
Performing full-time rates.
In addition, the investigator gives separate instructions to the bodies of the inquiry on the necessary operational search activities.
In most cases, the work of the investigator is preceded by operational work on identifying and exposing bribes.
Depending on the degree of reliability and the nature of the existing signals of bribery, which can be used to expand the criminals, the head of the BEP receives one of the following decisions:
Immediately arouse a criminal case on the basis of primary materials, in cases not tolerating deposits;
Conduct a preliminary check of the received data and, if there are reasons and grounds in them, transfer materials to the investigative units to address the issue of initiating a criminal case;
Organize the operational development of persons in respect of which there is an increased interest.
Then the designed, documented materials are transmitted to the investigator, which puts the final verdict on the preliminary investigation.
2 Situation:
Detention of both bribery with political; their personal searches;
Searches in place of their residence and work; overlay arrest on property;
Interrogations of suspects;
Recess and inspection of service documents;
Interrogations of witnesses.
All of these investigative and procedural actions, the investigator is carried out in close cooperation with the apparatus of the inquiry, which it gives separate orders.
3 Situation:
Interrogations of witnesses;
Recess and inspection of documents;
Interrogations of suspects;
If there are sufficient grounds - searches of suspects.
At the same time, a complex of operational-search events is actively carried out.
Bahautdinov Fleur Nurtdinovich, Judge of the Constitutional Court of the Republic of Tatarstan, Doctor of Law, Professor.
The article discusses the qualifications of illegal actions of employees of the internal affairs bodies, as a result of which people forced to give a bribe. It is proposed to provide for the legislation responsibility for such actions.
Keywords: a provocation of a crime, incitement to the country of bribes, the fight against corruption, giving bribes, receiving bribes, criminal liability.
Provocation of Citizens to Give A Bribe F.N. Bagautdinov.
Key Words: Provocation to Commit a Crime, Incitement to Give A Bribe, Fight Against Corruption, To Give / Accept A Bribe, Criminal Liability.
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<1> Commissioners V., Yani P. Provocative-inflammatory activities in respect of an official as a circumstance excluding responsibility for receiving a bribe // legality. 2010. N 9. P. 3 - 8; Radachinsky S. Legal Nature Crime Provocation // Criminal law. 2008. N 1. P. 59 - 63, etc.
Let's start with the fact that the bribe can be given under different circumstances. It rarely happens that a person in some situation faces a police officer and immediately "lays out" a bribe. In the overwhelming weight of the country's country, a sufficiently long preparatory period is preceded, during which the potential violator is negotiating, trying to find out the possible implications for itself, expresses certain hints, suggestions. Depending on the position of the police officer, the violator makes a decision on further actions: to give or not to give a decision on the categorithics or avasia of his answers.
The situation, as a rule, can develop in two scenarios. In the first case, an impregnable police officer does not respond to any persuasion, hints and suggestions, makes their work, draws up the necessary paper. Making sure the principle of the police officer, it is unlikely that anyone will risk to give it a bribe.
But often the events are developing according to the second scenario, the director of whom the police officer speaks already. On hints, the proposals of the violator "to negotiate" the guard order as it may agree, or responds evasively, or does not object. Nadezhda appears at the intruder: it seems to be "pecking." But he does not suspect that they are caught himself. Next, it follows: "Let's go to the side" either "I will go to the office, where there is no one, there will be talking there", etc. The violator completely "swallows the hook" together with the bait and soon becomes a bribe.
The Russian Gazette described about the situation when the traffic police officers provoked a trucker driver to give a bribe in the amount of ... one hundred rubles in Bashkortostan. The driver of a private enterprise S. stopped near the city of Birsk. The dusty inspector of the traffic police noticed that the left-wing light light was lit on the semi-trailer and the illuminator of the state number. Personally walking behind the inspector in the building of the stationary police station, the driver did not assume that in a minute he would become a "hero" of a thoroughly planned promotion. In the stationary point was equipped with a camcorder, stood in advance the invited memorable.
When the inspector said loudly by S., which processes the preparation of the Protocol on administrative offense, which is supposed to a fine in the amount of one hundred rubles, the driver of the truck sighed and submissively handed the policeman's storubluble bill. Considering the incident is exhausted, he headed for the exit. Yes, it was not here! After a second, he was almost a solemn atmosphere read st. 291 of the Criminal Code of the Russian Federation, which provides for the punishment for the cottage of bribes in the form of imprisonment for up to eight years. The driver has become bad. On the nervous soil, his body was covered with eczema, and the poor fellow spent two months in the hospital. At this time, the unemployed spouse S. and two juvenile children tightened the belt - the disease and misfortune with the breadwinner were sensitively struck by the family budget.
Moreover, the head of the traffic police of the Bir district shared with the RG correspondent, which, during a similar action, a local resident and father of three children were brought to justice on a bribe of 100 rubles, which was trying to give the traffic police inspector, which was collecting him to attract it to the administrative Responsibility for the faulty lighting light bulb on the passenger car trailer. Here are just such PR-shares of the traffic police, as the correspondent writes, the drivers cause, to put it mildly, the grin. For they know their real price<2>.
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<2> Ignatenko A. Storublevaya action. An indicative fight against corruption on the roads turned into a tragedy for the driver and his family. Russian newspaper. 2008. April 11.
Asks: who needs such a fight against corruption? Why break the fate of ordinary people, essentially, pushing them to the country of bribes? What prevented, for example, an account of the traffic police to read the content of Art. 291 of the Criminal Code of the Russian Federation is not after granting a bribe, but before, after establishing the fact of the violation, to warn, warn a person from hasty actions.
