Mediation in bribery as a special type of complicity, reflected in Article 291.1 of the Criminal Code of the Russian Federation

Gorenko Maxim Gennad'evich PhD in Law Lecturer; Department of Criminal Law and Criminology; Kuban State University 350000, Russia, Krasnodar, Stavropol str., 149 maxim_gko@mail.ru

Markov Arman Agasievich Postgraduate student; Department of Criminal Law and Criminology; Kuban State University 350000, Russia, Krasnodar, Stavropol str., 149 mdshop@inbox.ru

Recently, in the specialized literature on criminal law, there has been an increase in the number of publications related to the study of the topic of representation in articles of the Special part of the Criminal Code of the provisions on special types of accomplices regulated in Article 33 of the General Part of the Code. Such scientists as D. A. Bezborodov, E. V. Blagov, A. S. Dreplev, S. A. Ershov, A. A. Ilidzhev, L. V. Inogamova-Hegai, Yu. A. Klimenko, T. I. Kosareva, V. V. Kustova, V. G. Mirzoyan, K. V. Obrazhiev, M. A. Sablina contributed to its scientific development, A. I. Sitnikova, A. K. Subachev, A.V. Travnikov, V. V. Ulyanova, E. V. Fomenko, R. D. Sharapov, V. Yu. Shubina, B. V. Yatselenko and others. It should be especially noted that in October 2023, on the topic "Reflection of the provisions of the General part of the Criminal Code of the Russian Federation on crime in its Special part: problems of theory and legislative regulation", a dissertation for the degree of Doctor of Law, authored by A. A. Ilijev, was successfully defended ^[1]. This event indicates the increased attention of representatives of the scientific community to the topic under consideration.

This interest is mainly explained by the fact that the reflection of the provisions of the General Part of the Criminal Code of the Russian Federation on the types of accomplices in a crime in its Special part, and sometimes going beyond the normative prescriptions of the first, leads to a violation of the consistency of the criminal law, as well as complete or partial discrediting of its institutions. Examples of such situations are the organization of the commission of a specific crime, persuasion, recruitment, involvement, financing, direct complicity, armament, training, education, as well as other acts independently criminalized in articles of the Special Part of the Criminal Code of the Russian Federation, while having specific similarities with individual manifestations of the organizer, instigator and accomplice as accomplices of the crime.

There is an opinion that mediation should also be included in this list ^{[2, p. 14]}. The assessment of this position is of particular interest in the context of the study of the norm on mediation in bribery (Article 291.1 of the Criminal Code of the Russian Federation), which appeared in the criminal law in 2011. So, based on its meaning, mediation in bribery is the direct transfer of a bribe on behalf of the bribe-giver or the bribe-taker, or other assistance to the bribe-giver and (or) the bribe-taker in reaching or implementing an agreement between them on receiving and giving a bribe in a significant amount. Prior to the appearance of Article 291.1 in the Criminal Code of the Russian Federation, these intermediary actions were not recognized as independent crimes and, on the recommendation of the Highest Court, fell under the signs of complicity. In paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2000 No. 6 "On judicial practice in cases of bribery and commercial bribery" it was noted that, based on the specific circumstances of the case, the role in giving or receiving a bribe, criminal liability of an intermediary in bribery occurs exclusively in cases covered by Article 33 of the Criminal Code of the Russian Federation. Note that this explanation is not concretized, i.e. it allows the actions of the mediator to be attributed to both co-execution and organization, incitement or complicity. However, despite this, mediation actions in practice were subject to qualification as aiding and abetting. Moreover, in this form, both intellectual and physical manifestations of the functionality of an intermediary providing assistance to giving or receiving a bribe were considered ^[3]. The first correlated with such methods of assistance as: a) advice; b) instructions; c) provision of information. The second one did not fit any of the physical criteria (provision of funds or instruments for committing a crime; removal of obstacles) of the accomplice's actions in Part 5 of Article 33 of the Criminal Code of the Russian Federation, since it manifested itself in the direct transfer of the bribe object. In the latter case, the criminal law was applied by analogy, which was in contradiction with the principle of legality, which does not allow it (Article 3 of the Criminal Code of the Russian Federation).

