The subject of inappropriate spending of budget funds: some problematic aspects

Pastushenko Artem Aleksandrovich Senior Lecturer of the Department of Public and Private Law of the Faculty of Jurisprudence and Social Sphere of the Far Eastern Institute of Management – Branch of the Russian Academy of National Economy and Public Administration under the President of the Russian Federation 680000, Russia, Khabarovsk Krai, Khabarovsk, Muravyov-Amursky str., 33 Gotthard89@rambler.ru Other publications by this author

Achieving and maintaining the state of security of a single individual, society as a whole, including public-power institutions, is the most important task of the existence of the state. Moreover, this security can be expressed both literally in protection from physical encroachment, and in providing the necessary security measures aimed at supporting and developing society. Thus, in the National Security Strategy of the Russian Federation, approved by Presidential Decree No. 400 of 02.07.2021, the preservation of the people of Russia and the development of human potential are among the strategic national priorities. In the context of which, as indicated in the strategy, attention is paid to the support of the family, motherhood, fatherhood and childhood, the upbringing of children, their comprehensive spiritual, moral, intellectual and physical development.

Along with this national priority, such as state and economic security are highlighted, which are associated, among other things, with the stable functioning of government bodies and their proper use of budgetary resources.

The diverse nature of public relations allows us to talk about situations in which potential damage can be caused to the two above-mentioned national priorities at once. For example, we are talking about legal relations related to the expenditure of budgetary funds in the areas of social orientation, or rather about the possible criminal-legal aspect of such legal relations.

Taking into account the recognized importance of these legal relations, we will also pay attention to the amount of budget funds that appears in them.

Thus, according to the Ministry of Finance of the Russian Federation, the total expenditure of the federal budget of the Russian Federation for 2021 amounted to 24,762.1 billion rubles, of which social expenditures amounted to 9,431.7 billion rubles (38% of the total funds) ^[1].

Two of these factors (the importance of legal relations of a social orientation and the amount of budget funds involved) indicate the relevance of studying the degree of criminal law protection in this area. Since the key element of legal relations is their subject and the absence of a subject will be evidence of the absence of these relations, it is important to consider the question of the security of these legal relations from the position of their subject composition.

Speaking about the specific purpose of studying this issue, we note that this will be an analysis of the norms of criminal, budgetary and other legislation of the Russian Federation and their practical application for their sufficiency to bring to criminal responsibility participants in legal relations on the expenditure of budgetary funds.

To achieve this goal, general scientific methods (dialectics, formal logic, system analysis), interdisciplinary methods (statistical, lexical, modeling) and special methods (formal legal, comparative legal) were used.

It should be noted that the issues of the subject composition of budget spending, in the light of criminal legislation, were previously considered by K.S. Harutyunyan, A.Ya. Asnis, T.B. Basova, D.N. Borkov, D.A. Boikov, A.Ya. Kazakov, A.G. Karpov, A.M. Marzaganova, V.A. Mineev, A.V. Ofitserov, R.R. Fazylov.

These scientists have made an invaluable contribution to the development of criminal law thought on the protection of budgetary funds and, in particular, issues related to subjects of legal relations in this area. However, within the framework of their scientific research, a comparative analysis of the approaches of law enforcement officers to the relevance of specific participants in budgetary legal relations to the number of subjects who can be brought to criminal responsibility for illegal actions when spending budget funds was not carried out. In addition, during the period of their research, the category of recipient of budgetary funds was not represented by the new participants discussed in this paper, which ultimately determines the scientific novelty of the research work carried out. 

As already noted, the key element of legal relations that interests us in the context of the study is the subject. The form of expression of the signs of the subject of legal relations will depend on the specifics of the relations themselves. So the indicator of the presence or absence of criminal law relations is such a legal category as the corpus delicti. One of the elements of which is the subject of the crime. The role of the subject in this construction was succinctly and meaningfully noted by A.V. Naumov – "the subject of a crime is one of the elements of the corpus delicti, without which criminal liability is impossible" ^{[2, p. 107]}.

The basic triad of signs of the subject of the crime is not exhaustive in absolute meaning, being certainly universal characterizing indicators of the relevance of the participant of the relationship to the category of "subject of the corpus delicti", they do not take into account the specific nature of individual groups of legal relations, which requires the establishment of additional criteria.

 The presence of such additional criteria, along with the general ones, allows us to talk about the special status of the subject of the corpus delicti, which has received the name "special subject of the corpus delicti". This status includes, among other things, "specific rights and obligations necessary for the exercise of their functions in the field of these special relations" ^{[3, p. 188]}.