The crying case occurred at one time in Almetyevsk Republic of Tatarstan. A friend turned to the local OBEP employee is an individual entrepreneur. He bought an apartment on the first floor of a residential building and wanted to open a store in it. That is, it was necessary to translate a residential premises to the category of non-residential. According to the problem then, the question first was considered in local bodies Authorities, and then decided the Cabinet of Ministers of the Republic of Tatarstan. Moreover, at the local level, it was necessary to collect coordination and permissions of more than a dozen organs. The main thing is the positive conclusion of the state housing inspection. And the entrepreneur asked the OBEP employee to assist in an accelerated decision of his question. That in response suggested a non-standard solution: "And come on, I myself look like documents instead of you and I will quickly do everything." So they decided, the police officer began to coordinate the necessary papers. Including he appeared to the city housing inspection, introduced himself as an entrepreneur, passed the documents. He was answered that within the prescribed period, the documents will be considered and decided. In the inspection, and did not assume that negotiations with them conduct an OBEP officer, which also recorded all the conversations on the recorder! The police in every way provoked the head of the housing inspection: came to her, called, asked to speed up the consideration of documents, promised to thank, etc. With the last telephone conversation, OBEP employee said that the documents were needed by him immediately that he would suffer great losses because of this. Finally, the documents were ready, an OBEP officer appeared behind them. The inspection building was waiting for a capture group, understood. Having received documents, the police officer threw the head of the housing inspection of 10 thousand rubles on the table. and retired. The head of the inspection with money in his hands rushed after him. The door has it and "tied" with evidence in her hands. An initiated criminal case and started investigating. But the case soon went into a dead end due to an unsolvable question - did the police officer have the right to act as a bribe in this case? Realizing that they moved, it was stopped. In general, such police officers should be judged.
Another indicative example of the exception of my work by the prosecutor of the city of Kazan. At the reception came the parents of a student one state Institute. And they told an amazing story. Their son for a petty violation was taken to the police. Checked the documents, found out that he is a student. Soon the guy was in the office of the OBEP officer. He began to ask: how to learn how to hand over exams, etc. At the same time, he said that a meeting was recently held at the very top, on which the police demanded more to identify teachers of universities - bribes (this corresponded to reality). In conclusion, OBEP employee found out: to whom and what items will take a student during the nearest session? The student replied, and then the policeman had already set a specific task: we must give a bribe to the professor, the head of the department - no less. And so that the student does not refuse, his personal documents officer OBEP closed in safe. Like, you will get when you do. The session is approaching, the student began to worry. He told his parents, and they came to the prosecutor.
To prove the presence of any kind of crime in the actions of a policeman in this situation was a difficult thing. They spoke alone on one. Regarding the documents in the safe, he could come up with anything. Therefore, I sent an employee of the prosecutor's office with a student and his parents in the police. At the request of an employee of the prosecutor's office, the OBEP worker opened the safe. Student documents were lying there and were returned to him. By the way, there was also a subscription "poor student" that he agrees to cooperate with the police authorities.
The incident on it was exhausted. But everything could happen otherwise - they would give him a labeled money in the police and he would give them a professor, that would be detained for receiving a bribe. Unfortunately, this is the system of work of the internal affairs bodies, these are their methods and ways to disclose the crime.
And such things are engaged, as a rule, in militia. I do not remember any case so that some state employee, an employee of the controlling body fought with corruption like methods. This is an exclusively police method that goes back in the distant history, which has been worked out by the years, allowing, on the one hand, to increase the disclosure, show the fight against bribes, and on the other - to present the image of an honest, incorruptible policeman. But this image has already been pretty enough, as the methods themselves are outdated, from which it is time to resolutely get rid of.
In some regions, including in Tatarstan, the management of the Ministry of Internal Affairs introduced practice: if the police officer refused to receive a bribe, then he was paid to the award in the same amount from which he refused. It is proclaimed that this practice is anti-corruption. From time to time, the Print reported on such police officers.
I somehow interested in statistics on this issue. So, such cases "bonuses for the refusal of bribes" are single and any serious impact on the situation do not provide. Moreover, it seems to me, and in this practice it is hidden a provocation element. And the provociation is already the police officer: he is inspired - give up a bribe, we will return it to you in full! And just to refuse a bribe, it is impossible - it is necessary to delay the bribener with political! As a result, the police officer kills two hares: writes to his account opened crime And in addition, it receives a premium.
One more example. The verdict of the Aznakaevsky City Court of the Republic of Tatarstan on February 1, 2010 was convicted under Part 2 of Art. 158 of the Criminal Code of the Russian Federation for 2 years of imprisonment conditionally with a trial period of 1 year. He was recognized as guilty of the three episodes of thefts, which were committed on October 12, October 28 and November 23, 2009. G. Venu acknowledged, the damage was reimbursed. The verdict came into force.
In March 2010, the G. was summoned to Aznakaevsky ATS on the material about theft, perfect on June 27, 2009, he confessed to this crime. Since the city had a conditional conviction, he thought that due to the new criminal case, he would cancel the conditional punishment and would give a real sentence of imprisonment. Naturally, G. asked for police officers: "How to be what to do, because I have a family, a child. Is it really put? " Those answered: "Yes, for the new episode can give a real period of imprisonment." The soil for giving bribes was prepared. Police officer S. said g.: "Go tomorrow, let's talk." I thought: "Agreed, help." When he came to the police the next day, it turned out that a special room was already prepared for him in which the camcorder was installed. As soon as G. put money on a table in the amount of 10 thousand rubles, he was detained for the gift of a bribe.
