As noted, guilt does not exhaust the content of the subjective side of the crime. Intention and negligence characterize mental attitude persons to the socially dangerous actions (inaction) committed and the socially dangerous consequences that occurred, but they are insufficient to explain the reasons criminal behavior and the motives that guided it when committing the crime. To do this you need to install motive and purpose crimes.

Any human behavior is based on certain motives, determining its social meaning and target orientation. The meaning of motive in human behavior is diverse. Motive primarily plays a motivating role. It acts as a source of human activity, a stimulus for his behavior.

Emerging objective circumstances do not uniquely determine a person’s behavior. His behavior, including socially dangerous ones, is always selective and purposeful. A person voluntarily chooses behavior, in accordance with both external conditions and circumstances, and with his personal inclinations and intentions. The characteristics of the motive for unlawful behavior play an important role in this. The motive has meaning-forming meaning. It helps to understand how a person explains his behavior, what circumstances he associates with committing a crime, and what purpose he pursues.

Under motive for the crime understands the motivation that played decisive role in choosing one or another behavior option and in committing a criminal act. The motive is most often based on needs. In addition to needs, interests and inclinations can be motivations to commit a crime. Willpower and the dynamic nature of behavior depend on the characteristics of the motive. Of decisive importance is the place the drive underlying the motive occupies in the structure of the personality and the extent to which this drive is related to the general orientation of the personality.

The motive is directly related to the goal. The motive determines human behavior not in itself, but only in connection with the goal. Motive and goal are closely related concepts, but not identical. They differently characterize the volitional process that takes place when committing a criminal act. Motive answers the question why a person performs this or that action. the goal determines what a person strives for when committing a crime.

The motive and purpose of the crime have important criminal legal and criminological significance. They make it possible, first of all, to establish the truth in the case. Different motives have an unequal influence on a person’s will and consciousness, on his emotional state and, consequently, on his anticipation of the consequences of his actions, on his attitude towards what he has done. The motive, being directly related to the personality, its socio-psychological characteristics, plays an important role in the individualization of criminal liability and punishment, when resolving other issues of criminal law.

The motive and purpose are often indicated among the constructive or qualifying features of certain elements of intentional crimes (clauses “a”, “e”, “f”, “g” part 2 of article 111, paragraph “h” of part 2 of art. 126, 205, 206 of the Criminal Code, etc.).

Motive and purpose of committing a crime

The criminal law indicates that a person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences for which his guilt has been established (Part 1 of Article 5 of the Criminal Code). Guilt constitutes the content of the subjective side of any crime. At the same time, a correct establishment of the subjective side of a crime is unthinkable without studying and revealing the motive and motive behind its commission, since without them it is impossible to form a full-fledged idea of ​​the nature of the process occurring in the mind of the subject at the time of the commission of the act.

The concept of “motive” comes from Lat. “moveo” - to move and means the motivating reason for a person’s actions.

From a psychological point of view, crime is a type of behavior and human activity. Therefore, the criminal law concept of “motive for a crime” should be based on the definition of motive developed in general psychology, and psychologists understand motive as factors of individual activity. However, nothing has changed since one of the most famous researchers of crime motives B.S. Volkov noted that “the dialectic of the relationship between psychological and criminal law concept The motive is very simple: it expresses the relationship between the general and the particular, the genus and the species.” Therefore, it is necessary, without abandoning the general psychological characteristics that generally characterize the motive of a person’s command, to reveal in more depth and detail those of them that reflect the specifics of criminal behavior. In addition, we must not forget that even psychologists who recognize the existence of a motive and endow it with the initial incentive function of human activity, disagree on what specific phenomena underlie it. Some of them recognize a single factor as a motive - needs, others do not deny the existence of other motives, namely emotions, interest, etc.

For the science of criminal law, it is not of fundamental importance what psychological phenomenon underlies the motive for committing an act, since what psychologists call needs, interests, desires, aspirations, and values, in the process of qualifying an act can easily act as a motive for a crime. For example, jealousy in psychology is a feeling, and for criminal law, in the case of a murder motivated by jealousy, it is one way or another the motive for the crime.

So, motive for the crime- these are internal motivations to achieve a specific socially dangerous result, causing a person’s determination to commit a crime.

Motives are characteristic of all crimes committed with direct intent; their presence can also be seen when committing actions (inaction) with indirect intent. If we talk about motives when careless crimes, then these are the motives of socially dangerous behavior that led to a criminal result, and not the motives of a predetermined, calculated crime. In relation to crimes committed through negligence, it is incorrect to talk about criminal motives and goals.

In every volitional act, the motive determines behavior not in itself, but only in relation to the goal, in connection with the results that a person strives to achieve by committing this or that act. Therefore, the next element that makes up the motivational sphere is the goal.

Purpose of the crime- this is an internal model of the desired result that a person strives for when committing a crime.

Motive and goal are closely related, correlative, but do not coincide either in scope or content of the concept, that is, they must be distinguished from each other. Thus, the motive for murder during robbery is greed, and the goal is to take a person’s life.

Sometimes the goal is unreasonably identified with the consequences of the crime. To exclude such an understanding, it should be borne in mind that the goal, as a sign of the subjective side of the crime, covers the final result (often located outside objective side corpus delicti), which the perpetrator seeks to achieve through the commission of a crime. The goal is what the guilty person strives for when committing a crime, and its achievement or non-achievement, in contrast to social dangerous consequences the qualifications of the offense may not be affected.

As already noted, the criminal legal meaning of motive (motives) and purpose as signs is quite multifaceted.

Firstly, motive and purpose can act as the main features of a crime when they are specified in the disposition of a specific article of the Special Part of the Criminal Code. In their absence, there is no corpus delicti. Thus, desertion (Article 338 of the Criminal Code) can only be considered such unauthorized abandonment of a unit or place of service, which is committed in order to evade passage military service.

Secondly, motive and purpose can act as signs, the presence of which forms a qualified crime. Their presence turns the main team into a qualified one. So, part 1 of Art. 105 of the Criminal Code provides for punishment for murder without aggravating or mitigating circumstances, and in paragraph “and” part 2 of the same article, responsibility for murder for hooligan motives is established.

