Who is considered criminally liable?
The essence and danger of this crime lies in the fact that persons authorized by law to carry out such a serious act as criminal prosecution carry it out using their official powers in relation to a person who has not committed a crime. In this case, human and civil rights guaranteed by the Constitution of the Russian Federation are violated, and damage is caused to the interests of justice and its prestige. These actions are fraught with grave consequences: the victim suffers moral and material harm, those close to him and other people lose faith in the fairness of justice.
Object This crime is a normal activity of the bodies of inquiry, investigation and the prosecutor's office.
Additional object The interests of the victim always come forward (freedom, honor, dignity, health, property interests).
Objective side consists of bringing a known innocent person to criminal liability.
The only basis for criminal liability from the standpoint of criminal law is the presence of a specific crime in the person’s act. In accordance with criminal procedural legislation, no one can be held criminally liable except on the grounds and in the manner established by law. A person can be brought to justice if sufficient evidence is collected to bring charges of committing a specific crime (Article 171 of the Code of Criminal Procedure of the Russian Federation). Evidence will be sufficient only when an employee of the justice body, vested with the right to bring to justice, has materials that convince him that it was this person who committed the crime. This belief must be based on concrete facts, and not on assumptions or intuition. If there is no such evidence, the person cannot be held accountable. Circumstances excluding criminal proceedings and the grounds for termination of a criminal case are directly indicated in the criminal procedure law (the event of a crime has not been established, there is no corpus delicti in the person’s act, etc. (6 paragraphs of Article 24 of the Code of Criminal Procedure of the Russian Federation).
The act of being brought as an accused is expressed in issuing a reasoned decision on this and presenting it to the person brought as an accused. This decision can only be made if there is two reasons:
- criminal law- commission by the subject of an act containing elements of a crime;
- criminal procedure- proof of its commission by a specific person.
Thus, the objective side of the crime in question is expressed in the fact that an official, abusing his official powers, brings a person to criminal responsibility for a crime that he did not commit.
The ways in which the perpetrators use their official powers do not affect the qualification of the crime committed. For example, a person is held criminally liable for an act not containing signs of a crime, or when there is obvious non-involvement him to this crime.
The objective side of the crime under Art. 299 of the Criminal Code, occurs not only if the person at all did not commit a crime, but even when they done differently crime, and not the one for which it is prosecuted. If charges are brought regarding several crimes, some of which the subject knowingly did not commit, also it is necessary to state the presence corpus delicti under Art. 299 of the Criminal Code, since in this situation the interests of justice are violated - the true perpetrators escape responsibility.
Does not form the objective side of this composition is the illegal prosecution of a person who has committed a crime, but for various reasons is not subject to liability (for example, due to the expiration of the statute of limitations, as a result of the issuance of an amnesty act, mental illness of a person who has committed a socially dangerous act, etc. .). If the necessary signs are present, such an act can be qualified as a general offense under Article 285 of the Criminal Code of the Russian Federation. Does not apply under the signs of this article and incorrect qualification of a person’s actions (for example, instead of causing death by negligence, the perpetrator was charged with murder).
The crime under Part 1 of Art. 299 of the Criminal Code, has formal compound. It should be considered completed from the moment a justice official makes a decision to bring him or her as an accused. According to the law, from this moment the person becomes an accused; legal restrictions and the use of coercive measures are permissible in relation to him; his legal status changes significantly.
However, regarding the moment of the end of this crime in the theory of criminal law, a different position was expressed: it ended from the moment the decision to bring the person as an accused was presented, since in the period between the decision and the filing of charges (within 3 days, in accordance with Article 172 Code of Criminal Procedure of the Russian Federation) on the part of employees law enforcement agencies Voluntary refusal is still possible.
The act provided for in Art. 299 of the Criminal Code may involve a violation of a number of other constitutional rights of the victim. Bringing a known innocent person to criminal liability, as a rule, is preceded by actions related to violation of privacy, home, confidentiality of telephone conversations, postal, telegraph or other messages, illegal detention, detention or detention, etc. They are not covered by the crime under Art. 299 of the Criminal Code, and require independent qualification.
Subjective side crimes are characterized only direct intent. This is evidenced by the law's indication of criminal liability. obviously innocent. The guilty person is aware that, using his official powers, he is bringing to criminal responsibility a person who is obviously innocent of committing a crime, and wants to bring him to justice. Observance in this case it means that the perpetrator was certainly aware (obvious) of the illegality of his actions.
The sign of knowledge makes it possible to distinguish a criminal act from cases of bringing to justice due to the lack of competence of the person attracting, if he is convinced of the guilt of the person, although sufficient evidence has not been obtained, etc. Such actions constitute either a disciplinary offense or negligence.