G. - a rustic man, legal subtleties did not know. No one clearly explained the position of Part 5 of Art. 69 of the Criminal Code on the rules for the appointment of punishment for the totality of crimes. It refers to the rules for the appointment of punishment, if, after making the court of a sentence in the case, it will be established that the convict is also guilty of another crime committed to it before the court sentence in the first business. Here was the very case. And for the emerging new episode of theft, he could calmly get the same conditional punishment defined by him on the first sentence (three or four thefts made a person - there is a big difference here). Explaining the provisions of the Criminal Law on the Rules for the Appointment of Punishment on the Consumption of Crimes, the police officers would have stopped all sorts of thoughts about the country of bribes. And if G. knew that he had a chance to the conditional punishment with his new episode, he would hardly have walked to give bribes. Screw from the city of this circumstance, it was, in fact, forced to give a bribe. According to the sentence of the court for the cottage of the bribe of the city, condemned to imprisonment. In my opinion, in this case there was a bribe provocation.
In this regard, attention should be paid to the practice of the European Court of Human Rights, which in similar situations recognized the facts of provocations from the police (Ramanauskas against Lithuania - a resolution of February 5, 2008; "Kudobin against the Russian Federation" - RESOLUTION of 26 October 2006; "Wanan against the Russian Federation" - a decree of December 15, 2005; "Teicheir de Castro against Portugal" - a resolution of June 9, 1998 and others). Basically, they relate to provocations when conducting a drug procurement procurement through their agents and proxies, but the general approaches of the European Court on this issue are fully applicable to the cases of provocating a bribe.
What is the way out of the situation? In my opinion, the law should include a general rule that, when receiving a proposal for a bribe, a police officer, subject to the availability and opportunities, is obliged to clarify the person of the Criminal, other law on the merits of the case, including criminal liability for the gift of a bribe , not to start immediately to conduct an operational experiment - detention with political.
And then it is necessary to provide in the Federal Law of August 12, 1995. "On operational-search activities" requirement that the operation on the detention of a briberator (operational experiment) is possible only after such an explanation, or in cases where the proposal for a bribe arrived and after Clarifications were either repeated, etc.
We also offer to introduce a separate article to the Criminal Code of the Russian Federation: "Provision of bribes: Intentional actions of a police officer either another official for the artificial creation of conditions under which the person is forced to the country of bribes."
The implementation of these proposals should contribute to the fact that police officers will catch these bribes, and not provoke citizens to the country of bribes.
In addition, other measures can be successfully applied against such illegal practices that do not bear a criminal law. Recently, as an expert from the Academy of Sciences of the Republic of Tatarstan, I studied the projects of young scientists, presented at the competition "Fifty-best innovative ideas for the Republic of Tatarstan". A student of the Kazan Technological University of Yusupova presented a project called Green Road. It consists of two elements: an electronic bank card and a device for charging fines in non-cash form. The device for charging fines looks like the equipment that we use in modern stores with cashless payment (Mixed apparatus plus magnetic reader). Approximate cost of one set - 3000 - 5000 rubles. It is assumed that each offense has a number or index (code). Accordingly, the traffic police officer introduces an offense code into the device, and after payment by the map is given a receipt on which the title of the offense and the size of the fine will be indicated. The device records the number and types of operations conducted by the traffic police officer. Cash will be sent to a special account. An electronic bank card can be made by type of bank cards, as well as specifically open when buying a car. If the driver does not have money on the map, the device issues a receipt, with which it is possible to pay fines in relevant organizations. Information about the operations carried out will be recorded in the database of the traffic police.
After reading the project, I called the traffic police department of the Republic of Tatarstan. There they informed me that such projects exist, but it is really not yet applied. In general, the delight and explosion of enthusiasm I did not hear. But if you realize this project, then the need for a bribe to employees of the traffic police disappears! It is only necessary to oblige the driver so that he has such a map and certain cash on it. Truly, all ingenious simply.
Installation on the roads, streets of the camcorder has already confirmed its effectiveness. The introduction of the apparatus for the collection of fines for violation of the rules of the road in a non-cash form is definitely much reduce the soil for abuses by traffic police. Therefore, I "two hands" voted for the implementation of such a project.
Bibliographic list:
1. Ignatenko A. Storublevaya Promotion. The demonstration fight against corruption on the roads turned into a tragedy for the driver and his family // Russian newspaper. 2008. April 11.
2. Commissarov V., Yani P. Provocative-inflammatory activities in respect of an official as a circumstance that excludes responsibility for receiving a bribe // legality. 2010. N 9.
3. Radachinsky S. Legal nature of crime provocation // Criminal law. 2008. N 1.
Any person who occupies a position with management or administrative and economic functions is often faced with a proposal of remuneration for performing various actions in favor of specific individuals or organizations. Provocation of receiving a bribe becomes common, including in all instances.
If you have become action involved cases of bribery - do not hesitate, but urgently call the lawyer!
At the same time, the provocations of bribes are often spoken by the person who gives it, emphasizing obviously illegal actions on the part of the official. But how to be an official, if a visitor or other person persistently provokes an official or civil servant to an illegal step?
Provocation of bribes: essence and nature
Especially often this situation arises from officials, really honestly and conscientiously performing their official duties, minimizing all possible abuses. The remuneration may be offered both for illegal actions or inaction in the interests of the bribener, and in the form of gratitude for the issue already resolved in a legitimate order. Any adoption of award in this situation will entail the onset of responsibility on the relevant part of Art. 290 of the Criminal Code - that is, getting a bribe.