At the same time, as M. O. Lipikhin notes, mediation, as a form of action for the physical movement of the object of a bribe in space, acts as nothing more than the fulfillment of the objective side of a separate crime – mediation in bribery, but not complicity ^{[4, p. 113]}. Indeed, mediation in bribery is an independent crime. The perpetrator is responsible for its commission, as well as for the commission of other crimes prohibited by a Special part of the Criminal Code of the Russian Federation. Moreover, its role in the lower border is limited by a significant amount established in Part 1 of Article 291.1 of the Criminal Code of the Russian Federation, i.e. not exceeding twenty-five thousand rubles. It follows from this that mediation in bribery in a small amount is unassailable. However, it cannot be qualified as complicity either, based on rule 13.3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 09, 2013 No. 24 "On Judicial practice in cases of bribery and other corruption crimes", which states that, within the framework of Articles 204.1 and 291.1 of the Criminal Code of the Russian Federation, an intermediary in the transfer of the subject of bribery to an amount not exceeding twenty-five thousand rubles cannot be held responsible as an accomplice in giving and receiving a bribe, petty bribery or commercial bribery, petty commercial bribery with reference to Article 33 of the Criminal Code of the Russian Federation. It seems that such an installation is a forced step on the part of the Highest Court, which is due to the independent criminalization in Articles 204.1 and 291.1 of the Criminal Code of the Russian Federation of commercial bribery and mediation in bribery, respectively. And besides, from the ordinary legal standpoint, the absence of criminality of mediation in bribery in the amount of less than twenty-five thousand rubles, provided that the criminality of all other complicit manifestations of these crimes is preserved, seems unfair ^{[5, p. 89]}.

Without recognizing mediation in bribery in a small amount as complicity in a crime, the Supreme Court of the Russian Federation ignored a similar provision of Part 5 of Article 184 of the Criminal Code of the Russian Federation, which provided for liability for mediation to exert unlawful influence on the result of an official sports competition or a spectacular commercial competition in a significant amount. So, by analogy with Article 291.1 of the Criminal Code of the Russian Federation, the corresponding mediation in the amount of up to twenty-five thousand rubles, within the meaning of part 5 of Article 184 of the Criminal Code of the Russian Federation, is not a crime. It seems that it can be qualified as complicity in the commission of crimes specified in parts 1-4 of Article 184 of the Criminal Code of the Russian Federation, since there are no special clarifications from the Plenum of the Supreme Court of the Russian Federation on this matter. This situation indicates a lack of consensus on the issue under consideration. However, despite this, we still believe that mediation in bribery is, in essence, correlated with complicity. In this regard, it is appropriate to give an example from judicial practice indicating that the judicial authority recognizes competition between the norm of Part 5 of Article 33 of Article 290 and Article 291.1 of the Criminal Code of the Russian Federation. Thus, by the decree of the Presidium of the Zabaikalsky Regional Court dated February 8, 2018 No. 44u-16-2018, the cassation appeal of the convict and his lawyer D.B. Kurochkin was fragmentally satisfied in the following part. The Presidium determined the arguments of the lawyer regarding the reclassification of the actions of the convicted person from part 5 of Article 33 and paragraphs "a", "c" of Part 5 of Article 290 of the Criminal Code of the Russian Federation to paragraph "b" of Part 3 of Article 291.1 of the Criminal Code, because the content of the concept of "mediation in bribery", within the meaning of the law, is similar to the concept "complicity in bribery." The court also considered the situation of the convicted person to be improved by the fact that the sanction of Part 3 of Article 291.1 of the Criminal Code of the Russian Federation (up to ten years in prison) is much milder than the sanction indicated in Part 5 of Article 290 of the Criminal Code of the Russian Federation (up to fifteen years in prison).

The opinion about the similarity of mediation and complicity is widely supported among forensic scientists. For example, A. N. Kugatov considers one of the most optimal ways of legislative regulation of criminal liability for mediation in the commission of crimes to be the use of a set of methods such as including mediation in the list of actions of an accomplice provided for in Part 5 of Article 33 of the Criminal Code of the Russian Federation ^{[6, p. 10]}. According to V. Y. Shubina, in the light of the expansion of criminal spheres of activity in the XXI century, an accomplice often does not play a secondary role in the commission of a crime, because there appears, among others, such a manifestation as mediation, which should also be included in the list of methods of complicity in Part 5 of Article 33 of the Criminal Code of the Russian Federation ^{[7, pp. 8, 38]}. B. V. Yatselenko and E. V. Fomina refer mediation in commercial bribery and bribery to the activities of an accomplice, which received its independent criminalization in a special part of the Criminal Code of the Russian Federation, namely in its articles 204.1 and 291.1. The norm of Part 5 of Article 184 of the Criminal Code of the Russian Federation did not remain without attention of the authors. After all, the actions described in it also project complicit manifestations. In addition, scientists argue that mediation in bribery, as a special rule-supplement, structurally included in a Special part of the Criminal Code of the Russian Federation, is a way by which, based on the criminal law, the gap formed in the institution of complicity is overcome. The latter, in their opinion, can be eliminated if the concept of an accomplice in Part 5 of Article 33 of the Criminal Code of the Russian Federation is adjusted in terms of establishing an open list of actions of the specified accomplice in it ^{[8, pp. 49-50, 52, 54]}. A. Yu. Sungatullin believes that, in comparison with complicity in a crime, the sign of mediation has the greatest similarity with him. This is due to the fact that the actions of the intermediary are associated with facilitating the commission of a corruption crime. Both aiding and abetting essentially boil down to providing assistance to other participants in a criminal act ^{[9, p. 319]}.