The species diversity of these additional criteria allowed representatives of criminal law science to classify them ^{[4, pp. 174-175]}. Among the allocated ones, which make it possible to identify the subject of the corpus delicti as a special one, is a sign of official position, the content of which lies in the official and professional status of a person.

Within the framework of this type of special subjects, it is also possible to conditionally identify subjects with even more specific characteristics that have criminal legal significance.

Here is an example of such specificity.

The subject of such a crime as abuse of official powers (an official) is certainly special, just according to the official-professional criterion.

However, in one chapter with Article 285 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation) there is an article, the signs of the subject of which include an indicator different from the official. We are talking about Article 2851 of the Criminal Code of the Russian Federation "Misuse of budget funds". The subject of the corpus delicti forming this article is an official of the recipient of budgetary funds ^{[5, p. 51; 6, p. 92-93; 7, p. 93; 8, p. 133; 9, p. 187; 10, p. 107-108; 11, p. 115; 12, p. 121; 13, p. 88]}.

For the application of Article 2851 of the Criminal Code of the Russian Federation, a person's aggregate compliance with the two criteria mentioned ("official" - "recipient of budgetary funds") is required.

It follows from the above that the subject of inappropriate expenditure of budgetary funds is not just an official, but an official who has an official-labor relationship with such a financial and budgetary category as the recipient of budgetary funds. Compliance with the criterion "recipient of budgetary funds" for the criminal law implementation of Article 2851 of the Criminal Code of the Russian Federation is of key importance, the net compliance of a potential subject of inappropriate expenditure of budgetary funds with the characteristics of an official will not have criminal legal significance.  

Based on the above, it suggests that the subject of inappropriate expenditure of budgetary funds must fully meet the criteria of an official and at the same time meet an additional criterion associated with the status of a recipient of budgetary funds.

However, having carried out a systematic analysis of the concept of "official", enshrined in the note to Article 285 of the Criminal Code of the Russian Federation, and the concept of "recipient of budgetary funds (recipient of funds of the corresponding budget)", enshrined in Article 6 of the Budget Code of the Russian Federation (hereinafter - the BC of the Russian Federation), it is possible to come to an unambiguous conclusion that not every official, in the understanding of the criminal law, he may be an official of the recipient of budgetary funds.

Thus, it follows directly from the concept of "recipient of budgetary funds (recipient of funds of the corresponding budget)" that this category includes those who have the right to accept and (or) fulfill budgetary obligations on behalf of a public legal entity at the expense of the corresponding budget, unless otherwise established by the BC of the Russian Federation:

– public authority (state body);

– management body of the state extra-budgetary fund;

– local government body;

– local administration body;

– a state institution under the jurisdiction of the chief administrator (manager) of budgetary funds.

At the same time, it follows from other norms of the BC of the Russian Federation that the subject content of the recipient of budgetary funds is not limited only to those listed in paragraph 38 of Article 6 of the BC of the Russian Federation.

The powers of recipients of budgetary funds are also carried out by:

– military administration bodies, associations, formations and military units (paragraph 7 of Article 241 of the BC of the Russian Federation);

– State Atomic Energy Corporation Rosatom (paragraph 8 of Article 241 of the BC of the Russian Federation);

– State Corporation for Space Activities "Roscosmos" (paragraph 8 of Article 241 of the BC of the Russian Federation);

– public law company "Single Customer in the field of construction" (paragraph 8.1 of Article 241 of the BC of the Russian Federation);

– The All-Russian public-state movement of children and youth (paragraph 8.2 of Article 241 of the BC of the Russian Federation).

 In turn, the study of the category of "official" with reference to the objective side of the misuse of budgetary funds, which in the most generalized form represents illegal actions in the direction of budgetary funds for purposes that are not defined as initial, in other words, for purposes for which these funds were not allocated at all, showed that for the implementation of Article 2851 of the Criminal Code of the Russian Federation has the meaning of the "second block" of the concept of "official" described in the note to Article 285 of the Criminal Code of the Russian Federation.

We are talking about the performance of administrative and economic functions by a person (the powers of an official to manage and dispose of property and (or) funds on the balance sheet and (or) bank accounts of organizations, institutions, military units and subdivisions, as well as to perform other actions (for example, to make decisions on payroll, bonuses, monitoring the movement of material assets, determining the order of their storage, accounting and control over their expenditure) in specific bodies or organizations.

Accordingly, if we compare the two categories that are key for the subject of non-targeted expenditure of budgetary funds ("official" and "recipient of budgetary funds"), it is clear that the bodies or organizations in which the person must perform administrative and economic functions do not fully correspond to the above list of recipients of budgetary funds, so autonomous and budgetary institutions remained aside, unitary enterprises, business entities that meet the criteria described in the note to Article 285 of the Criminal Code of the Russian Federation, state-owned companies. Also note that not all state corporations and public law companies, as noted above, have the status of a recipient of budget funds.