Motives of this crime can be very diverse (revenge, the desire to help loved ones evade responsibility, careerism, falsely understood interests of the service, etc.). They do not affect qualifications, but can be taken into account by the court when choosing a punishment. If this crime was committed for reward, then the act must be additionally qualified under Part 2 of Art. 290 of the Criminal Code (bribery-extortion). The actions of a person who, by bribing the subject to commit this crime, must be qualified under Part 1 of Art. 291 and Art. 33, art. 299 of the Criminal Code of the Russian Federation.
Subject crimes are officials who, by law, have the right to be charged as accused: persons conducting inquiries, investigators, prosecutors. The departmental affiliation of the investigator or person conducting the inquiry (internal affairs bodies, security service, prosecutor's office, etc.) does not affect qualifications.
It must be borne in mind that responsibility under this article is not borne by the head of the inquiry body or the head of the investigative department, but by the person who directly carries out the inquiry and makes a deliberately illegal decision to bring to criminal liability, as well as the investigator.
Part 2 Art. 299 Criminal Code contains one qualifying feature - bringing an innocent person to criminal liability, combined with accusing him of committing a serious crime (Part 4 of Article 15 of the Criminal Code) or an especially serious crime (Part 5 of Article 15 of the Criminal Code).
Illegal release from criminal charges
liability (Article 300 of the Criminal Code)
This norm is a novelty in Russian criminal legislation. Such actions were previously qualified as abuse of official position. The danger of such acts is obvious - they create a feeling of impunity, hinder the fight against crime, etc.
Object Crimes are a normal activity of the bodies of inquiry, investigation and the prosecutor's office.
Optional the object may be the interests of the victim (for example, the impossibility of compensation for damage).
Objective side This crime is expressed in the illegal release by a judicial officer vested with appropriate powers of a person suspected or accused of committing a crime from criminal liability.
The Criminal Code of the Russian Federation talks about the release of the accused or suspect.
Suspects (Article 46 of the Code of Criminal Procedure of the Russian Federation) recognized as a person against whom a criminal case has been initiated, or who has been detained on suspicion of committing a crime, or a person against whom a preventive measure has been applied before charges are filed.
Accused (Article 47 of the Code of Criminal Procedure of the Russian Federation)- a person against whom, in accordance with the procedure established by law, a decision has been made to charge him as an accused or an indictment has been issued.
Illegality of the release of these persons from criminal liability means that there are no grounds and conditions for such release. The grounds are indicated in the norms of the General (in connection with active repentance - Article 75 of the Criminal Code; in connection with reconciliation with the victim - Article 76 of the Criminal Code; in connection with the expiration of the statute of limitations - Article 78 of the Criminal Code) and the incentive norms of the Special Part (in the notes to Art. 126, 204, 205,206, 208, 222, 223, 228, 275, 291, 307, 337, 338) of the Criminal Code of the Russian Federation.
The articles of the Code of Criminal Procedure list circumstances that exclude criminal proceedings. Termination of a criminal case on other grounds or under other circumstances not provided for in Art. 24-28 Code of Criminal Procedure of the Russian Federation, will illegal.
Exemption from criminal liability should also be recognized as illegal when, subject to the conditions and grounds provided for by the Criminal Code, a decision on this is made in violation of the procedural form established by the criminal procedure law (for example, the investigator’s decision to terminate the case is not authorized by the prosecutor).
When committing this crime, the official abuses his official powers. He ignores these requirements and illegally releases the person from criminal liability, terminating the criminal case.
Some authors indicate that the actions of an official contain elements of a crime under Art. 300 of the Criminal Code, if it unlawfully releases a person from criminal liability by refusing to initiate a criminal case. However, we cannot agree with this, since the law provides for liability for the illegal release from criminal liability of the accused or suspect, who are such when a criminal case is initiated.
Forms of abuse by an official of his official powers can be very different: distortion of the actual circumstances of the incident, deliberately incorrect determination of the form of guilt, excluding criminal liability, etc.
If this was preceded by other abuses (for example, falsification of evidence, coercion to testify, illegal detention, etc.), then it should be recognized that there is a real set of crimes, each of which is subject to independent qualification.
Thus, according to the law, the commission of this act is possible only at the stage of preliminary investigation.
This crime has formal composition. It ends from the moment a reasoned resolution is issued and signed to terminate the criminal case and release the person from criminal liability.
Subjective side crime can only be expressed in direct intent. The perpetrator realizes that, using justice and official powers, he illegally, in the absence of grounds for this, releases the person who committed a specific crime from criminal liability if there is sufficient evidence of his guilt, and wishes to release the perpetrator from liability.