The degree of responsibility will depend on the nature of actions for which the remuneration is given.
- Obtaining a bribe as "thanks" for the execution of their duties will cost a smaller sentence and a smaller finer.
- The bribe for illegal actions can be for a long time to send an official to prison with confiscation of property and draconian fines.
Examples of sanctions under Part 1 and Part 3 of Art. 290 of the Criminal Code below.
Part 1 Art. 290 of the Criminal Code of the Russian Federation
Part 3 Art. 290 of the Criminal Code of the Russian Federation
Under no circumstances agree to violate the law. Even if the "first time." Even if there is no danger. Remember that the temptation to bear the law often leads to the most unpleasant consequences and the fact that this act was caused by provocating a bribe to prove it is very difficult!
Remember that the person, if she declared his act, will be released from responsibility. But if you "provoked" persuasion - the responsibility will not soften it!
Who and why provoke an official to a bribe?
In order to increase the indicators of the disclosure of crimes on bribery, law enforcement officers often use not always honest methods, including the provocation of bribes by civil servant or official. To the suspect in bribery, the official person was sent in advance to the opposite person who first wait for the official of the proposals in the decision of a deliberately illegal issue for money, and then he begins to unobtrusively hint about it. It is in the second case that the provocateur's action is often subject to signs of 304 of the Criminal Code of the Russian Federation - a provocation of bribes.
And in such cases, the authorities do not act at all: most often their actions are a consequence of anonymous or open complaint against corruption or other violations represented by an official.
Provocation of a bribe on the example of an employee of the court apparatus
Imagine that you are a state employee of the court apparatus. For example, assistant judge. Strictly uniform you made a couple of comments at the reception to a visitor who did not submit all the documents, or otherwise one visitor was (not even violating the law!). Perhaps you even tried to offer money, but you were adamant, the honor of you and praise. People have anyone and often such an offended citizen goes to "organs" and reports that you have extorted money. For receiving the application, for example, or, worse, for the subsequent transfer of their judge.
Police officers are obliged to accept the application and are forced to check the words of a citizen. It is equipped with laundering money, they prepare all the documents for the operational event and "seize" the messenger.
And now a smiling citizen comes to the court or to you personally. The same or different, "messenger". Asks to accept an application without necessary documents (then brought, the main thing to file), inform anything about a different business or suggest a judge by something on the existing court.
You can also ask to convey some documents that are not related to the case for information and "better understanding of the situation." Well, so that you were more pleasant - offers a reward.
Yes, I have a suit on a friend, the debt charges. How are there chances there? In debt, you will not leave, it is necessary to set the word to fold that the signature is lime. Say the judge, be a friend? The case will fall apart! From the saved million - you 50 thousand, 25 right now! - Typical noodles on the ears.
Taking into account the disadvantage, the temptation agrees to "light money" for, in general, nothing does not violate the action. Suit without a pair of documents? Well, the judge will immobilize, if something is wrong, and the assistant will say that "underwent". Say a few words judge under the guise of his opinion? Also nothing terrible. Bear superfluous? Who knows?!
Alas, the realities are much sad - it is worth only to take money even for a simple favor and you can say goodbye to work and freedom.
How to behave if you are offered a bribe?
If you are invited to get a bribe, you should immediately take steps to notify your leadership or other persons to be notified in such a situation. Follow the internal anti-corruption regulations of their department.
Otherwise, such silence, even if there is a refusal of money, is illegal. In no case should be carried out on the actions of provocateurs working, which is called, "on iszor" - that is, offering repeatedly and for a long time various forms of remuneration.
For conviction for illegal actions during provocation of receiving a bribe, often on the official press:
- Reproaches in shamelessness and good life;
- Terrible stories about problems;
- Tears and molhers, up to fall on his knees.
Why many officials do not report all cases of illegal remuneration to them? Here the role is played by the usual human factor.
Most often, women or pensioners who grave for pity or person in obviously unpleasant and causing pity and thereby beatify the desire to report their actions to the police are advocated in the role of such persons sent by law enforcement agencies. Like, man and so it was not lucky - why spoil life?!
Agree, who will cause more perturbation: an entrepreneur, an adult and aggressive man or defenseless, poorly dressed woman, bulging the issuance of a document without a queue or other crossings?
If the receipt of the bribe was provoked or there was a "substab"
Often an official or civil servant believes that there is no solid! " And the explanation is that the actions of the bribener are illegal, enough.
Alas, if the provocation of receiving a bribe fails and the official does not express aggression or categoricness in the suppression of illegal actions, the provocateur can go to extreme measures.
Money can be:
- substaled to the documents transmitted by the official;
- applied to any items in the room;
- left on the table in an invisible place;
- translated on the map personal number A cell phone that offering a bribe the face could put out under some pretext.
After the visitor leaves the crime scene, almost immediately entitle the law enforcement officers and "will record" the fact of transferring money, finding them where, from the words of the bribent, you put them. In this situation, it should be immediately and without it, not to contact the investigators.
That is why the proposal of a corruption nature cannot be lowered on the brakes. Offered money? Remove the phone and call the manual. Immediately. Even if you are neatly fell into the documents - you have already notified the bosses, nothing to fear.
The main position of the accusation in this case is built on the false witness testimony of the provocator - they say, an official of the wishes about the adoption of remuneration did not declare, but the look or gestures indicated the transmission method.
Unfortunately, if the official did not express outrage immediately after the offer of money and did not inform the plenipotes about the attempt to his bribe - such actions are often qualified as receiving a bribe and even pass through the court if the suspect can convince the need to recognize their guilt.