Thus, when performing actions that fall under the objective side of the misuse of budgetary funds, for example, by a person performing administrative and economic functions in an autonomous or budgetary institution, such a person cannot be held liable in accordance with Article 2851 of the Criminal Code of the Russian Federation ^[14]. Similarly, an official of any other organization that does not have the status of a recipient of budgetary funds cannot be punished according to the specified norm of the criminal law.

However, such an obvious conclusion at first glance is not unconditional in a practical environment.

For example, the letter of the Ministry of Finance of the Russian Federation dated 21.11.2018 No. 02-09-09/84082 ^[15] contains two interrelated theses:

– a budgetary institution is not a recipient of budgetary funds;

– an official of a budgetary institution cannot be held liable under Article 2851 of the Criminal Code of the Russian Federation.

At the same time, another federal body, the Federal Treasury, takes the opposite position.

Thus, from the Order of the Treasury of Russia dated August 22, 2018 No. 231 ^[16], it follows that on the basis of information obtained from the results of control and supervisory activities, an appropriate information and reference document is being formed - a Classifier of violations (risks) identified by the Federal Treasury during control in the financial and budgetary sphere (hereinafter - Classifier).

The classifier approved by the Head of the Federal Treasury on December 19, 2017 (as amended on 07/24/2023) ^[17], as one of the subgroups of violations identified by treasurers, "misuse of subsidies by budgetary and autonomous institutions, including subsidies for financial support of their performance of state (municipal) tasks" is defined.

This subgroup includes such a violation as "Expenditure of subsidy funds for financial support of the fulfillment of the state (municipal) task for payment of goods (works, services) not provided for by the state (municipal) task", for which, according to the Treasury of Russia, liability is provided, as defined by Article 2851 of the Criminal Code of the Russian Federation.

Similarly, the courts, when considering criminal cases on charges of committing misuse of budgetary funds, hold opposite views.

Thus, in the Appeal Decision of the Moscow Regional Court of March 02, 2017, the court, relying only on Part 2 of Article 3061 of the Criminal Code of the Russian Federation regulating general issues of responsibility of persons who are not participants in the budget process, concluded that it was possible to bring officials of state autonomous institutions to criminal responsibility under Article 2851 of the Criminal Code ^[18].

In another case, the court conducted a comparative analysis of the category "misuse of budgetary funds" within the framework of Article 3064 of the Criminal Code of the Russian Federation and the content of the budgetary status of a budgetary institution, according to the results of which the person accused of committing a crime under paragraph "b" of Part 2 of Article 2851 of the Criminal Code of the Russian Federation was acquitted, as it was noted by the court: "expenditures of budgetary institutions are carried out outside the budget process" ^[19].

In our opinion, the current legal regulation in the budgetary sphere allows us to come to the conclusion that it is impossible to endow officials of budgetary and autonomous institutions with the status of "official recipient of budgetary funds" and, accordingly, does not allow them to be held accountable under Article 2851 of the Criminal Code of the Russian Federation as executors. 

This rule also applies to other previously mentioned organizations that are not included in the list of recipients of budgetary funds.

If the ratio of the categories "official" and "official of the recipient" allowed us to come to the above-mentioned results, then we can ask another question, at first glance, contradictory: does each person classified as a recipient of budgetary funds meet the characteristics of an official?

To answer this question, let's consider the last of the authorized recipients of budget funds – the All-Russian public-state movement of children and youth.

From the content of the norms of Federal Law No. 261-FZ dated 07/14/2022 "On the Russian Movement of Children and Youth" and the Charter of the All-Russian Public-State Movement of Children and Youth "Movement of the First" ^[20] (hereinafter referred to as the Charter, the Movement), it follows that its bodies include the Congress of the Movement, the Supervisory Board of the Movement, the Coordinating Council Movement, Movement Board, Chairman of the Movement Board.

In addition, taking into account the structure of the Movement, other "territorial" governing bodies are being formed. For example, at the level of a regional office, the following are formed: the conference of the regional office, the council of the regional office, the chairman of the council of the regional office.

Based on the previously mentioned note to Article 285 of the Criminal Code of the Russian Federation, a person, in order to be classified as an official, must meet one of the following "functional" criteria ^[21]:

– exercise of the function of a representative of the authorities;

– performing organizational and administrative, administrative and economic functions in the bodies, organizations specified in the note, as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation.