Motives and goals Such actions can be very diverse: the desire to help others, the request of friends, pity, selfish motives, etc. But if at the same time remuneration was illegally received from interested parties, then the act must be qualified in conjunction with the receipt of a bribe (Article 290 of the Criminal Code).
Subject of a given crime can only be a prosecutor, an investigator or a person conducting an inquiry who is in charge of the criminal case. If the decision on exemption from criminal liability was made by the head of the investigative department while performing his professional functions as an investigator, he is also subject to criminal liability under Art. 300. An illegal decision to release a person from criminal liability can also be made by a judge, but in this case he is subject to criminal liability under Art. 305 of the Criminal Code for issuing a knowingly unjust sentence, decision or other judicial act.
1. Bringing a knowingly innocent person to criminal liability by an investigator, prosecutor or other
by a person authorized by law, is punishable by restriction of freedom for a term of up to five
years or imprisonment for the same period.
The same act, coupled with an accusation of committing a grave or especially grave crime, as well as coupled with the artificial creation of evidence
accusations or other falsification, is punishable by imprisonment for a term of five to
ten years.
1. The object of the crime is normal activity
preliminary investigation authorities or prosecutor's office. An additional object is the personal rights and interests of a citizen, his personal integrity.
2. The objective side is expressed in bringing an innocent person to criminal responsibility. The corpus delicti will occur in the following cases: a) the absence of an event
crime for which a person is prosecuted
responsibility; b) the absence of corpus delicti in the actions of the person who is being held criminally liable; c) failure to prove the person’s participation in the commission
crimes; d) the person commits a less serious crime than the one for which he is being held criminally liable; e) bringing a person to justice for a crime that he did not commit, along with prosecution for another that he committed;
f) establishing the fact of a person’s innocence after bringing him to criminal responsibility, without subsequent
closure of a criminal case, etc.
The crime is considered completed from the moment the decision to bring him to justice is announced to the innocent person.
as an accused for a crime that he did not commit, regardless of the further fate of the criminal case.
3. The subjective side of the crime is characterized by guilt in the form of direct intent, since the legislator
indicates the knowledge of criminal liability. A necessary condition qualifications for
this article is the presence of a selfish motive in the subject
motive (desire to receive some kind of material reward). Receiving a bribe is qualified under the totality of Art. 372 and 368.
4. The subject of the crime is the person conducting the preliminary investigation or the prosecutor supervising the investigation of the criminal case.
5. The qualifying features of this crime are: 1) accusation of committing a serious or
especially grave crime (the concept is grave and especially
serious crime - see comments to Art. 12) artificial creation of evidence of accusation - justification
accusation brought against a knowingly innocent person using specially created evidence (falsification of material evidence, documents, inducement of an expert
to a deliberately untrue conclusion, etc.).
More on the topic Article 372. Bringing a knowingly innocent person to criminal liability:
- 5. Prosecution for tax crimes
- 3.4.5. The presence of intent is a prerequisite for bringing to criminal liability for committing tax crimes.
- § 6. Consideration of cases of bringing to administrative liability 1. Jurisdiction of the arbitration court of cases of bringing to administrative liability
- ON STRENGTHENING PROSECUTORAL SUPERVISION OVER COMPLIANCE WITH THE LAW WHEN DETENTION, ARREST AND PROMOTION OF CITIZENS TO CRIMINAL LIABILITY Order of the Prosecutor General of the USSR of August 4, 1955 No. 76 (Extract)
The task of protecting the innocent from unjustified criminal prosecution should be given special importance. This is due to the fact that illegal prosecution can lead to the conviction of an innocent person, sometimes with such severe penalties as imprisonment and even the death penalty. Suffice it to recall, as examples that took place in the territory of the former USSR, the so-called “Vitebsk case” or “Rostov case” on charges against Chikotilo. In both of these cases, the consequence of illegal prosecution was the imposition of the death penalty on innocent people. Only after the execution of the punishment was it established that those executed did not commit the crimes for which they were accused and convicted.
In Kazakhstan in 2000, according to Art. 344 of the Criminal Code of the Republic of Kazakhstan, only one crime was registered. In 2001, not a single crime was registered. In 2002, two crimes were registered, in 2004, three crimes, and in 2005, no crimes were registered.
It should be noted that during the period of validity of the old Criminal Code of the Kazakh SSR of 1959, under Art. 189 (Illegal prosecution), criminal cases were also initiated extremely rarely. For example, in 1883-1885, as well as 1887, 1989, 1990, 1992 and 1993 in Kazakhstan, not a single person was convicted under this article of the Criminal Code of the Republic of Kazakhstan. In 1986 and 1991 One person at a time was convicted. In 1988, under Art. 189 of the Criminal Code of the Republic of Kazakhstan of the Kazakh SSR, two people were convicted.