If responsibility for receiving a bribe is inevitable?
The competent tactic of the defense built by a qualified lawyer will help not only avoid condemnation for an imperfect crime, but also often attract unfair operatives who have tried to increase the quality of their work in such methods. Provocation of receiving a bribe is quite a serious problem, besides, it is difficult to prove.
Apply for help from our lawyers, including free legal advice on a bribe.
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2015. T. 25, vol. 2.
Bulletin of Udmurt University
Economy and law
UDC 343.9 V.V. Rovneco
Provision of bribes as a corruption crime committed using official position
Considered complex issues of the criminal law evaluation of the crime provided for by Art. 304 of the Criminal Code, the ratio of provocating bribes or commercial bribery with the compositions of corruption crimes, as well as gaps in criminal law in terms of establishment criminal responsibility For the provocation of giving bribes and the provocation of mediation in bribery. Provocation of bribes (or commercial bribery) provides for responsibility only for provocation for receiving a bribe "bribent". Bribery also includes not only receiving a bribe (Art. 290), but also a gift of bribes (Art. 291 of the Criminal Code of the Russian Federation), and mediation in bribery (Art. 291.1 of the Criminal Code of the Russian Federation). Thanks to the decisions of the ECHR, perceived by the Supreme Judicial Body of Russia, the provocative and incitement activities of law enforcement officers should be considered as a new, which is not reflected in the Criminal Code of the Russian Federation, the circumstances excluding the crime of the act committed by the person in respect of which this activity was carried out.
Keywords: provocation of bribes, exceeding official powers, corruption crime.
Criminal liability for the provocation of a bribe is provided for by Article 304 of the Criminal Code of the Russian Federation "Provocation of a bribe or commercial bribery", which provides the following definition: "Provocation of a bribe, that is, an attempt to transfer the official, without its consent of money, securities, other property or to provide him with services Property Character In order to artificially create evidence of a crime or blackmail. "
This crime can be committed by an official using the official position, although in Art. 304 of the Criminal Code of the Russian Federation such a sign is not provided. In the resolution of the Plenum of the Supreme Court of the Russian Federation of 10.02.2000 No. 6 (lost strength) noted that if the provocation of bribes or commercial bribe was performed by an official using the official position, they should additionally qualify under Art. 285 of the Criminal Code of the Russian Federation (paragraph 25). Although this crime is not included in the list of crimes of corruption or crimes1.
In the current resolution of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24 "On judicial practice on bribery and other cases corruption crimes"It is noted that" from the crime provided for by Art. 304 of the Criminal Code of the Russian Federation, the incitement activities of law enforcement officers who provoke an official or a person who performs managerial functions in a commercial or other organization, for accepting a bribe or a commercial bribery, "(p. 34). But at the same time there are no explanations to how to qualify the deed: as abuse of official authority or as an exception of official powers.
The decree only notes that "these actions are committed in violation of the requirements of Article 5 of the Federal Law of August 12, 1995 No. 144-FZ" On Operational Activities "and consist in transferring a bribe or subject of commercial bribery with consent or on the proposal of an official or Persons performing managerial functions in a commercial or other organization when such consent or proposal was obtained as a result of the declining of these persons to obtain values \u200b\u200bunder circumstances, testifying that without the interference of law enforcement officers, the intent on their receipt would not have arisen and the crime would not I would be committed "(p.34).
According to B.V. Volzhenkina and P.S. Yani, "If an operational worker with provoking a behavior officer and will not be responsible for complicity in obtaining a bribe, he, however, is subject to criminal responsibility for the official crime under Art. 286 of the Criminal Code. With its actions .., clearly emerging beyond its powers defined in this case, taking into account the legislation on the Horde, the operational employee significantly violates the interests protected by law
1 Indication of the Prosecutor General's Office of Russia No. 387-11, Ministry of Internal Affairs of Russia No. 2 dated September 11, 2013 (Ed. Dated 24.04.2014) "On the introduction of lists of articles of the Criminal Code of the Russian Federation used in the formation of statistical reporting".
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societies and states, which is expressed in a real attempt of an official to make an official crime, to realize the criminal intention that has formed under the influence of persuasion of law enforcement officers "2.
But the provocation of bribes (or commercial bribery), in fact, provides for responsibility only for provocation in relation to the receipt of a bribe "bribent" (pseudo-propeller). Bribery also includes not only receiving a bribe (Art. 290), but also a gift of bribes (Art. 291 of the Criminal Code of the Russian Federation), and mediation in bribery (Art. 291.1 of the Criminal Code of the Russian Federation). Thus, the content of Art. 304 of the Criminal Code is a narrower concept than it could be assumed based on the name.
In special literature there are proposals for the inclusion in the Criminal Code of the Russian Federation of a separate article: "Provision of bribes: Intentional actions of a police officer either another official for the artificial creation of conditions under which the person is forced to the country of bribes" 3. With all the interaction of the wording, it should be noted that it would be more logical to establish responsibility not only for the provocation of receiving a bribe, but also for the provocation of the cottage of the bribe.
In this case, a provocateur in this case can be both a pseudo-collar and other official, as well as a person who is not official.
Consider the situation when there is a provocation of giving bribes from the side of the pseudo-collar. The composition of the crime provided for by paragraph "B" part 5 of Art. 290 of the Criminal Code of the Russian Federation "Getting a bribe, committed with extortion of bribes," is not covered, firstly, based on the interpretation of extortion of bribes, and secondly, from the purposes prosecuted in the commission of such actions.
