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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of October 16, 2009 No. 19

About court practice on cases on abuse of ex-officio full powers and on abuse of office

(as amended on 11-06-2020)

Due to the questions arising at courts on cases on abuse of ex-officio full powers and on abuse of office, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides:

1. Draw the attention of courts to orientation of criminal liability for crimes against interests of public service to ensuring protection of citizens against corruption and other socially dangerous acts made by officials on service. The persons abusing ex-officio full powers or exceeding the ex-officio full powers encroach on the activities of state bodies, local government bodies, public and local government offices, state corporations, state-owned companies regulated by regulatory legal acts, state and municipal unitary enterprises, joint-stock companies which controlling stock is owned by the Russian Federation, subjects of the Russian Federation or municipalities, the Armed Forces of the Russian Federation, other troops, military forming of the Russian Federation and bodies therefore the rights and legitimate interests of citizens or the organizations or interests of society and state protected by the law are significantly violated.

2. Courts by consideration of criminal cases about abuse of ex-officio full powers (article 285 Criminal Code of the Russian Federation) and about abuse of office (article 286 Criminal Code of the Russian Federation) need to establish whether the defendant is subject of the specified crimes - the official. At the same time it is necessary to recognize that according to Item 1 of notes to article 285 Criminal Code of the Russian Federation persons are recognized official, it is permanent, temporary or on special power the performing functions of the public agent or the performing organizational and administrative, administrative functions in state bodies, local government bodies, the public and local government offices, the state corporations, state-owned companies, state and municipal unitary enterprises, joint-stock companies which controlling stock the Russian Federation, subjects of the Russian Federation or municipalities, and also in the Armed Forces of the Russian Federation, other troops, military forming of the Russian Federation and bodies owns.

3. To performing functions of the public agent it is necessary to carry persons given the rights and obligations on implementation of functions of bodies of legislative, executive or judicial authority and also, proceeding from contents of the note to article 318 Criminal Code of the Russian Federation, other persons of the law enforcement or monitoring bodies given in the procedure established by the law administrative authority concerning persons which are not from them in job dependency or the right to make the decisions obligatory for execution by citizens, the organizations, organizations irrespective of their departmental accessory and patterns of ownership.

4. It is necessary to understand powers of the official which are connected with management of labor collective of state body, public or local government office (its structural division) or the certain workers who are under their office supervision, with forming of personnel structure and determination of labor functions of workers, with the organization of procedure for service, application of measures of encouragement or rewarding, imposing of authority punishments, etc. as organizational and administrative functions.

Powers of the persons on decision making having legal value and attracting certain legal effects belong to organizational and administrative functions (for example, on issue by the health worker of leaf of temporary disability, establishment by the employee of organization of medico-social examination of the fact of availability at the citizen of disability, to acceptance of examinations and exposure of estimates by the member of the state examination (certification) commission).

5. As administrative functions it is necessary to consider powers of the official on management and the order of the property and (or) money which are on balance and (or) bank accounts of the organizations, organizations, military units and divisions and also on making of other actions (for example, on decision making about salary accrual, awards, to control of movement of material values, determination of procedure for their storage, accounting and control of their expenditure).

6. Execution of functions of the official on special power means that person performs functions of the public agent, performs the organizational and administrative or administrative functions assigned to it by the law, other regulatory legal act, the order or the order of the higher official or body, competent on that, or the official (for example, functions of the jury member). Functions of the official on special power can be performed during certain time or once, and also can be combined with the main work.

In case of temporary execution of functions of the official or in case of their execution on special power person can be acknowledged official only during execution of the functions assigned to it.

If person appointed to position with violation of the requirements or restrictions established by the law or other regulatory legal acts to the candidate for this position (for example, in the absence of the diploma about higher education, necessary length of service, in the presence of criminal record, etc.), from mercenary or other personal interest used office powers contrary to interests of service or made the actions which are obviously going beyond its powers, entailed fundamental breach of the rights and legitimate interests of citizens or the organizations or the interests of society or state protected by the law, then such actions should be qualified respectively as abuse of ex-officio full powers or as abuse of office.

7. In the Armed Forces of the Russian Federation, other troops, military (special) forming and bodies performing functions on ensuring defense and safety of the state, officials it is permanent, temporary or on special power the performing organizational and administrative and (or) administrative functions, can be chiefs on official position and (or) military rank.

Chiefs on official position are persons to whom the military personnel is subordinated on service. It is necessary to carry to them:

persons holding the corresponding military positions according to the state (for example, the commander of department, company, the chief of ware service of regiment);

persons, the acting as on the corresponding military position and also who are temporarily performing functions of the official on special power.

Faces of civil personnel are chiefs for the subordinate military personnel according to the held established post.

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