Thirdly, motive and purpose may be circumstances mitigating or aggravating punishment. So, subject to the conditions specified in Part 3 of Art. 61 and part 2 of Art. 63 of the Criminal Code, motives, for example, political, ideological, racial, national or religious hatred or enmity or hatred or enmity in relation to any social group(Clause “e” Part 1 of Article 63 of the Criminal Code) are considered as aggravating circumstances and increase the punishment for any crime. On the contrary, the motive of compassion (clause “e” of Part 1 of Article 61 of the Criminal Code) is recognized as a circumstance mitigating punishment for any crime.

An analysis of legislation and the practice of its application indicates a variety of motives for which crimes are committed, and therefore there is a need to streamline them. For a correct criminal legal assessment, the classification of motives and goals is of great importance.

In the history of criminal law, many attempts have been made to classify motives. In 1867, at the congress in Florence, a 14-member classification of crime motives was established.

One of the first domestic studies of the motives of criminal behavior was the work of M. P. Chubinsky. He divided motives into two groups: 1) sublime or generally worthy of attention; 2) base and reprehensible.

Today, the most practical classification should be considered to be one that is based on a combination of moral and legal assessment of the motives and goals of the crime. And despite the fact that the motives and goals of the crime are independent categories, general criteria apply to their classification. From this point of view, the motives and goals of the crime can be divided into three main groups:

• motives and goals associated with establishing criminal liability for a specific act (for example, theft - Article 158 of the Criminal Code);
• motives and purposes with which the criminal law connects the toughening of punishment (for example, selfish motives, hooligan motives, revenge, blood feud, personal interest, national, racial, religious hatred or enmity, removal of organs or tissues of the victim, concealment of another crime or facilitation of its commission and so on.);
• motives and goals with which the criminal law connects the mitigation of punishment (for example, the motive of compassion, the goal of ridding the victim of suffering, etc.);
• motives and goals with which the criminal law does not connect either the establishment of criminal liability, or the toughening or mitigation of punishment (for example, the motives for murder provided for in Part 1 of Article 105 of the Criminal Code).

IN law enforcement practice The importance of the motive for a crime is often underestimated. In this regard, the Supreme Court of the Russian Federation in its decisions has repeatedly pointed out the importance of establishing this characteristic. Yes, Plenum Supreme Court The Russian Federation in its resolutions of April 29, 1996 No. 1 “On the judicial verdict” and of January 27, 1999 No. 1 “On judicial practice in murder cases (Article 105 of the Criminal Code)” emphasizes the need to establish the motives and purposes of the crime along with other the circumstances of its commission.

In addition to its significance, the motive for the crime has important evidentiary value in a criminal case. It is no coincidence that criminal procedural legislation includes the motives for a crime among the circumstances that constitute the subject of proof (clause 2, part 1, article 73 of the Code of Criminal Procedure).

The motives and purposes of a crime may, in some cases, act as exceptional mitigating circumstances and, in this sense, justify, for example, the appointment of more mild punishment than provided for this crime (Article 64 of the Criminal Code).

The Supreme Court of Russia outlawed the classic bureaucratic principle: “how not to please your loved one.” The highest court essentially equated protectionism with abuse official powers.

Without exaggeration, this revolutionary interpretation is contained in the new resolution of the plenum of the Supreme Court on judicial practice in cases of abuse of power and abuse of power. This document should henceforth lie on the table not only of people in robes, but also of people in suits and ties, that is, officials. After all, everything that is written in the resolution concerns them directly.

Courts considering cases of crimes against the civil service are recommended to evaluate not only the official’s self-interest, but also “other personal interests.” For example, the desire to benefit from a non-property nature, caused by such motives as “careerism, nepotism, the desire to embellish the real situation, to receive a mutual favor, to enlist support in resolving any issue or to hide one’s incompetence.”

After all, officials do not always commit crimes for the sake of a banal bribe. For example, most criminal cases brought against bailiffs, relate to forgery for purely career reasons. As a rule, such bailiffs somehow manipulate documents to improve statistics in a report. There were many examples in the police when inspectors drew up reports even on the dead, they say, he walked around the city drunk and became violent. So what to do? The authorities demand a plan for violators, otherwise they will lose seven skins.

So we have to come up with rowdies and alcoholics, drawing up protocols in absentia, according to the list of residents. But there is a problem: all this is illegal, and an official, whether in uniform or not, can be held accountable for such bureaucratic tricks.

If someone’s son or nephew suddenly began to rise quickly in their career, this is also a reason to think, including for law enforcement officers. Of course, even a minister can give birth to a child prodigy, but more often than not, the father somehow helps the child. Parental duty, of course, is sacred, but within reasonable limits. Therefore, the Supreme Court proposes to consider both criminal offense(usage official their official powers contrary to the interests of the service) protectionism. And so that no one has any misunderstanding, the plenum gave an official definition of the term: protectionism is “illegal assistance in employment, promotion, encouragement of a subordinate, as well as other patronage of the service, committed out of selfish or other personal interest.”

Of course, I would like to hope that tomorrow, or rather, as early as yesterday, careers will no longer depend on the will of their own or other people’s patrons. But not everything is so simple, a lot depends on will law enforcement and judicial practice. After all, the issue is very delicate, and bosses do not always promote someone’s advancement out of family or friendly feelings. In the end, everyone is interested in smart workers, and it wasn’t yesterday that a system emerged where the person who goes to the top pulls his team along with him. It seems to be protectionism, but in the interests of the cause. True, there is a flip side to the coin when the boss selects people based on the principle of personal loyalty. In this case, the matter usually suffers. But is it really possible to bring such a boss to justice? Experts doubt it.

But everything acquired by back-breaking and dishonest means can be taken away from the official. The Supreme Court recalled that money, valuables and other property obtained as a result of abuse of power are subject to confiscation.