It seems that when assigning a particular criminal law category to a certain species or genus, it is necessary to refer to the etymology of the origin of the word, the rules of the Russian language to understand its meaning. This can help to understand the original meaning of the word, identify its roots, and avoid misinterpretation, especially in the context of the formulation of special terms. So, according to the rules of the Russian language, mediation is the promotion of an agreement, a transaction between the parties ^{[10, p. 567]}. Assistance is a constitutive sign of the actions of an accomplice, which follows from the content of Part 5 of Article 33 of the Criminal Code of the Russian Federation. However, in this norm, the list of complicit manifestations is closed, which leads the legislator along the path of actively introducing special varieties of them in articles of the Special part of the Criminal Code of the Russian Federation, one of which is mediation in bribery. Such a meaningful transformation can be fairly described by R. G. Aslanyan's correct remark that the current Criminal Code of the Russian Federation has lost the properties of a systemically organized legal document due to the regulation of contradictory and, in fact, duplicating provisions in it ^{[11, p. 4]}.

It seems that the definition of an accomplice, regulated in Part 5 of Article 33 of the Criminal Code of the Russian Federation, should not contain an exhaustive list of methods of aiding and abetting, it should be open. When implementing this approach, it is possible to exclude liability for mediation in bribery in Article 291.1 of the Criminal Code of the Russian Federation. M. A. Sablina agrees with this opinion. Having conducted a comparative analysis of sanctions, the author argues that the application of Article 291.1 of the Criminal Code of the Russian Federation, in most cases, will contribute to the violation of the basic principle of criminal law — justice, because, for example, the involvement of a person as an accomplice to the recipient of a bribe under part 2 of Article 290 with reference to Article 33 of the Criminal Code of the Russian Federation will be more consistent with the proper course of counteraction corruption crime from the perspective of tightening responsibility for its manifestations, since in this case the punishment can be imposed up to six years in prison. In accordance with Part 1 of Article 291.1 of the Criminal Code of the Russian Federation, the maximum term of imprisonment will not exceed four years. In addition, if we follow the rule on sentencing for an unfinished crime (Article 66 of the Criminal Code of the Russian Federation), then it can be understood that an accomplice in receiving a bribe under part 2 of Article 290 of the Criminal Code of the Russian Federation could be sentenced to three years in prison, provided they perform preparatory functions to create conditions for committing a corruption crime. However, this penalty is similar to the punishment for attempted mediation in bribery under Part 1 of Article 291.1 of the Criminal Code of the Russian Federation ^{[12, p. 161]}.

Thus, it can be concluded that the problem under consideration is mainly related to the imperfection of the norms on the types of accomplices in the General part of the Criminal Code of the Russian Federation. There are a lot of variations of the point reform of the content of Part 5 of Article 33 of the Criminal Code of the Russian Federation in science: from introducing a separate mention of providing other assistance without refusing to list approximate methods of aiding and abetting to the utmost simplification, with the exception of the latter. The first approach seems more acceptable, because, firstly, it includes a number of ways of assistance, which will act as a guide for the law enforcement officer, which will significantly simplify his mental and logical activity in interpreting the rule of law, and secondly, it will leave the opportunity for recognition of others not specified in Part 5 of Article 33 of the Criminal Code of the Russian Federation actions that are complicit, which will lead to the rejection of the regulation of special types of complicity in articles of the Special part of the Criminal Code of the Russian Federation, including mediation in bribery in Article 291.1 of the Criminal Code of the Russian Federation. The idea of an open list of actions of an accomplice has been implemented today at the level of foreign criminal legislation: It is reflected, for example, in Part 5 of Article 16 of the Criminal Code of Belarus, Article 20 of the Criminal Code of Bulgaria and Part 4 of Article 41 of the Criminal Code of Kyrgyzstan. It seems that this positive experience can be perceived by the current Criminal Code of the Russian Federation.