of December 16, 2004 No. 12
About court practice on cases on crimes against interests of service (st.st.424-428 UK)
For the purpose of ensuring the correct and uniform application of the legislation by hearing of cases on crimes against interests of service (authority misuse or office powers, exceeding of the power or office powers, failure to act of the official, office forgery, office negligence) the Plenum of the Supreme Court of the Republic of Belarus
1. Draw the attention of courts, that criminal liability for crimes against interests of service is designed to promote protection of society and its citizens from corruption and socially dangerous acts of the officials made on service by means of use or improper execution of the office powers conferred to them that undermines the principles of proper public administration, equality and social justice, threatens moral foundations of society. Courts shall consider the special public importance of cases on such crimes.
During legal proceedings it is necessary to establish the circle and nature of office powers of the official, the actual circumstances testimonial about bonds of act of the official with its office powers, availability of causal relationship between socially dangerous act on service and the come harmful effects, and also motives and the purposes of deeds.
2. Explain to courts that the officials recognized as those in strict accordance with provisions of the p. 4 of Art. 4 of UK, and office forgery (Art. 427 of UK) official and other representatives on accomplishment of the corresponding actions workers can only be subjects of crimes against interests of service, the provided st.st.424-426, 428 UK.
3. Courts should mean that along with persons which are directly specified in item 1 of the p. 4 of Art. 4 of UK, public agents are also persons who are in public service who within the powers assigned to them on implementation of imperious functions have the right to make orders or orders or to make decisions of persons who are rather not subordinated to them on service. On this basis employees of law enforcement agencies, employees of bodies and divisions for emergency situations, legal executives, military personnel of the border service (can be carried to public agents in case of direct accomplishment of obligations on protection of Frontier), the military personnel of internal troops (in case of direct accomplishment of obligations on protection of public order, convoy and protection of correctional facilities), the staff of state bodies performing control and supervising functions, etc.
4. The persons who are not in public service, but given in accordance with the established procedure authority to the public agent in case of accomplishment of obligations on protection of public order, fight against offenses, on administration of law treat the public representatives (item 2 of the p. 4 of Art. 4 of UK). Members of voluntary team, freelance employees of law enforcement agencies, bodies and divisions for emergency situations, participants of associations of the citizens assisting law enforcement agencies in protection of law and order, in particular, treat such persons (The law of the Republic of Belarus of June 26, 2003. "About participation of citizens in protection of law and order"), public inspectors, jurymen.
5. Courts need to consider that accomplishment by persons, is permanent or temporary or on special power occupying in organizations, the organizations or at the companies (irrespective of patterns of ownership), in Armed Forces, other troops and military forming of the Republic of Belarus of position, organizational and administrative either administrative type duties or making by persons of legally significant actions on which they are authorized in accordance with the established procedure are independent signs of the official and availability of any of them forms good cause for recognition of person official.
6. To holding positions connected with accomplishment of organizational and administrative obligations it is necessary to carry persons performing management of activities of organization, organization or company, their structural divisions, arrangement and personnel recruitment, labor organization or services of workers, maintenance of discipline, application of measures of encouragement and imposing of authority punishments, etc.
7. Holding the positions connected with accomplishment of administrative type duties it is necessary to recognize, in particular, persons performing powers on management and the order of property and money and also the organization of accounting and control of leave and realization of material values.
The conclusion between the worker and the employer of the agreement on acceptance on itself the worker of full financial responsibility for failure to provide of safety of property and other values transferred to it for storage or for other purposes in itself cannot form the basis for recognition of this worker by the official. For this purpose it is necessary that, along with obligations on direct storage of property, the responsible person performed also functions on management or the order it (for example, distribution of material values, etc.).
8. Persons authorized in accordance with the established procedure on making of legally significant actions are the workers making such actions which there are caused or can come legally significant effects in the form of origin, change or the termination of legal relationship which subjects are other persons.
9. It is necessary to understand functions which allocate person according to the law, other regulatory legal act, the order or the order of the higher official or body, competent on that, or the official as special powers.
10. Draw the attention of courts that the officials who are not belonging to the category of the military personnel, and also persons liable for call-up during passing of charges can only be the subject of the crimes provided st.st.424-428 by UK, made in Armed Forces, other troops and military forming of the Republic of Belarus.
11. Explain to courts that authority misuse or office powers (Art. 424 of UK) are such intentional actions of the official on service which correspond to its office powers, that is are connected with implementation of the rights and obligations granted to it, but are made contrary to interests of service from mercenary or other personal interest.
Made contrary to interests of service it is necessary to consider those actions (as well as the failure to act provided by Art. 425 of UK) the official on service which violate requirements of legality or objective need in case of decision making according to the powers assigned to the official.
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