CRIMINAL LAW AND CRIMINOLOGY

V. V. ROMANOVA UDC 343.3/.7

OTHER PERSONAL INTEREST AS A MOTIVE
COMMITMENT OF A CRIME

The psychological mechanism of a criminal act, which corresponds to legal concept guilty behavior includes making a decision about illegal behavior (and its implementation) based on a specific motive (group of motives).

Doctrinal interpretation of the motive of the crime and its legal significance remains controversial. This is primarily due to the fact that there is no generally accepted definition of motive. Issues of motivation (set of motives) of human behavior have been studied and are being studied by various sciences, but this moment Research is far from conclusive.

The motif comes from the French word motif , which, in turn, comes from the Latin moveo- moving.

In psychology, motive is defined as an incentive to commit a behavioral act, generated by a system of human needs. The concept of motive is revealed through the terms attraction, interests, desires, life goals and ideals, intentions, needs, considerations, state, personality traits, etc.

A number of researchers adhere to the position of A. N. Leontyev, who identifies two functions of a motive that reveal its essence: motivation and meaning formation. In other words, if a person needs to do something, but there is no desire, he asks the question: “Why do I need this?” In this way, a search and emergence of a motive occurs. In this case, the motive and meaning are consonant.

There are many points of view regarding the definition of motive, but, summarizing them, we believe that they all indicate that, depending on the situation, a motive can be any mental manifestation (intention, need, desire, consideration, beliefs, interests, state, etc. .), which shapes the direction of a person’s will and determines the content of his actions (inaction).

At the same time, the motive for criminal behavior requires additional characterization.

Thus, the motive of a crime in the criminal legal aspect is interpreted as an internal motivation determined by certain needs and interests, causing a person’s determination to commit a criminal act in connection with the desire to achieve a certain goal.

The significance of the motive for a crime is determined by the fact that, firstly, it can be mandatory feature the subjective side of the crime, and also explains why the crime was committed; secondly, in a number of cases, without establishing a motive, it is impossible to resolve the issue of the correct classification of the crime (taking a bribe and abuse of official powers); thirdly, it is often an aggravating or mitigating circumstance; fourthly, it affects the nature and degree of social danger of the act.

It is noteworthy that when describing a motive as a mandatory element of a crime, the legislator uses the terms “motive” or “motivation” (identical in meaning, the concept of “motivation” corresponds to the concept of “motive”), “interest”, “personal interest”. A number of compositions list what exactly the motive should manifest itself in, namely: revenge, blood feud, self-interest, hatred, enmity, etc.

The most difficult to understand concepts are “interest” and “personal interest”. Controversial in in this case questions are presented about which element of the composition

crimes they relate to and what is their criminal legal status. Discussions are being held as to whether interest and interest are a type of motive for a crime (motive) or whether they are circumstances characterizing the emotional state of the subject of a crime, which has criminal legal significance, but is not the motive of the crime.

Proponents of the latter position give the following arguments: the main motivating force for action is needs. Interest is a form of manifestation of cognitive needs related to the perceived motives for committing a behavioral act.

Criminal Code Russian Federation liability for committing crimes based on mercenary or other personal interest is provided for in the dispositions of six articles, namely: in Art. 145.1 (“Non-payment of wages, pensions, scholarships, benefits and other payments”), Art. 170 (“Registration illegal transactions With real estate"), Art. 181 (“Violation of the rules for the manufacture and use of state hallmarks”), Art. 285 (“Abuse of official powers”), Art. 292 (“Official forgery”) and Art. 325 (“Theft or damage to documents, stamps, seals, or theft of excise stamps, special stamps or marks of conformity”).

From the very alternativeness of motives, it follows that the legislator did not have in mind any personal motives, but only those that, along with selfish ones, are aimed at extracting some kind of non-material benefit for themselves or for their loved ones. Personal interest is a more capacious concept than the selfish interest of a person in committing a crime.

The interpretation of self-interest in theory and practice has discrepancies.

Thus, in paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19 “On judicial practice in cases of abuse of official powers and exceeding official powers” ​​it is explained that other personal interest is the desire of an official to extract non-property benefit, caused by such motives as careerism, nepotism, the desire to embellish the real situation, to receive mutual favors, to enlist support in resolving any issue, to hide one’s incompetence, etc.

Should the desire to gain non-material benefits be generated by base motives?

B.V. Zdravomyslov wrote that for a correct criminal legal understanding of “other personal interest” it is important to limit it to such a range of motives that indicate the base interests of a person. This position is justified by the fact that the use of the concept “other personal interest” does not reflect the negative, antisocial connotation that other base motives have.

The term “other base motives” has been used in criminal law for almost a hundred years.

According to paragraph “a” of Art. 142 of the Criminal Code of the RSFSR of 1922, premeditated murder was considered qualified provided it was committed out of self-interest, jealousy and other base motives. This wording was retained in paragraph “a” of Part 1 of Art. 136 of the Criminal Code of the RSFSR 1926 until 1960. However, even then the law did not provide an exhaustive list of base motives or their specific definition. One of the attempts to reveal the essence of such motives was the explanation in the Resolution of the Plenum of the Supreme Court of the RSFSR dated March 16, 1925 (now not in force) that in relation to Art. 142 of the Criminal Code of the RSFSR of 1922 qualified murder for greed, jealousy and others

There is no legal definition of base motives. The list of base motives is arbitrary and evaluative.

In scientific and educational literature base motives are traditionally revealed as grossly violating the norms of morality and ethics accepted in society. These include personal motives: revenge, envy, the desire to use a child at one’s discretion, jealousy, cowardice, as well as national, racial, political, religious motives, etc., but the criteria for recognizing a motive as vile have not been developed.

It seems to us that it is impossible for the legislator to allocate clear criteria recognition of motives as base is explained by the fact that the norms of morality and morality accepted in society are changeable due to the evolution of society, which also entails cultural evolution, which has a significant impact on social models, among which morality and morality stand out, acting as synonyms.

Traditionally morality (from lat. moral" es- generally accepted traditions, unspoken rules) is defined as the socially accepted ideas about good and bad, right and wrong, good and evil, as well as a set of norms of behavior arising from these ideas. Along with this, morality is often understood as any generally accepted (elsewhere) system of norms of individual behavior. Differences in interpretations are due to differences in understanding the source of morality and the content of the moral ideal.

The use of the terms “morality” and “morality” in the criminal legal aspect entails the insufficiency of legal guidelines for recognizing base motives as the motive for a crime.

In the Criminal Code of the Russian Federation, selfish or other base motives are provided for in the design of two crimes: in Art. 153 (“Child Substitution”) and Art. 155 (“Disclosure of the secret of adoption”). The use of these compounds is difficult if the act is not committed for selfish reasons.

For example, actions of secretly replacing someone else’s child with their own are immoral, immoral and condemned in society, but not criminally punishable, provided that the parents had the intention of abandoning their own child if its gender does not match the desired one. Substituting the gender they desired for a newborn actually gave the switched child a chance not to be an orphan. Under such circumstances, a secret substitution is almost a socially useful act, and therefore, the motive that guided the person who replaced the child cannot be called base. Thus, in some way, the crime is justified. Wherein public relations ensuring the normal functioning of the family, the child maintaining family ties with his blood family, harm is caused regardless of the motive of the act.

The legislator's use of the term “base motives” in Art. 153 and art. 155 of the Criminal Code of the Russian Federation unreasonably narrows the scope of application of these norms, which does not meet the needs of practice. At the same time, if the wording of the motive were changed to another personal interest, such facts would not remain outside the framework of criminal law regulation.

In our opinion, any motive and purpose that constitute the psychological basis of a crime that causes harm to public relations specific people, cannot be considered as socially useful and for this reason alone have an antisocial connotation. Accordingly, a person, guided by the satisfaction of some personal interest, causes harm to the object of the crime - encroaches on the rights and freedoms of other persons, on relations protected by law. This reveals the negative nature of the motive, which served as an impetus not just for the person’s behavior, but for him to commit a crime.

Based on the above, it seems inappropriate to use the concept of “other base motives” instead of the concept of “other personal interest”.

There is a problem of correlation between other personal interests and falsely understood interests of the service.

This problem has not been uniformly solved by science. One group of scientists allows for an expanded interpretation of the motive abuse of office, in which the falsely understood interests of the service would be included in its content as one of the varieties. Others clearly speak out about the inadmissibility of recognizing the falsely understood interests of the service as a type of personal interest.

To reveal the essence of the falsely understood interests of the service, it is necessary to establish what is included in the interests of the service of the person who committed the crime.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 19 of October 16, 2009 “On judicial practice in cases of abuse of official powers and exceeding official powers” ​​recommends that the use by an official of his official powers contrary to the interests of the service (Article 285 of the Criminal Code of the Russian Federation) be understood as the commission of such acts that, although they were directly related to the exercise by an official of his rights and duties, were not caused by official necessity and objectively contradicted both the general tasks and requirements for the state apparatus and the apparatus of bodies local government, as well as those goals and objectives for the achievement of which the official was vested with the appropriate official powers.

The provisions enshrined in regulatory legal acts reveal the content of the interests of the service.

If an official was in good faith mistaken about the compliance of his actions with the interests of the service and this is objectively due to contradictions, discrepancies and inaccuracies in regulatory documents regulating the rights and duties of an official, there is no element of abuse of official powers.

At the same time, a bona fide mistake must be distinguished from the inattention and imprudence of an official, in which it is possible to qualify his act as negligence, but subject to the presence of all other mandatory signs of this crime.

In our opinion, recognizing the falsely understood interests of the service as a special case of personal interest is unacceptable.

Adhering to the same position, in his dissertation research A. N. Kharchenko points out that “when a subject acts out of falsely understood interests of the service, he does not have an antisocial interest, and, accordingly, a motive of other personal interest. Therefore, criminal liability must be excluded."

B.V. Volzhenkin argued his position by saying that “when bringing charges, the corresponding personal motive that guided the official in committing abuse of power must be specifically indicated. The very widespread at one time reference to narrow departmental or falsely understood state or public interests as a sufficient motive for accusations of abuse of office is contrary to the law.”

To distinguish between falsely understood interests of the service and other personal interests, one should turn to the problem of competition of motives in criminal law. B. S. Volkov noted that “the motives with which the law connects the qualification of a crime are always different in their content, which cannot be combined as main motives in one crime. Personal interest and falsely understood interests of an institution and an enterprise are opposing motives that differently characterize the public danger of violation of official duty by officials. The motives for a falsely understood necessity stem not from the desire to obtain personal satisfaction, but from other reasons, from the so-called feeling of false patriotism.”

In our opinion, we can talk about misunderstood interests of the service only if the official believes his actions (inaction) are consistent with the interests of the service, whereas in fact they contradict these interests. An official is guided not by falsely understood interests of the service, but by personal interest, when, through various misconduct creates the appearance of well-being in the area of ​​work entrusted to him, knowing that his actions are contrary to the interests of the service. It is hardly possible to discern misunderstood interests of the service when law enforcement officials, in order to improve their performance, conceal unobvious crimes.

The motive for falsifying performance indicators, as a rule, is careerism, serving managers, the desire not to stand out among colleagues and to create the appearance of prosperity in the entrusted area of ​​work by hiding unobvious crimes, registering non-existent crimes as obvious. We believe that in such cases the person clearly acts contrary to the interests of the service and his personal motives are a priority, as evidenced by arbitrage practice.

Thus: 1) interests and interest can act as a motivating force for a person’s action, i.e., a motive; 2) the concept of “other personal interest” covers all motives other than selfish ones associated with obtaining personal benefits of a non-property nature; 3) recognition of falsely understood interests of the service as a special case of personal interest is unacceptable; 4) falsely (erroneously) understood interests of the service are not covered by the concept of “other personal interest”, but may indicate either the presence of careless guilt in the actions of an official, or “mask” the presence of other personal interest.

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Providing assistance in employment and patronage on duty, out of personal interest, it was decided to consider it a criminal act. The plenum of the Supreme Court classified protectionism as a criminal offense and proposed to consider their use official powers contrary to the interests of the service.

The plenum of the Supreme Court of Russia recommended that judges consider protectionism on the part of officials as a criminal offense. As stated in the resolution of the plenum, such actions should be considered “as the use by an official of his official powers contrary to the interests of the service” (Article 285 of the Criminal Code of Russia).

At the same time, the document provides a definition of the very concept of protectionism, by which the Supreme Court means “illegal assistance in employment, promotion, promotion of a subordinate, as well as other patronage in the service, committed out of selfish or other personal interest.”

As the reasons that prompted the official to protectionism, There can be either a desire to obtain a property benefit, or careerism, nepotism, a desire to embellish the real situation, receive a mutual favor, enlist support in resolving any issue, hide one’s incompetence, etc.

The resolution of the plenum of the Supreme Court was issued on October 16 and clarifies the application of criminal articles about abuse official powers (Article 285 of the Criminal Code) and abuse of official powers (Article 286 of the Criminal Code). In particular, it notes that persons who abuse official powers or exceed their official powers “encroach to a regulated normative legal acts activity government agencies

, local governments, state and municipal institutions, state corporations, armed forces, as a result of which the rights and legitimate interests of citizens or organizations or legally protected interests of society and the state are significantly violated.” At the same time, the plenum of the Supreme Court clarifies that by “the use by an official of his official powers contrary to the interests of the service” (Article 285 of the Criminal Code of the Russian Federation), the courts should understand the commission of such acts that, although they were directly related with the implementation official of their rights and duties, but were not caused by official necessity and objectively contradicted both the general tasks and requirements imposed to the state

the apparatus and apparatus of local government bodies, as well as those goals and objectives for the achievement of which the official was vested with the appropriate powers.
text: Ekaterina Dyatlovskaya

Infox.ru

When considering criminal cases of abuse of power, establishing a motive, including other personal interests, is the responsibility of the court, indicating in the verdict what exactly such a motive is expressed. However, investigative and judicial practice indicates that there are discrepancies in law enforcement practice on this issue. At the same time, it should be noted that, according to studies, approximately 30% of official abuses are committed precisely because of other personal interests. This suggests the importance of the problem of clearly understanding the content of “other personal interest.” And therefore, it is no accident that in the explanations of the Plenum of the Supreme Court of the USSR, and then the Plenum of the Supreme Court of the Russian Federation, attempts were made to define “other personal interest” more fully, with the inclusion, so to speak, indicative list such manifestations, since practice needs, if not the presence of such, which is very problematic, then at least a broader and more specific explanation this concept, defining certain frameworks that do not allow a broad interpretation of the criterion of “other personal interest.” If we carefully analyze paragraph 17 of the resolution of the Plenum of the Supreme Court of the USSR "On judicial practice in cases of abuse of power or official position, abuse of power or official authority, negligence and forgery of official duties" dated March 30, 1990 No. 4, and paragraph 16 of the resolution of the Plenum Supreme Court of the Russian Federation "On judicial practice in cases of abuse of power and exceeding official powers" dated October 16, 2009 N 19, then many questions that arise in court practice will remain unanswered. Moreover, these decisions are essentially similar in disclosing the content of the “other personal interest” motive, and the explanations they contain are not exhaustive. Therefore, it is quite possible to agree with the opinion of the author of the article in the journal “Criminal Law” No. 5 for 2011, A. Sinelnikov, and other scientists that, based on the explanation in the resolution of the Plenum of the Supreme Court of the Russian Federation dated October 16, 2009 No. 19, by definition concept of “other personal interest” it is impossible to draw an unambiguous conclusion about the position of the highest court regarding the question of the correlation between the motives of “other personal interests” and the motive of “falsely understood interests of the service”, which is often found in accusations. In this regard, the author recalls that there is a heated debate on this issue in science. One group of scientists, as noted in the article, allows for a broad interpretation of the motive for abuse of office, in which its content would include “falsely understood interests of the service” as one of the varieties. Others, led by such a famous scientist as B.V. Volzhenkin, rightly share the opinion that it is inadmissible to recognize “falsely understood interests of the service” as a type of personal interest. The author of the article, not without reason, considers the arguments of these authors, who restrictively interpret the wording of the motive as part of abuse of office, to be very convincing and believes that in practice they are not always used. At the same time, he cites a precedent created by the Supreme Court of the Russian Federation, which deserves attention. By the verdict of Orenburg regional court police officers G., S., N. and other officers were found guilty under Art. 292 of the Criminal Code of the Russian Federation in committing official forgery out of falsely understood interests of the service as other personal interest, expressed in the desire to improve the crime detection rates of the BEP branch of the Industrial District Department of Internal Affairs of Orenburg. Among the arguments presented in cassation appeals convicted, it was indicated that their actions were carried out for the sake of corporate interests law enforcement system and not for personal gain. Meanwhile, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, upholding the guilty verdict, agreed with the position of the trial court and at the same time pointed out that “the court’s conclusion that all those convicted, as officials, contributed knowingly false information in official documents out of other personal interest related to the desire to improve crime detection rates in the BEP department of the Industrial District Department of Internal Affairs of Orenburg. These indicators related to the work of each of the convicts, therefore their statements that they were not interested in such indicators are unfounded" (Determination of the Supreme Court of the Russian Federation of November 30, 2006 N 47-006-96).

Thus, the highest court, according to the author, expressed direct approval of the erroneous legal position court of first instance on the interpretation of falsely understood interests of the service as a type of “other personal interest” of the official who committed official forgery. In my opinion, A. Sinelnikov presented, in my opinion, very convincing arguments to justify this position. He considers doubtful the assertion that the convicts, in an effort to improve the performance of the BEP unit, and consequently the police department as a whole, wanted to receive personal benefits of a non-property nature. In this regard, the court limited itself to a general phrase that supposedly “these indicators related to the work of each of the convicts.” But this argument is clearly insufficient. After all, it is obvious that the order of the Ministry of Internal Affairs of Russia dated November 23, 2002, mentioned by the highest court, which was in force during the relevant period of time and regulated the criteria for assessing the activities of internal affairs bodies, did not establish any indicators for assessing the activities of individual employees of criminal police units. And as follows from the text of the decision, it has not been established whether the negative state of the unit’s indicators as a whole could have affected the position of the convicts in the case. Accordingly, the court’s conclusion about the presence of personal interest in the actions of the convicted is based on an assumption, i.e. contradicts Art. 14 Code of Criminal Procedure of the Russian Federation.

Further, in the author’s opinion, the position of the courts seems to be consistent with the law; on the contrary, in such situations, strictly following the provisions of Art. 49 of the Constitution of the Russian Federation, took a tougher position regarding the proof of motive malfeasance. In the example he gave, by the ruling of the judicial panel for criminal cases of the Omsk Regional Court dated March 2, 2006, the verdict of the court of first instance was overturned and the proceedings on the charge of an internal affairs officer of committing a crime under Part 1 of Art. 285 of the Criminal Code of the Russian Federation, indicating the presumptive nature of the lower court’s conclusion that this official received any personal benefit as a result of an unlawful act, which consisted of concealing the victim’s statement of theft. At the same time, the court cassation instance, justifying his conclusions, noted that the court’s opinion about A.’s desire to increase the statistical indicators of the work of the Internal Affairs Directorate of the KAO of Omsk cannot be considered personal interest. It is not visible from the case materials that any promotion of A. in his career was a result of a single concealment from recording a crime. Fear of criticism and reluctance to leave an unexamined report of theft based on the results of duty is not an abuse of power, but indicates the presence of disciplinary offense(Bulletin of judicial practice of the Omsk Regional Court. 2007. No. 1).

Summing up the argumentation by scientists of a restrictive interpretation of the motive of “other personal interest” in the elements of official crimes, A. Sinelnikov rightly notes that one cannot help but pay attention to the fact that this correct approach, when applied in practice, entails the legal impossibility of bringing officials to criminal liability , guilty of intentional commission some illegal acts with increased public danger, if they are caused by “falsely understood interests of the service,” which, I think, cannot be assessed other than as a gap in criminal law regulation. This state of affairs leads, in his opinion, to inconsistency and contradictory law enforcement activities. At the same time, there are often cases when judges, faced with such gaps, issue acquittals. This position of the author of the article is confirmed by judicial practice.

For example, bodies preliminary investigation A. and M. were accused of holding the positions of district inspectors of village police departments, while performing their official duties, acting by prior conspiracy among themselves, contrary to the interests of the service, out of other personal interest, expressed in increasing the detection of crimes in the entrusted area work, having received from the head rural settlement a report of thefts of other people's property from village residents, in violation of Art. 144 of the Code of Criminal Procedure of the Russian Federation, the Law of the Russian Federation "On the Police" did not fill out an application, did not take measures to register this message and its further verification, solving the crime, thereby hiding the crime from registration and recording, which resulted in a significant violation of the rights of citizens S. and L. The indicated actions of A. and M. were qualified by the investigative authorities under Part 1 of Art. 285 of the Criminal Code of the Russian Federation.

However, by the court of first instance A. and M. were acquitted of the charges. Subsequently, the verdict was left unchanged by the judicial panel for criminal cases of the Astrakhan Regional Court. Agreeing with the verdicts in the case judicial acts, the presidium of the said court noted the correctness of the conclusions of the lower courts that the actions of the defendants were not motivated by selfish or other personal interests, did not entail a significant violation of the rights and legally protected interests of citizens, and did not undermine the authority of law enforcement agencies. It appears that these court decisions are questionable.

In the certificate on the results of generalizing the practice of consideration by the courts of the Altai Territory of criminal cases of corruption-related crimes for 2010-2011. a valid point of view on another issue is expressed. Judges' opinions on the question of whether Art. 252 of the Code of Criminal Procedure of the Russian Federation, changes in the course of judicial trial qualification of abuse of office for exceeding official powers, if, for example, if all objective signs of both crimes are proven by the court, it is established that the official committed the act not out of selfish or other personal interest, but for other reasons, for example, guided by falsely understood interests of the service, divided. The certificate further notes that, according to the explanations set out in paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of abuse of power and abuse of official powers” ​​dated October 16, 2009 No. 19, excess of power is defined differently, sees in what was done objective signs It is precisely the elements of abuse of office that acquit the defendant due to failure to establish what is necessary for qualification under Art. 285 of the Criminal Code of the Russian Federation motive of selfish or other personal interest.

At the same time, as indicated in the certificate, the lower courts do not consider it possible to apply either Art. 237, nor Art. 252 of the Code of Criminal Procedure of the Russian Federation, believing that the change in charges from Art. 286 at station 285 of the Criminal Code of the Russian Federation is impossible due to the fact that the new charge differs significantly in factual circumstances from the charge for which the case was accepted for trial, and therefore changing the charge worsens the situation of the defendant and violates his right to defense. At the same time, any abuse of official power in the form of an action should be considered as a special case of abuse of official power, since one of the forms of excess is the commission of actions that could be committed by the official himself only in the presence of special circumstances specified in the law or by-law, - specialized in Art. 285 of the Criminal Code of the Russian Federation by highlighting such a sign of the subjective side of abuse of office as a motive in the form of selfish or other personal interest. This means that if an official performs actions within the scope of his official powers illegal actions, guided by falsely understood interests of the service, in the absence of selfish motive and personal interest, then these actions entail the onset of socially dangerous consequences specified in Art. 285, and in Art. 286 of the Criminal Code of the Russian Federation. The authors of the certificate, not without reason, claim that the crime can be reclassified from one offense to another, depending on the presence or absence of a motive of selfish or other personal interest. The certificate also voiced the judges’ proposal to combine Art. 285 and Art. 286 of the Criminal Code of the Russian Federation into one crime.

As we see, even with the most advanced form of criminal prosecution, it is unlikely that it will be possible to achieve an acceptable level of uniformity of judicial practice in this category of criminal cases, since the reasons for its instability relate mainly not to the area of ​​collecting evidence and formulating charges, but to the area of ​​​​application of the rule of law to the circumstances, recognized by the court established, to discrepancies in understanding the actual content of the criminal law prohibition. In this sense, the large number of acquittals is a natural result of the objective judicial consideration of criminal cases by judges who share the arguments of the prevailing position in the theory of criminal law on the need for a restrictive interpretation of “other personal interest” as a constructive motive for malfeasance.

