Should policemen be additionally punished for accepting bribes?

The Liublino district court considered the guilt of two RPS agents, accused of accepting a bribe, proven on May 16 of 2013. The proceedings, chaired by Bogdan Vasiliev, lasted for almost two months. According to the investigation, the crime unfolded as follows: Maxim Savenkov, while on duty, pulled Alexey Shablinsky over and discovered that the latter’s driver license was forged. M.Savenkov did not document the offense and demanded money instead, beginning to bargain with the driver about the “settlement of the matter” for 100000 roubles. The driver was able to talk the officer down to 40000 roubles. A.Shablinsky assured the RPS agent that he was leaving to get the money, while in fact went to the police.

Meanwhile, teams changed at the station. M.Savenkov informed his colleague Nikolay Sivakov about A.Shablinsky. When delivering the money, A.Shablinsky persuaded N.Sivakov to give a further discount of 5000 roubles, and the latter agreed after talking to M.Savenkov on the phone. The operatives made a doublet of 35000 roubles (5000 in real money), and N.Sivakov was detained while in possession of the doublet, after he returned the apprehended documents to A.Shablinsky.

M.Savenkov refused to admit his guilt during the investigation and the trial and insisted that he had pulled nobody over and seen no forged documents, whiles his accomplice, to the contrary, repented and confirmed accepting the money. A.Shablinsky, the main witness, never appeared in court, and is wanted for forgery of documents.

On May 16 of 2013, B.Vasiliev sentenced M.Savenkov to five years, and N.Sivakov – to three years of imprisonment in a high security penitentiary colony. Having qualified the accomplices’ actions under clause “a” of part 5 of Article 290 of the Penal Code (accepting a bribe with previous collusion – up to 12 years of imprisonment), B.Vasiliev also took into account the clause “o” of Article 63 of the Code. Said provision states that committing the crime by law enforcement officers is an aggravation.

The public prosecutor and N.Sivakov complained about the sentence to the Moscow city court. Deputy Interdistrict Prosecutor of Liublino Galina Kobzeva requested in her address to change the sentence without contesting the verdict of guilty. In her opinion, B.Vasiliev applied the criminal law incorrectly. First, as a part of the bribe was a doublet, G.Kobzeva believes that the convicts’ intent was not completed. Therefore, the crime should be reclassified as an attempt, and part 3 of Article 30 of the Penal Code should be applied. Second, the prosecutor demanded that the court eliminate from the sentence the reference to the “police” aggravation – that same clause “o”. G.Kobzeva argued that, since the imputed Article 290 already takes this into account as a qualification indicator (it is an official malfeasance), it should not be taken into account when assigning the punishment (part 2 of Article 63 of the Penal Code). According to the prosecutor’s calculations, the sentence for each of the convicts should be lowered by four months.

In his turn, N.Sivakov agreed with the prosecutor’s arguments concerning the change of the sentence and pointed out the alleged provocation by A.Shablinsky. On the basis of this, he requested to re-qualify his actions as an attempt to mediate (part 3 of Article 30, part 2 of Article 291.1 of the Penal Code – up to seven years) and to be assigned a punishment without imprisonment.

The Chamber of the Moscow City Court chaired by Alexey Marinenko dismissed each argument in turn but one – the judges agreed that the clause “o” of Article 63 of the Penal Code had been applied incorrectly. The instance of appeal pointed out: “In this case, the aggravation is an indicator of the crime committed by M.Savenkov and N.Sivakov, and should therefore be removed from the sentence”. It decreased each one’s sentence by three months. The rest of the sentence by B.Vasiliev was left unchanged.

Contradictory practice

The arguable clause “o” was introduced to the Penal Code on July 22 of 2010 upon suggestion by the then President Dmitry Medvedev within the framework of the reform of the MIA that was launched after a series of big crimes committed by militia officers. The shoot-out by Major Denis Yevsiukov in April of 2009 in a supermarket, with victims and injured, drew the most response. Speaking at the broadened assembly of the MIA in February of 2010, D.Medvedev said: “I suggested considering the crime committed by a law enforcement officer as an aggravation of the criminal liability”.

However, three years later and the courts are still unable to elaborate a uniform practice for the cases, when the main article of the accusation is an official one (Article 285 – abuse of authority, Article 290 – accepting a bribe, Article 292 – official forgery etc.). Judging by the studied sentences, the first instance courts frequently indicate this as an aggravation, but the instance of appeal always debunks such interpretation. The public prosecutors are also in dissent: there are cases, when they insist on the application of the aggravation, while in other instances they go to higher courts to contest it.

Still, sometimes a sentence with the clause “o” is not contested and enters into force. Arthur Karpov, Judge of the Basmanny District Court, applied this provision in the sentence to Poletaev, an agent of the RPS, who had been caught in the process of accepting a bribe from a violator of traffic rules. For 5000 roubles, the policeman was going to exempt him from liability for going on the wrong side of the tramway tracks, which brings cancellation of the driver’s license. As a result, the agent got a fine of 200000 roubles and a two-year ban from his position. Tamara Samarina, Judge of the Lermontovsky city court, used a similar approach in May of 2013, when she sentenced Vladimir Rykunov, Head of the FMS Department of Stavropolsky Territory (certain officers of the migration service are in the staff of the MIA), to a fine of 100000 roubles for a bribe of 2500 roubles – together with accomplices, he illegally extended the stay of foreign citizens in “his” territory for kickback.

Experts tend to more often believe that the approach taken by the instance of appeal is correct. Advocate Vladimir Neustroev of “Olevinsky, Buyukian and Partners” legal bureau is convinced: “This is a typical mistake made by many district courts: they take the flash-card with the accusatory resolution from the investigation and “copy-paste” the text into the sentence. This aggravation may only be applied, where it is not in the disposition of the Penal Code article”. Advocate Alexander Petrov of the Law Firm "YUST" agrees: in his opinion, elimination of the clause “o” from the sentences for official malfeasances by policemen is correct, since the same qualifying indicator cannot be repeatedly taken into account, when assigning punishment. He said: “[Sivakov and Savenkov, for example] had the indicators of officials exactly due to the fact that they, being law enforcement officers, were endowed with certain authority. In such situation, application of said aggravation appears redundant”.

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However, the judges, possibly, won’t have to deliberate on this. When Vladimir Putin was still a candidate to Presidency in February of 2012, he spoke at the meeting with the MIA employees and said that he did not exclude the possibility of revocation of the extra criminal liability for policemen. When one of those present asked whether such liability was temporary and whether it would include officers of all law enforcement bodies, the future Head of State said that the measure should not “remain in the legislation forever”. He stated: “I hope that, in time, the provisions of this type will disappear and be replaced with moral responsibility and norms of ethics”.

See the source of the publication here.