How to prove commercial bribery
Commercial bribery as a crime committed against public interests in commercial organizations (Art. 204 of the Criminal Code), is often trudnodokazuemym. Its defendants are the CEOs and their deputies of companies whose interests are being harmed. The real victims in such situations are clients, employees and shareholders of these organizations. Due to the uniqueness of the subject, proving a crime is difficult for law enforcement agencies.
Features of commercial bribery as a crime
The interests of criminals as offering rewards for a certain action or inaction lie in the sphere of entrepreneurial activity, where additional stimulation of the counterparty's activity is sometimes not considered a shameful decision. But there are times when it brings real damage to the rights and legally protected interests of others, for example:
- the contract is signed not with the best supplier, but with the one who additionally stimulated the customer's representative;
- for material reward, information is transferred to the company, which by chance is not classified as a commercial secret;
- material reward to the customer-receiver allows to build bridges or roads of lower quality, and the collapse of the bridge threatens many damage.
These situations force the legislator to pay attention to even minor cases of bribery, which threaten both infringement of competition and damage to an unlimited number of citizens. But commercial bribery, as a crime, often becomes a weapon of unfair competition. Any accusation against the head of a successful company, even unsubstantiated, can lead to his criminal prosecution, which means that the company loses its position in the market.
This is what should prompt the law enforcement agencies to be as attentive as possible to proving the real fact of commercial bribery, not relying on unfounded statements of persons who have transferred a bribe and, having accused its recipient of extortion, are hiding from responsibility. In practice, the court often takes for granted unsubstantiated statements that do not in any way confirm the reality of the crime.
The initiation of a commercial bribery case begins to act as a measure of pressure on competitors or, for example, as one of the instruments of a raider takeover, or, if a case is brought against public or political organizations, as a measure of influence on political opponents.
Features of proof in cases of commercial bribery
The norms of Art. 73 of the CCP stipulate that the following circumstances must be explained and supported by evidence to the court in order to pass a conviction:
- the event of a crime or the very fact of its commission;
- the guilt of the person, and in the case of commercial bribery, guilt must be proven in the form of intent;
- motives;
- the amount of damage caused by the crime.
In the case of commercial bribery, the indictment submitted to the court must specify:
- the fact of illegal transfer of money, securities, other property, as well as illegal provision of services of a property nature, any real receipt of property at the disposal of an official;
- the fact that the transfer was due to the commission of certain actions or refusal of them, the causal relationship between the transfer of property and the action;
- all persons who participated in the crime or contributed to its commission;
- the circumstances that determine the degree of responsibility of all participants in a corrupt transaction.
According to the norms of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 24, the crime is considered completed from the moment the money is received into the account of the person accused of bribery, or into his own hands. Without proof of the fact that the good was actually received, a crime can only be considered as an attempt at commercial bribery. Accordingly, the main thing that law enforcement agencies have to prove is the actual receipt of money. The testimony of the bribe giver that he personally transferred the bribe, as a person interested in avoiding criminal liability, cannot be evidence of the receipt of funds. But still there are cases when unfounded testimonies of such bribes can deprive a person of freedom.
Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6 of 10.02.2000, which has expired today, obliged investigators in cases of bribery and commercial bribery to also prove which rights and legitimate interests of others were damaged as a result of the transfer of remuneration. The decision became invalid, but this did not cancel the effect of the norms of the Criminal Procedure Code of the Russian Federation, which speaks of the need to prove the real amount of damage caused by the crime. Since Article 204 of the Criminal Code of the Russian Federation refers to the chapter of the Criminal Code, which speaks of crimes against the interests of service in a commercial organization, the amount of illegal remuneration cannot be considered as damage. The bribe giver is not a victim of such a plan.
In practice, investigators shy away from proving the fact of a real transfer of money, and from proving the fact of causing any damage to the interests of a commercial organization. The court in a number of cases indicates that, according to Art. 220 of the Code of Criminal Procedure, in the indictment the investigator must provide data on the victim, the nature and amount of harm caused to him by the crime. By no means always, due to the very construction of the article on commercial bribery, these data can be provided by the investigator due to the impossibility of realistically assessing the degree of damage caused to the interests of the organization. In the majority of cases considered under the article on commercial bribery, the courts pass a conviction without taking into account this rule of law.
Speaking about the circle of persons involved in a corrupt transaction, it is necessary to prove that the person really had the right to perform managerial functions and was endowed with appropriate powers. Resolution of the Plenum of the RF Armed Forces No. 9, which speaks of abuse of power, in clause 11 clearly stipulates that management functions in the organization as a whole, and not in its separate subdivision, belong either to the sole executive body or to a person replacing him. An indication that a member of the board of directors has such functions can hardly be regarded as correct, since this person does not have formal rights to issue orders and instructions. Accordingly, the subject of a crime cannot be the head of a department, the head of a construction site, a foreman or any other person lower in the hierarchy. In practice, law enforcement agencies and courts often neglect this interpretation of the law. Sometimes the performance of administrative and economic functions is equated with managerial ones (see case No. 1-201 / 019 of the Pervomaisky court of Kirov), but such an analogy does not directly follow from the norms of Art. 204 of the Criminal Code of the Russian Federation.
Considering the practice of proof in cases of commercial bribery, it can be concluded that the requirements for proof, in accordance with the provisions of Art. 73 of the Code of Criminal Procedure of the Russian Federation are not always implemented by law enforcement agencies.
08.12.2020