The nature of the powers vested in the Movement's governing bodies makes it possible to come to the conclusion that it is the sole executive bodies of the Movement that are of interest to resolve the issue we have raised. Thus, it follows from the provisions of the Charter that they are the ones who have the authority to dispose of funds (for example, sub-paragraphs 8.31.1 and 8.31.4 of paragraph 8.31 of the Charter of the Movement). The same bodies can be confidently attributed to the number of carrying out organizational and administrative functions (for example, sub-paragraphs 8.31.2 and 8.31.3 of paragraph 8.31 of the Movement's Charter).

In purely functional terms, it is the persons who fill these positions that are closest to the category of "official" in its criminal-legal understanding.

However, as attention has already been drawn, the performance of organizational and administrative, administrative and economic functions should be carried out in strictly defined bodies or organizations, which the Movement does not belong to, since it was created in the organizational and legal form of a public movement (paragraph 1.2 of the Movement's Charter).

Accordingly, for this reason, persons filling the relevant positions in the Movement cannot be officials.

Based on the explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 16.10.2009 No. 19 "On judicial practice in cases of abuse of official powers and abuse of official powers" ^[22] they are also not representatives of the authorities.

Apart from other sole executive bodies of the Movement, it is necessary to consider the Chairman of the Board of the Movement, who, in addition to being endowed with the mentioned functions, is a person holding a state position of the Russian Federation (part 2 of Article 20 of Federal Law No. 261-FZ of 14.07.2022 "On the Russian Movement of Children and Youth").

At the same time, a comparative analysis of the category of "person exercising the function of a representative of power", based on the above-mentioned explanations of the Plenum of the Supreme Court of the Russian Federation, the actual functionality of the Chairman of the Board of the Movement, defined by the Charter of the Movement, and the content of the legal status of the Movement, even if there is a status of a public office of the Russian Federation, does not allow us to unambiguously attribute the Chairman of the Board of the Movement to the number of officials, so, in our opinion, the Chairman of the Board of the Movement cannot be a subject of inappropriate spending of budgetary funds. However, he may be held liable under part 2 of Article 285 of the Criminal Code of the Russian Federation, which does not solve the issue of misuse of budget funds.

Summarizing the results of the study, we come to the following conclusions:

1) Officials of budgetary and autonomous institutions, as well as officials of other organizations that do not have the status of "recipient of budgetary funds", cannot be considered as officials of the recipient of budgetary funds, and therefore are not subjects of inappropriate expenditure of budgetary funds provided for in Article 2851 of the Criminal Code of the Russian Federation.

2) Persons performing organizational and administrative, administrative and economic functions in the Movement cannot be classified as an "official", due to the fact that the concept of "official" does not include social movements.

The identified shortcomings can be stopped in two independent ways. So, in order to eliminate the first one (the limitation of the category "official of the recipient of budgetary funds"), taking into account other gross shortcomings of Article 2851 of the Criminal Code of the Russian Federation, in our opinion, it is advisable to switch to the use of Article 285 of the Criminal Code of the Russian Federation in order to counter the misuse of budgetary funds (with its proper adjustment) and simultaneously invalidate Article 2851 of the Criminal Code of the Russian Federation.

For example, the disposition of Part 1 of Article 285 of the Criminal Code of the Russian Federation could be stated as follows: "1. The use by an official of his official powers contrary to the interests of the service, if this act was committed out of selfish or other personal interest and entailed a significant violation of the rights, legitimate interests of citizens or organizations or the legally protected interests of society or the state, or the use of budgetary funds in a significant amount."

The second disadvantage can be eliminated by modernizing the conceptual apparatus, namely the inclusion of social movements in the concept of "official" (note 1 to Article 285 of the Criminal Code of the Russian Federation), which will correspond to the formed trend to expand this concept ^[23].

As a result of such revision, Note 1 to Article 285 of the Criminal Code of the Russian Federation can be presented in the following form: "Officials in the articles of this chapter are recognized as persons who permanently, temporarily or by special authority perform the functions of a representative of the authorities or perform organizational and administrative, administrative and economic functions in state bodies, local self-government bodies, state and municipal institutions, state extra-budgetary funds, state corporations, state-owned companies, public law companies, social movements, state and municipal unitary enterprises, business entities in whose supreme governing body the Russian Federation, a subject of the Russian Federation or a municipal entity has the right directly or indirectly (through persons controlled by them) to dispose of more than fifty by percentage of votes or in which the Russian Federation, a subject of the Russian Federation or a municipal entity has the right to appoint (elect) a sole executive body and (or) more than fifty percent of the composition of the collegial management body in joint-stock companies in respect of which a special right to participate of the Russian Federation, subjects of the Russian Federation or municipalities in the management of such joint-stock companies is used. companies ("golden action"), as well as in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation."