The provocation of a bribe or commercial bribery is not so common in practice. Meanwhile, the discussion of various issues regarding liability for this crime is of particular importance. Often legal measures taken by law enforcement officials are regarded as provocation of a bribe. Errors in operational activities , in turn, prevent the identification of real attackers, making it difficult to fight corruption in general.
Relevance of the issue
Responsibility for the above crime is provided for by Art. 304 of the Criminal Code . Normally, certain signs characterizing the composition are given. Under the article, an attempt to bribe securities, financial means, other property or by providing a subject with a certain service for the artificial creation of confirmation of a crime or blackmail is subject to criminal punishment. Many experts note the failure to formulate the signs of a crime. In particular, the use of the “attempt to give” turnover significantly complicates the determination of the specific content of the ban. It seems that it was in this connection that the Armed Forces in its explanations limited the scope of the norm. The court pointed out certain circumstances, the identification of which creates obstacles to imputation of liability under Art. 304 of the Criminal Code .
Aircraft Explanations
They are given in the Decree of 02.10.2000. The document explains at what point the provocation of a bribe as a crime will be considered completed. It coincides with the direct implementation of measures aimed at the adoption by the subject of the benefits offered to him. Meanwhile, the term “attempt”, mentioned in the article, can be regarded in practice as a behavioral act not completed due to circumstances that are completely independent of the transmitting person. Therefore, according to some experts, the Armed Forces had to emphasize another meaning of this concept. In particular, actions that should be qualified as a provocation of a bribe are aimed at creating a false impression of acceptance by the subject of the benefits offered. Zhalinsky believes that the crime involves such behavioral acts of the guilty, which consist in falsification of supporting facts. It consists in a fixed transfer of the subject and imitation of the consent of the addressee.
Circumstances
Limitations of the norm by establishing facts that exclude liability under Art. 304 are defined in the above judgment as follows. When deciding on the existence of a corpus delicti, the court must carefully check whether there was a preliminary agreement with the employee to agree to accept the subject. If she was absent, and the official, in turn, refused, the person who is trying to give a bribe to blackmail or artificially create evidence of a crime should be punished accordingly.
Ways
The promotion of bribes and involves not only the direct provision of any benefits to the subject. Values may appear in an officer under a variety of circumstances. Moreover, it is far from always that a bribe with money or other benefits will fall from hand to hand. For example, values can be placed in the office in a desk drawer in the absence of an employee, in a bank account opened in his name. As for the direct transfer of benefits, in order for an employee to fall for a bribe , he may be misled. In this case, the official will consider that he accepted a gift of little value or, for example, a return of a debt. In any situation, however, the employee does not express his consent to the acceptance of benefits. It is worth saying that most experts come to such conclusions.
The artificiality of creating corroborating facts
The lack of consent to receive a bribe on an especially large scale , for example, completely excludes the possibility of achieving the goal set by the attacker. It consists in creating artificial evidence of acceptance of benefits by an official. It should be recalled that receiving a bribe on an especially large scale is the acceptance of values, the cost of which is more than 1 million rubles. What is the artificiality of supporting facts if the benefits were actually transferred to the subject?
According to Yegorova, in the conditions when the person has accepted the values, there is evidence of a crime defined by Art. 290 of the Criminal Code. When an attacker seeks to artificially create evidence, it is logical that he should not transmit values. After all, his plan is to defame a law-abiding person or, in any case, not committing extortion of a bribe and not expressing consent to accepting benefits. If the subject offers any values, counting on the fact that the other side will not refuse them, then he obviously cannot pursue the goal of creating artificial evidence of the crime. This is due to the fact that the behavioral acts of the receiving person fall under article 290.
Falsification of facts
Consider an example. Suppose a subject ponders how to bribe a teacher . At the same time, the potential victim of the crime is an honest and law-abiding citizen. Accordingly, he will not agree to accept any benefits. However, the subject still offers him values. Why does he need this? For example, before giving a bribe to a teacher , an attacker turns on a hidden voice recorder. Subsequently, he falsifies the record. As a result, the citizen allegedly agrees to accept the values or extorts a bribe. Everything will depend on the imagination of the attacker. If, in such a situation, the potential victim unexpectedly agrees, the realization of the objective side of the crime becomes impossible. Even if subsequently the values are thrown to a person secretly, the provocation of a bribe will be considered invalid. When transferring an item to a citizen who agreed to take it, the measures taken by the subject will be aimed at detecting corruption.
Criminal assessment
In the above example, the provocation of a bribe was not brought to an end due to circumstances that are independent of the subject. The person assumed that he would be able to legally defame a law-abiding citizen by falsifying the supporting facts. However, the latter unexpectedly accepted the proposed bribe. The Criminal Code of the Russian Federation contains Art. 30, in the second part of which there is a provision according to which measures taken by the first person can be considered as preparation for a crime of moderate gravity.
However, along with this there is a possibility that the behavioral acts of this subject are an attempt. The qualification of actions in this case will depend on a direct understanding of the normative text. With a strict interpretation provided for in Art. 304 prohibition, we can draw the following conclusion. The grammar turnover used by the legislator suggests the existence of very specific goals for the attacker. It should be understood that any attempt to give a bribe can be both successful and unsuccessful. Meanwhile, the direct achievement of the goal is not included in the composition. Accordingly, if the sign is the desire to defame someone, then the crime will be considered completed until the bribe is actually transferred. The Criminal Code of the Russian Federation, therefore, narrows the range of objective circumstances in which measures taken by a person can be considered illegal.