The current situation, as scientists and practitioners emphasize, requires a revision of the legal position of the highest court and clarification on this issue at the level of the Plenum of the Supreme Court of the Russian Federation. It is also advisable to change the criminal law, which should be aimed at filling the gap in criminal legal regulation that inevitably arises with a properly restrictive interpretation of the motive of “other personal interest” in the elements of official crimes. It should also be noted that the Supreme Court of the Russian Federation, in its decisions, has repeatedly drawn the attention of lower courts to the need to carefully clarify questions about the presence of malfeasance in the actions (inactions) of the defendants, including those committed out of personal interest.

The judge of the Supreme Court of the Russian Federation initiated supervisory proceedings on the complaint of M., convicted of committing a crime under Part 1 of Art. 285 of the Criminal Code of the Russian Federation, on the revision of Volodarsky’s sentence district court Astrakhan region on February 28, 2008, M. was found guilty of having, as an official, abused his official powers based on selfish and other personal interests, which resulted in a significant violation of the rights and legitimate interests citizens, organizations and legally protected interests of society and the state. IN supervisory complaint the convict, challenging the validity of the conviction, argued that his actions did not constitute a crime, since he, having spent what he received for citizen T. wages for the repair of the facade and painting of the fence of the administrative building of the CCSON, repair of the recreation room and painting of the fence of department No. 15 of the boarding school for the elderly, did not have any selfish or other personal interest.

The Supreme Court of the Russian Federation indicated that the case did not establish evidence that M., as an official, acted out of selfish or other personal interest. Convicting M. for abuse of official position, the court in the verdict, in particular, indicated that M., using his official position as director of the GOUSON KTsSON Volodarsky district, contrary to the interests of the service, fraudulently made contract of employment and hired T. as a legal adviser, who actually did not work, and for eight months received accrued wages for her, signing on her behalf in payroll statements, using the received cash for the purchase of building materials and repairs administrative buildings out of a desire to be in better standing with the Ministry of Social Development and Labor, caring about his career growth, thereby causing damage in the amount of 35,052 rubles to the specified ministry of the Astrakhan region by illegally paying wages on fictitious documents.

IN court hearing M. did not deny that he received the accrued wages for T., whose fictitious order to enroll her in the position of legal adviser, but who did not actually work at the center, however, he explained that he had no mercenary or other personal interest in this. had, since the money received in in full were used by him to purchase construction materials and repair the buildings of the center and nursing home in order to create good conditions for work and residence of the elderly. As stated by the Supreme Court of the Russian Federation, any data refuting the statements of the convicted person and his lack of selfish or other personal interest were not given in the verdict and are not available in the case materials. At the same time, it has not been confirmed that he used the wages he received for T. in full to purchase construction materials and repair administrative buildings, i.e. for production needs.

In another case regarding T. the Supreme Court of the Russian Federation rejected the deputy’s protest Prosecutor General of the Russian Federation to cancel the decisions taken in the case and send the case for a new trial. Organs preliminary investigation T. was accused of the fact that he, while working as the head of the investigative department of the Office of the Federal Tax Service of Russia for Kurgan region and, being an official performing the functions of a government representative, committed official forgery. Throughout the year, in order to artificially improve the performance indicators of the FSNP management, create the appearance of prosperity in the fight against tax offenses and, in connection with this, receive material rewards for achievements in the service in the form of bonuses and other incentives, he systematically entered deliberately false information into official documents - final state statistical reporting. Certifying this information with his personal signature, he submitted it in the prescribed manner to the prosecutor's office of the city of Kurgan and the Kurgan region.

Acquitting T. of the charge due to the lack of corpus delicti in the act, the court indicated that the intent to enter deliberately false information into the reports, as well as the motive for T.’s actions out of “selfish and other personal interest,” was not confirmed at the court hearing. The cassation court upheld the verdict, indicating that T.’s assertion about a bona fide mistake in compiling statistical reports on the work of the inquiry team had not been refuted. The Judicial Collegium of the Supreme Court of the Russian Federation, rejecting a number of other arguments in the protest, also noted that T.’s overstatement of data on the work of the investigation department was insignificant. From the audit report it follows that in the investigative department the overestimation of the number of cases in the Kurgan region for the period from January to September amounted to six units. At the same time, it should be noted that these six units transferred from August, a report for which T. was not compiled. For the first half of the reporting year, the overstatement amounted to only three units. Neither in indictment, neither in the court hearing nor in the protest were any data or arguments given about T.’s personal interest in inflating the performance indicators of the inquiry group, to whose activities the acquitted had nothing to do.

According to the verdict of the Sosnovoborsky City Court Leningrad region dated March 14, 2011 K. was convicted, in particular, under Part 1 of Art. 285 of the Criminal Code of the Russian Federation. As established by the verdict, he was found guilty of the fact that, as an official, he used his official powers contrary to the interests of the service, out of selfish interest, which entailed a significant violation of the rights and legitimate interests of citizen G., as well as a significant violation of the legally protected interests of society and the state . In the supervisory appeal, the lawyer of the convicted person indicated that the court’s conclusions about the presence in K.’s actions of a crime under Part 1 of Art. 285 of the Criminal Code of the Russian Federation in relation to G. contain significant contradictions that influenced the correct application of the criminal law, since he did not have a selfish motive, did not receive illegal remuneration from G., and in the exercise of his official powers drew up protocols in relation to him on bringing him to administrative responsibility and removal from management vehicle. In addition, the lawyer draws attention to the fact that established by the court motives of revenge and personal interest were not incriminated against K. either by the preliminary investigation authorities or by the court.