The data presented indicate that the article in question is rarely used in practice, although there are many instances of this crime being committed. For example, in 2000, the prosecutor's office of the Republic of Kazakhstan dismissed 274 criminal cases that were received with an indictment. Of these, 36 were terminated on rehabilitative grounds 2 . In the same year, 201 people were acquitted by the courts of Kazakhstan. In 2001, 302 cases were dismissed, including 21 on exonerating grounds. The country's courts acquitted 197 people. In 2002, 173 people were acquitted, some of whom were brought to criminal liability illegally. In 2004, prosecutors terminated 746 criminal cases sent to court, 322 criminal cases were terminated on rehabilitative grounds 2, and 342 people were acquitted.
The danger of this crime is that sometimes a law enforcement officer, having committed it, goes further - to falsify evidence in order to protect himself from the expected punishments and at the same time protect the honor of his uniform.
Deliberate disregard for the tasks of justice, one of which is the prevention of unjustified criminal prosecution, leads to a gross violation of the principle of legality in the activities of law enforcement agencies. Such facts are especially noticeable because they are allowed by persons obliged to strictly observe the rule of law and protect law and order. The commission of the crime in question interferes with the solution of the tasks of justice, leads to a gross violation of human and civil rights, since it is accompanied, as a rule, by the illegal detention of an innocent person, his illegal detention or detention. Therefore, bringing a knowingly innocent person to criminal liability as a crime has an increased public danger.
The danger of this crime lies in the fact that when it is committed, the constitutional principles of protecting human rights, freedoms and dignity are violated, and the authority of justice and all law enforcement agencies is undermined. It follows from this that the object of this crime is the activities of the bodies of inquiry and investigation in solving and investigating criminal cases. An additional object is the interests of the individual. Therefore, the crime is two-objective.
The objective side of this crime is to bring a knowingly innocent person to criminal responsibility. The question is from what moment a person is considered attracted
criminal liability is controversial. The correct determination of the moment of the end of this crime depends on the correct solution of this issue. For example, E.A. Motovilovker believes that criminal prosecution should mean convicting a person through a guilty verdict 1 . In the criminal procedural literature there is also an opinion that a person is considered to be brought to criminal liability from the moment a decision is made to bring him to criminal responsibility.
On this issue, we support the opinion of the third group of proceduralists, who believe that criminal prosecution means presenting a person with a resolution to implicate him as an accused.
It is this position that seems correct because from the moment a sentence is passed a person is considered already convicted, when the moment of bringing him to criminal responsibility is already far behind. From the moment a decision is made to charge a person as an accused until charges are brought against him, it takes certain time. If the suspect at this moment disappears” from the investigation, then again, a lot of time may pass before charges are brought against him. During this period, he cannot be considered an accused and, accordingly, brought to criminal responsibility, since he does not know the content and scope of the charges that the criminal prosecution body is going to bring against him.
A crime, liability for the commission of which is provided for under Art. 344 of the Criminal Code of the Republic of Kazakhstan should be considered completed from the moment an innocent person is charged, because from that moment he is provided with the right to defense. He can take advantage of other rights established by law, for example, those provided for in Part 2 of Art. 217 of the Code of Criminal Procedure of the Republic of Kazakhstan the right to refuse to testify.
The following should be considered innocent: a) a person who is charged with committing an act that is not a crime (for example, after a socially dangerous act was committed, it was decriminalized); b) a person prosecuted for a crime that was not actually committed (accused of killing a person who is actually alive); c) a person who is not involved in the commission of a crime, or a person is justifiably brought to criminal responsibility for a crime he has committed and, at the same time, obviously without justification - for another crime that he did not commit; d) a person guilty of committing a less serious crime, if he is brought to criminal responsibility for committing a more serious crime; e) a person prosecuted for committing an act that does not contain all the elements of a crime. For example, a socially dangerous act was committed by an insane person or another person who has not reached the age of criminal responsibility; f) the person is brought to criminal liability if there are grounds for termination of the criminal case provided for by law (for example, in accordance with Part 2 of Article 9; Part 3 of Article 15); g) a person is subject to criminal prosecution after his act has been amnestied, if there is the consent of the perpetrator to apply the amnesty act in relation to him. Actions such as illegal initiation of a criminal case, unjustified refusal to prosecute, termination of a criminal case against a knowingly guilty person, illegal imposition of administrative or disciplinary liability are not covered by the signs of the objective side of the crime under consideration.