Blackmail
Considering his goals, the meaning of the prohibition present in Art. 304, is seen in preventing the formation of conditions for exposure to an honest person. It can be expressed in various requirements for a potential victim. In this case, you need to pay attention to the fact that the law in this case protects the rights of an honest employee. There is no sense in ensuring the safety of corrupt officials, since a corrupt official can be bribed. Accordingly, the actions of the blackmailer will qualify as a provocation if there is no consent of the victim to accept the values. If the attacker, transmitting the benefits, requires the subject to implement certain behavioral acts, then there will be a different legal assessment. In this case, a bribe takes place.
Preparation for false denunciation
In this form, the provocation of a bribe is considered by Egorova. She indicates that if intent is established to commit a false denunciation, but the measures provided for in Art. 306, were not taken due to circumstances beyond the control of the attacker, he is prosecuted for a combination of crimes. In particular, Articles 30, 304 and 306 apply. In this case, we are talking about preparation for a crime under part 3 of Article 30.
At the same time, the solution of the issue of imputing a set of articles is fraught with a number of difficulties. Egorova believes that if a provocation acts as a preparatory stage aimed at creating conditions for knowingly false denunciations, then responsibility should only come under article 306 (part 3). If all these measures have been taken, then the formation of artificial confirming facts in the adoption of values by a person should be considered as a sign of the objective side of the crime according to the specified norm. Here it is worth delving into the text of the article. The 306 norm establishes liability for false denunciation combined with the artificial creation of indictment. Accordingly, if a citizen was about to commit a crime with the qualifying attribute specified in part 3, but only part of it was completed for independent reasons, his behavior constitutes an attempt on an act for which responsibility arises under Art. 306.
How to prove the provocation of a bribe?
In practice, as a rule, this can be quite problematic. This is due to the fact that this crime involves good preparation. The sources of innocence, as a rule, are witness testimonies, video recordings, etc. In a situation where a citizen is charged with a crime that he did not commit, but there is evidence against him, it is best to contact a competent lawyer. The allegations can only be refuted on the basis of legislative norms. Consider a case from judicial practice.
Citizen A. was found guilty under articles 290 (part 3), 292 (part 2) and 30 (part 3). The court found that the subject, working as a doctor in a district hospital, acted through an intermediary B. and received bribes for compiling fictitious disability certificates. During the last episode, detention was carried out by operational officers. The appellate court quashed the verdict against citizen A. and fully acquitted him because of the absence of corpus delicti. Motivating the decision, the court proceeded from the following circumstances. The sentence of the first instance, among other things, was based on the results of operational-search measures. They were performed with the participation of 3 persons. They, with the help of an intermediary, handed over to the citizen A. remuneration for issuing fictitious disability certificates. The Board of Appeal indicated that the first instance did not appropriately evaluate the actions of the operative group employees in terms of their compliance with the goals and objectives of the ARD and the existence of grounds for carrying out operational investigative measures.
Having recognized them as admissible evidence of guilt, the court relied on the testimony of the officer. He testified to the availability of information indicating the unlawful processing of sick leave certificates. However, in the case file there was no evidence objectively confirming the information and indicating the preparation or commission of a crime. The Board of Appeal considered the evidence of the operative representative that the information was not sufficient to make a decision on conducting an ORM. In addition, the citizens V., G. and D., who participated in the operational-search action, did not report any information to the law enforcement authorities regarding convicted A.
For example, they did not receive information that the latter demanded compensation from them, or that they were aware of the illegal activities of the accused person from other sources. Moreover, these citizens themselves were not going to apply to the hospital to receive fake disability certificates. From this, the appellate board concluded that law enforcement officers themselves acted as initiators of the operational-search measures. At the same time, the court indicated that the initial conversation between the intermediary and the agents was not recorded (recorded), although it was precisely this that was crucial for identifying legally significant circumstances.
In particular, on the basis of this conversation, it would be possible to establish who was the initiator of the meeting and the transfer of remuneration to the convicted person, whether any pressure or stimulation was applied to this person. Under the circumstances, there was no evidence in the case file corroborating that Mr A. would have committed a crime without the intervention of law enforcement officials, without artificially creating appropriate conditions. Based on this, the Board of Appeal concluded that the behavior of the employees was aimed at persuading the convicted person to accept unlawful remuneration, that is, it was a provocation of a bribe. Accordingly, the measures taken by employees were contrary to Section 5 of the Law governing the implementation of ORM. The results of operational investigative measures could not serve as the basis for the sentence of the first instance. Taking into account the inadmissibility of other facts that were present in the materials, the Board of Appeal recognized the guilt of citizen A. as unconfirmed and made an acquittal decision.
Conclusion
As part of a scientific study, previous criminal activity, identified promptly as preparatory activity, according to some authors, should be identified by reference to extreme necessity. For example, Egorova believes that in the case of an incentive for an official to accept unlawful remuneration, the person who prepares for the illegal behavioral act and commits it will be directly a law enforcement official. Moreover, the author indicates that such measures can be taken by the latter only if absolutely necessary. Egorova believes that an operational experiment is allowed to be carried out solely to identify the criminal intentions of citizens who are reasonably suspected of belonging to a criminal group in order to detect potential objects of abuse. Volzhenkin objects to this approach. He points out that if one interprets the urgent need so broadly, then there are limitless possibilities for arbitrariness and abuse, the use of provocations and other unlawful methods to suppress such crimes.