Anti-Corruption: Episode 11 | Why do investigators and lawyers need "significant violations..."
We continue to demonstrate, in separate fragments, some practical tips from the upcoming online course "Defense and Prosecution in Cases of Corruption and Official Crimes."
What are the intricacies of classifying corruption crimes with material elements?
There are many!
But one of them is the surprising vagueness, or rather the evaluative nature, of such a common criminal consequence as "material violation...".
And this is a mandatory feature of a whole series of offenses. For a complete picture, let's examine the provisions of Part 1 of Article 285 of the Pension Fund Criminal Code:
Article 285. Abuse of Official Authority
1. The use by an official of his or her official authority contrary to the interests of the service, if this act is committed out of selfish or other personal interest and has resulted in a material violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state.
What kind of beast is this: "a significant violation of the rights and legitimate interests of citizens or organizations, or the legally protected interests of society or the state"?
Of course, even the most experienced lawyers can't figure it out right away. To understand and apply it, let's look at this crime schematically.
For this purpose, we'll cite a diagram from a textbook by our esteemed colleagues:
Nikonov P.V., Shikhanov V.N. Theory and Practice of Classifying Official Crimes (Chapter 30 of the Criminal Code of the Russian Federation): A Textbook. 2nd edition, revised and expanded. – St. Petersburg: Legal Center Press, 2020. – 672 pages.
But for a more professional understanding, let's read a couple of paragraphs from two guiding resolutions:
Section 18 of Plenum No. 19 (see link: https://clck.ru/iGJdv)
Section 19 of Plenum No. 55 (see link: https://clck.ru/rckBg)
If things are still complicated, if the investigator and/or defense attorney are still racking their brains over how to use all these abstract, evaluative categories for their adversarial tasks... then we'll try to explain.
Investigator, when imputing Articles 285, 286 of the Criminal Code of the Russian Federation, and many similar offenses, refer to the text of Plenum No. 19. Sometimes you have to rewrite it word for word! Quote directly and, like a novelist, reveal the elements set out there, and also substantiate the causal connection!
"Lawyer, if you see an accusation or a verdict where the author hasn't bothered to detail all of the above, then cite Plenum No. 55 and dismiss the case on that count! Or compromise if your client supports it. That's another story..."
Contacts for individual consultations
Professor Yuri Petrovich Garmaev
Telegram channel: https://t.me/garmaevopen
VKontakte: https://vk.com/yury.garmaev
Email: [email protected]
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Filming, cover art – Victoria Patlasova
Editing – Daniil Verkhushin