If it is established that a criminal case was knowingly illegally initiated with the aim of illegally bringing a person to criminal liability, then there will be preparation to commit the crime in question. In other cases, these actions may result in disciplinary liability.
In our opinion, the initiation of a criminal case against a certain person that is not sufficiently justified does not pose such a great public danger as to regard this behavior as criminal. The initiation of a criminal case does not always result in bringing a known innocent person to criminal responsibility. If a criminal case was initiated against an innocent person, and then the criminal case was dropped without bringing charges, then such behavior will not pose such a public danger as to warrant criminalization.
Illegal bringing to administrative, disciplinary or other liability, except criminal, can be qualified, when the necessary characteristics are established, as a malfeasance (Article 307 or Article 308 of the Criminal Code of the Republic of Kazakhstan). Knowingly illegal exemption from criminal liability, as well as an unfounded refusal to bring a person to criminal liability may entail liability under Art. 345 of the Criminal Code of the Republic of Kazakhstan.
Unjustified continuation of the criminal prosecution of a person in cases where the law prescribes its termination (for example, when a person is subject to an amnesty and the criminal case must be terminated) should be recognized as one of the forms of bringing a knowingly innocent person to criminal liability. Sh.S. Rashkovskaya proposes to qualify as knowingly illegal bringing to criminal liability the continuation of criminal prosecution of a person against whom there are grounds for termination of the criminal case on rehabilitative grounds.
In foreign criminal legislation, there are rules that otherwise regulate the issue of liability for the type of crime in question. In particular, § 164 of the Criminal Code of the Federal Republic of Germany provides for liability not only for illegally bringing a person to criminal liability, but also for false suspicion of committing a crime, and Art. 344 The Criminal Code of the Republic of Kazakhstan provides for liability for the prosecution of an innocent person who is not subject to criminal liability.
This crime contains a formal element. It is considered completed from the moment charges are filed in accordance with the decision to bring an innocent person to criminal responsibility, regardless of the further progress of the investigation of the case. Such possible consequences commission of the crime in question, such as unlawful conviction of an innocent person, long-term stay of the victim in custody or in prison, loss of work - permanent source the existence of the victim and his dependents may affect the type and amount of punishment imposed by the court on the perpetrator.
Subjective side This crime is characterized only by direct intent. The guilty person is aware that he is prosecuting an innocent person, foresees the possibility that, as a result of his socially dangerous act, an innocent person will be brought to criminal responsibility, and wants to charge him with a crime that this person did not commit.
Bringing a person to criminal liability when there were legal grounds excluding proceedings in the case (expiration of the statute of limitations, mental illness of a person who committed a socially dangerous act, amnesty), incorrect classification of the crime (for example, instead of causing death by negligence, the perpetrator is charged with murder) can form the elements of the crime in question if they are committed with direct intent. If signs of direct intent are not established, then the possibility of applying Art. 344 of the Criminal Code of the Republic of Kazakhstan will be excluded. For example, if the investigator did not know that the person was included in the amnesty and does not stop the criminal prosecution. But if it is established that he extorted a bribe and therefore did not drop the case, then there are signs of direct intent, because he wants to illegally prosecute a person because he did not give him a bribe. Knowledge means that the perpetrator knew the illegality of his act. If it is not established in the case that he reliably knew that the person being prosecuted did not commit this crime, there will be no corpus delicti of the crime in question.
The goals and motives of a crime can be very diverse: revenge, self-interest, envy, careerism, the desire to hide shortcomings in one’s own work or the work of the unit of which the perpetrator is an employee - they do not matter for qualifications, but are necessarily taken into account by the court when determining the punishment. The elements of this crime also exist in cases where the perpetrator unlawfully brings a person to criminal responsibility, guided by the falsely understood interests of the service.
The subject of a crime can only be the persons conducting the inquiry, preliminary investigation, or the prosecutor. Responsibility under this article lies, first of all, with the person who brings the accusation knowingly illegally. The immediate superior of the investigator, inquiry officer or prosecutor, who gave a written instruction about the clearly illegal prosecution of a person as an accused, may be brought to criminal liability under the article in question of the Criminal Code of the Republic of Kazakhstan as an accomplice to the crime in the form of an instigator.
Liability under Part 1 of Art. 344 of the Criminal Code of the Republic of Kazakhstan occurs in the case of illegal prosecution for committing crimes of minor or medium gravity. The public danger of bringing a knowingly innocent person to criminal liability increases if it is combined with accusing a person of committing a serious or especially serious crime. Therefore, part two of this article contains this qualifying feature.