1. In accordance with the Decree of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24 "On judicial practice on bribery and other corruption crimes" under the extortion of a bribe should be understood not only by the demand of the official to give a bribe, conjugate with the threat to commit (inaction), which may harm the legitimate interests of the person, but also a deliberate creation of conditions under which the person is forced to convey these items in order to prevent harmful consequences for their law enforceable interests (for example, an intentional violation of the courts established by the law of consideration of citizens) "(p. 18) 4. That is, in the case of the requirement to transfer a bribe for illegal actions (inaction) from an official, a sign of "with extortion of a bribe" is not formed (for example, not to constitute a protocol for violation of traffic rules).
2. When provocating a bribe, an official may accept it, but not for certain actions (inaction), which includes, for example, in his official powers, and in order to artificially creating evidence of giving bribes.
Although under other circumstances, in accordance with the Decree of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24 "On judicial practice on bribery and other corruption crimes" "Obtaining an official or a person performing managerial functions in a commercial or other organization, Values \u200b\u200bfor the action of actions (inaction), which are included in its powers either that it could be made using the official position should be qualified as receiving a bribe or commercial bribery regardless of the intention to make the specified actions (inaction) "(p. 24) 5.
Cases of provocations of giving a bribe of a different officer, as well as a person who is not official, as well as provocations from the pseudo-collar, could be covered by the concept of "incitement to committing a crime - bribery", but such a sign of complicity as "unified comprehensive intent" in this There is no situation.
2 Yani P.S. Provocation of bribes // Laws of Russia: Experience, Analysis, Practice. 2007. No. 1.
3 Bahautdinov F.N. Provocation of citizens to the country of bribes // legality. 2011. No. 3. ATP "ConsultantPlus".
4 The qualifications of the deed does not matter whether an official has a real opportunity to carry out the specified threat if the person who submitted a bribe was founding to fear the implementation of this threat (for example, the investigator, knowing that the criminal case is subject to termination due to the lack of invia the composition of the crime, threatens the accused to direct the case with the accusatory conclusion of the prosecutor, and, having received a bribe, the case provided by law The grounds stop) (p. 18).
5I only "if the specified person received values \u200b\u200bfor the accomplishment of actions (inaction), which in reality it cannot be carried out due to the lack of official authority and the impossibility of using their official position, such actions in the availability of intent on acquisition of values \u200b\u200bshould be qualified as fraud, Perfect by a person using their official position "(p. 24).
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Provocation of mediation in bribery - represents a similar situation.
This situation on the responsibility of officials for provocative behavior (actions) is permitted on the basis of positions defined European Court by human rights. In a widely known solution in the Bannikov against Russia case, it is noted that the criterion developed by the court for the differences between the provocation of the crime in order to initiate the permitted behavior is the following: "Whether representatives of the state remained a hidden operation within the framework of" actually passive "behavior or They went beyond its limits, acting as a provocateurs agents, and also an assessment of the procedure, through which the application for incitement is allowed "6. At the same time, the obligation to prove that provocations were not, provided that the arguments of the accused are not absolutely incredible, assigned to the authorities to investigate7.
"Thanks to the ECHR solutions, perceived by the Supreme Judicial Body of Russia, the provocating-no-incitement activities of law enforcement officers should be considered as a new, not yet reflected in ch. 8 of the Criminal Code of the Russian Federation the circumstances, excluding the crime of the act committed by the person in respect of which this activity was carried out "8.
It seems that since "circumstances excluding the crime of acts are common, and the provocation of the crime is actually one of them, the application general provisions Perhaps not only in relation to the provocation of receiving a bribe, but also provocations of giving bribes and mediation in bribery. However, the decision of the issue of the person, which, if there is a provocation of the crime in relation to it, is not criminalized, does not solve the issue of criminal responsibility of the provocateur.
The literature expresses the proposal to make an appropriate norm in the Criminal Code: "Article 291.2. Suggestion of giving or receiving a bribe
The proposal of giving a bribe to the official or the proposal to receive a bribe of such a person in a significant amount - .. "9.
In our opinion, this offer is not successful. First, it involves the commission of a crime with a common subject, and not a special-officer. Secondly, the provocation of a bribe, even if it is committed by an ordinary citizen, aims to subsequently attracting the criminal responsibility of the pseudo-propeller, the psevdovzatkolupler and a pseudo-urinator, which is impossible without the participation of an official.
The question of the qualifications of the issued in such cases should be solved in the same way as in the case of provocation of receiving a bribe, that is, in all cases, the provocations of the bribe (obtaining, cottage, mediation) of the official of the official are qualified under Art. 286 of the Criminal Code. This position corresponds to the explanations of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 "On judicial practice on the abuse of abuse of official authority and the excellence of official powers" (p. 19) 10.
Thus, the provocation of bribes in any form (provocation of receiving a bribe, procurement of a bribe, a procurement provocation in bribery), committed by an official in connection with the execution of official duties to combat corruption, is official crime - Exceeding officials.
In the list No. 23 of crimes of corruption orientation11 Exceeding of official powers is not indicated as a crime of corruption. The composition of this crime (in contrast to the abuse of official powers) does not provide for
6 Review of the judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2011 (approved by the Presidium of the Supreme Court of the Russian Federation 09/28/2011).
7 Decree of the ECHR dated 04.11.2010 "Bannikov's case against the Russian Federation" (Complaint No. 18757/06).
8 Commissioners V.S., Yani P.S. Provocative-incitement activities of the person in respect of an official as a circumstance that excludes responsibility for receiving a bribe // legality. 2010. No. 9.