Initiating supervisory proceedings, the judge of the Supreme Court of the Russian Federation stated the following in his ruling. The court of first instance established that, having received from G. a refusal to transfer 50 thousand rubles. for not bringing him to administrative responsibility, K. drew up documents against G. to bring him to such responsibility. At the same time, as the court noted, K. acted out of other personal interests, in order to increase the number of administrative materials compiled and create the appearance proper execution official duties to identify and legally suppress offenses and extract material rewards from their actions, as well as to take revenge on G. for refusing to transfer money for failure to draw up protocols. In coming to this conclusion, the court did not take into account that drawing up protocols on an administrative offense was part of job responsibilities K., and he was obliged to draw them up in case of discovery administrative offense. In addition, the preliminary investigation authorities did not charge K. with committing a crime under Part 1 of Art. 285 of the Criminal Code of the Russian Federation, out of other personal interest. The conclusion of the cassation instance that K. committed a crime under Part 1 of Art. 285 of the Criminal Code of the Russian Federation out of selfish interest, since his “actions were dictated by the lack of remuneration from the city expected by the guilty,” and indicating a motive for other personal interest did not change the charge brought and did not affect the legality and validity of the sentence, is erroneous.

Judicial practice of military courts on crimes provided for in Art. 285, 292 of the Criminal Code of the Russian Federation, committed on the basis of other personal interest, in general does not differ from the practice of the courts general jurisdiction. As the analysis of criminal cases shows, the evidence relating to the driving motives for military personnel to commit these official crimes was generally examined by military courts fully and comprehensively and, as a rule, came to the correct conclusions about the presence or absence in their actions of the sign of “other personal interest” provided for by these articles of the Criminal Code of the Russian Federation.

The Severodvinsk Garrison Court convicted officer T. of a combination of crimes (three) provided for in Part 1 of Art. 285 of the Criminal Code of the Russian Federation. He was found guilty of using his official position contrary to the interests of the service out of other personal interests, resulting in a significant violation of the rights and legitimate interests of the state. According to the verdict, during the period of military service as commander of a military unit, T., being an official and using his powers to manage and order state property, contrary to the interests of the service, in order to increase personal authority and create the appearance of well-being, three times appealed to a commercial organization with a request to provide sponsorship in the form of free allocation of diesel fuel to the military unit. After receiving fuel for a total amount of 441,000 rubles. according to the invoices signed by him in his own hand, without registering it and accepting it into the warehouse, T. concealed the fact that fuel had arrived at the unit, and subsequently organized its removal from commercial organization and sold it, and spent the money received at his own discretion.

In a supervisory appeal addressed to the Military Collegium of the Supreme Court of the Russian Federation, the lawyer of the convicted person asked to cancel court rulings and send the case for a new trial, since, in his opinion, the motive for committing the crime has not been established, and the proceeds from the sale of fuel were sent to T. to encourage personnel, organize festive and other events.

In its decision dated June 8, 2012, the Military Collegium reasonably indicated that the conclusion of the trial court that T. had committed these crimes is beyond doubt and is confirmed by the evidence examined in court and presented in the verdict. Being an official, he had a real opportunity to organize the acceptance and use of material assets, including fuel received from third-party organizations and individuals in the form of free assistance, patronage and sponsorship. As can be seen from the case materials, T. three times concealed the receipt of fuel from a third-party organization and deliberately did not register it with the military unit, contrary to the provisions of regulatory legal acts. At the same time, it is fundamentally important that the Military Collegium agreed with the conclusion of the garrison military court that in order to recognize the actions of T., for which he was convicted, as criminally punishable, it does not matter for what purpose the money from the money was ultimately spent sale of the received goods, contrary to the statement in the supervisory complaint of the convict’s defense attorney that the money was not personally appropriated by the convicts, was not transferred to third parties and was spent on the needs of the unit, and therefore T. allegedly should not bear criminal liability for what he did.

Colonel medical service K. The Ufa Garrison Military Court was found guilty of using his official powers contrary to the interests of the service, committed out of other personal interests, and also entailing a significant violation of the rights and legitimate interests of the organization and legally protected interests of society and the state and was convicted under Part 1 of Art. 285 of the Criminal Code of the Russian Federation. According to the verdict, K., having entered into a cooperation agreement with the Chapaevsky state farm as a unit commander, agreed to receive four cows as payment for the services provided to the state farm, however, realizing that the unit did not have conditions for keeping cattle, he agreed with his subordinate ensign Mr. .about what he will provide farming his father for keeping livestock. Subsequently, K. instructed his subordinates to receive livestock from the state farm and take it to the city’s farm, and subsequently hid the livestock from mandatory documentary recording and thus disposed of it as his own, which entailed a significant violation of the rights and legitimate interests of the unit and caused material damage in in the amount of RUB 24,090.

The Judicial Collegium for Criminal Cases of the Volga District Military Court overturned the verdict and terminated the criminal case against K. due to the lack of corpus delicti in his actions. Based on the materials of the case, the board came to the conclusion that, by transferring livestock to the farmer, K. acted not in his own interests, but in the interests of the part. At the same time, he entered into an agreement with G., according to which the farmer purchased at his own expense and transferred to the unit the building materials it needed, which were used for the repair and construction of various facilities of the unit. As a result of the execution by the parties to the contract, the cost of the G. transferred to the part building materials exceeded the cost of the livestock transferred to him in part, as well as the cost of operating vehicles when transporting materials. Under such circumstances, the judicial panel came to the conclusion that as a result of the actions of the convicted material damage part was not caused and there was no significant violation of the rights and legitimate interests of her, society and the state, and therefore did not recognize the actions of K., who violated a number of orders of the Minister of Defense of the Russian Federation, as a criminal offense.

Leaving this decision without comment, I believe it is necessary to pay attention to the following fact. Some legal scholars consider the definition of “other personal interest” given in the explanation of the Plenum of the Supreme Court of the Russian Federation to be complete and not in need of clarification, which cannot be agreed with, since theoretical research and judicial practice on this problem are in continuous development, and therefore in the future one should hope for new clarifications of the highest judicial authority countries on this issue and making appropriate adjustments to the current legislation. In addition, it should be recalled that in the criminal codes of some countries, mercenary and other personal interests are not a mandatory sign of the main elements of abuse of power (criminal codes of the Republic of Belarus, the Kyrgyz Republic, the Republic of Uzbekistan).