9 Maltsev V.V. Do not provoke, and prevent bribery // legality. 2013. № 9.
10 Exceeding officials can be expressed in committing an official of actions that no one and under any circumstances are entitled to commit (inclined to commit a crime).
11 Indication of the Prosecutor General's Office of Russia No. 387-11, Ministry of Internal Affairs of Russia No. 2 dated September 11, 2013 (Ed. Dated 04.24.2014) "On the introduction of the List of Articles of the Criminal Code of the Russian Federation used in the formation of statistical reporting".
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the quality of the mandatory constructive feature of the presence of mercenary or other personal interest. In sub. 3.3 List of crimes of corruption orientation Excess official powers belongs to a group of crimes of corruption and only "if there is a mark on the statistical card for the commission of a crime with the mercenary motive" (CC. 1, 2, and paragraph "in" Part 3 of Art. 286). However, this crime can be committed not only from mercenary, but also from other personal interest (if the provocation of the bribe is committed by an official in order to, for example, artificial improvement of performance indicators).
Under other personal interest is meant "The desire of an official to benefit the profits of a non-property, due to such motives as careerism, family, desire to embellish the actual position, get a mutual service, enlist the support in solving any question, hide its incompetence, etc. As the use by an official of their official authority, contrary to the interests of the service, should be considered protectionism, under which it is understood by the illegal assistance in employment, promotion, promotion of subordinate, as well as other patronage in service, perfect from mercenary or other personal interest "(paragraph 16) 12.
But in the absence of direct mercenary interest At an official excess of their official powers does not relate to crimes of corruption or, which seems not quite logical.
In the decision of the Plenum of the Supreme Court of the Russian Federation of July 9, 2013 No. 24 "On judicial practice on bribery and other corruption crimes" contains explanations about the legal assessment of inciteting actions of law enforcement officers who provoke an officer to accept bribes, allowing to consider such Actions as a corruption crime.
Received 11/18/14
Provocation of a Bribe AS A Corruption Crime, Committed With The Use of Official Position
DiffiCult Problems of the Penal Crime Assessment Under Art. 304 of the Criminal Code Are Considered; The Ratio of Bribe Provocation or Commercial Bribery With Compositions of Corruption Offenses Is Analyzed; GAPS IN THE CRIMINAL LAW WITH REGS IN THE CRIMINALIZATION OF BRIBE PROVATION OR PROVATION OF MEDIATION IN BRIBERY ARE REVEALED. Provocation of a Bribe (Or Commercial Bribery) Implies Responsibility Only for the provocation AGAINST Bribe-Taking by A "Bribe-Giver". Bribery Also Includes Not Only Receiving A Bribe (Art. 290) But Also Giving A Bribe (Art. 291 of the Criminal Code) And Mediation In Bribery (Art. 291.1 of the Criminal Code). Due to the Decisions of the Echr, Perceived by The Highest Judicial Authority in Russia, Provocatively-Inflammatory Activity of Law Enforcement Officers Should Be Considered As a New Cause, Not Yet Reflected in Ch.8 Of The Criminal Code, That Excludes The Criminality Of A Deed Committed by A Person Against Whom These Activities Are Conducted.
Keywords: Provocation of Bribery, Excess Of Power, Corruption Crime.
Rovneko Vera Vladimirovna, Rovneyko V.V.,
candidate of Law Sciences, Associate Professor Candidate Of Law, Associate Professor
FGBOU VPO "Udmurtsky state University»UDMURT STATE UNIVERSITY
426034, Russia, Izhevsk, ul. University, 1 (Korp. 4) 462034, Russia, Izhevsk, Universitetskaya St., 1/4
E-mail: [Email Protected] E-mail: [Email Protected]
12 Resolution of the Plenum of the Supreme Court of the Russian Federation of October 16, 2009 No. 19 "On judicial practice on cases of abuse of official powers and exceeding official powers."
The topic of corruption B. recent months turned into one of the most discussed. The arrest is now the former governor of the Kirov region Nikita White, the emergence of representatives of the leadership of the Moscow CCR, accusations of the deputy head of the management of the Main Department of the Main Directorate among the inhabitants of Sizo Lefortovo economic security Dmitry Zakharchenko Ministry of Internal Affairs and, finally, who has become a shock for most Russians, the fact of the initiation of a criminal case against the head of the Ministry economic Development Alexey Ulyukayeva - all this involved led to the fact that the question of bribes became an integral part of the Russian information makers.
At the same time, quite recently, the problem of "Mzompheti" received a fundamentally different sound. After the Investigative Committee opened the case of extortion against the two deputies of Aman Tuleyev, the Kemerovo Governor did not dissolve from subordinate or emphasize their neutrality in this matter.
On the contrary, the head of the region publicly stated that his staff could consciously provoke, and in reality they, as Amana Gumirovich believes, innocent. Thus, there could be an episode of a bribe provocation, i.e. Crime provided for Art. 304 of the Criminal Code of the Russian Federation.
And was the bribe? Or about the benefits of the presumption of innocence
As a result, the question arises: what are the high-ranking officials, against which the charges in obtaining a bribe were put forward in recent months? Who are they are criminals or victims of unscrupulous law enforcement officers who decided to build a career on a threshold or disintegrate by their cartridge official?
The possibility of the latter, alas, is no doubt. It suffices to recall that among the defendants of high-profile criminal cases initiated in recent years, the holders of the general shoulder pursuit of the Ministry of Internal Affairs. The presence of corrupt officials even in the highest echelons of law enforcement structures makes it possible to commit their subordinate to the maximum wide range of crimes.
Who, when and why provokes businessmen
What is a "classic" provocation of bribes? For the most part, everything comes down to an attempt to transfer the official (without his consent) of money, securities, other property, providing an official of the services or the provision of rights to artificially creating evidence of the crime.
In the organization of provocations, employees responsible for combating corruption can take part. In most cases, we are talking about representatives of the FSB, the Main Department of Economic Security and Countering Corruption of the Ministry of Internal Affairs of Russia and the Economic Security Divisions and Anti-Corruption territorial organs of this ministry.
The provocations of bribes are resorted in cases where the security forces should urgently complete the indicators of opening or eliminate the competitor with the business structures under control. Funny law enforcement officers also resort to such methods in cases where the task is to gain significant information that can be used to initiate a case against a high-ranking civil servant or a large merchant, however, the ability to mined this information legitimate ways There are no (or investigators do not want to bother the collection of evidence within the framework of established procedures). In addition, the provocation of bribes is a wonderful (from the point of view of unfair law enforcement) a way to improve work statistics, demonstrating the head of the growth of crime disclosures.
The Criminal Code provides for a sufficiently severe punishment for such manipulations: in the maximum amount, it may turn to the "Werewolf tile" with imprisonment for up to 5 years and deprivation of the right to hold certain positions or in principle to work in law enforcement agencies For up to 3 years (or without).
But forgetting about their debt, employees of the investigating authorities are conscious of this risk, believing that the possible benefit will pay off all potential threats. Or they supported the idea of \u200b\u200bhigh-ranking patrons whose protection will help avoid deserved punishment.
Example from practice
How does a bribe provocation attempt? As a specific example, the events that occurred with the deputy chief of the regional division of the branch of one of the leading transport companies in Russia can be given.
In order to obtain testimony against the leadership of Mrs. Sh., Representatives of the prosecutor's office, the RF IC and the FSB decided to organize a provocation, to make the conclusion of the accused of custody, and then, by means of pressure (including - by depriving sleep on more than 45 hours), to force testify against His leadership.
The act of provocations passed as follows. Head of one of the laboratories of the departmental university Mr. D. entered the official room, in which at that time was sh. And a number of her subordinates, sat down to the table, followed by, and, not saying anything, secretly put the envelope with money , after which silently came out. On the threshold of the office, I was already waiting for employees of the regional department of the FSB.
"Do not trust, do not fear, do not ask". Or how to lead a suspect
Someone may seem that high-ranking person is most often becoming victims of bribes, and this problem is not relevant for people outside the narrow circle of the elite. This approach is incorrect.
First, the calm attitude of citizens to this kind of crime gives rise to the situation when conscientious officials and merchants turn into hostages of corrupt officials, as a result of which the system of power and business begins to work in the interests of the latter. What can eventually not affect the position of ordinary citizens.
Secondly, contrary to the stereotypes, most often the victims of this kind of fraud are not the inhabitants of high cabinets. In most cases, provocation is used in relation to teachers of universities, doctors and teachers (the share of the last two categories accounts for about 30% of all convictions in cases of receipt of a bribe). At the expense of all this, the problem of provocating bribes turns into a question affecting the interests of almost every citizen of Russia.
How should a person act a victim of such accusations? First of all, citizens should be referred to what is happening with the highest possible calm. During the detention, you should not panic and give an excessive value to the procedures conducted by the flows.
Only composure will help to avoid the main mistake: the self-shaped under pressure is unclean to the hand of law enforcement officers. If a person realizes that, by virtue of its stress, it may not withstand pressure, should immediately declare his right, provided for by Art. 51 Constitution of the Russian Federation: No one must testify against himself. This step will benefit the time until an experienced lawyer takes place for the case.
It is also necessary to insist on compliance with the right provided for by Art. 96 Code of Criminal Procedure. No later than 3 hours from the moment of delivered to the investigator or in an inquiry authority, the detainee has the right to one telephone conversation in Russian in the presence of the investigator, the investigator in order to notify close relatives, relatives or close persons about their detention and location. The faster family members turn to an experienced lawyer For the protection of the interests of a businessman, the smaller the risk that the entrepreneur will be in the ground not so distant, and his business will go.
In the event that a preventive measure is elected in the form of detention (courts in 95% of cases approve of applications for the use of this tool), should always be remembered about the logic of the actions of the investigation. Unclean law enforcement officers from the suspect requires primarily recognition of guilt.
Having achieved a conclusion of a person in custody, they begin to tempt him, offering in return for the confessions to replace the conclusion of the detention in the SIZO home arrest. Many do not stand and agree to this transaction, not understanding that during judicial trial The details of the recognition will form the basis of the indictment, i.e. They may turn either much more long and harsh deprivation of freedom, or a fine of astronomical sizes.
For example, if a sum of 25 thousand rubles was discovered in an embedded envelope, but less than 150 thousand, the accused will be liable in the form of a fine of up to 1.5 million or imprisonment for up to 6 years (not to mention possible "Bonuses" in the form of deprivation of the right to occupy certain positions, additional fines, etc.). For this reason, in no case cannot be sent to meet the proposals of the investigator to recognize your guilt.
The rest can only be recommended to resort to the services of a well-proven lawyer. When choosing a defender, first of all, one should listen to the advice of family members and friends. If none of the loved ones can recommend a good specialist, it is best to study the latest solutions to local criminal courts.
It is important to realize that the stronger the practice of a lawyer in the criminal sphere, the greater the amount will have its fee. In matters when a bet on Konou is a personal freedom and future business, bargaining regarding the cost of services is inappropriate: for the defeat in the courtroom, the court will inevitably have to pay a much higher price.
Lawyer Viktor Naumov