Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
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Asis ten tes Ad mi nis tra ti vos
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 40, Nº 72 (2022), 813-822
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/09/2021 Aceptado el 26/12/2021
Abuse of the right by civil servants in the
aspect of the basis of criminal liability
DOI: https://doi.org/10.46398/cuestpol.4072.49
Olga Sergeevna Guzeeva *
Abstract
The objective of the article was to examine the problems
associated with the search for theoretical foundations for the
legal-criminal assessment of the abuse of the law by ocial
representatives of the State. It is divided into two situations: (a)
an evaluation of the actions of public servants who consistently
embody the illegitimate and illegal policy of the State; b)
an evaluation of the actions of state representatives under
conditions where such actions diverge from the content of the
state’s legal policy. When the criminal conduct of public servants
is a continuation of the «criminal policy» of the State, their
responsibility cannot be based entirely on the concept of abuse
of rights. The authors used the comparison method as the main method
of the research. In conclusion, they distinguish the application of illegal
laws and the illegal application of laws. If in the rst case it is not possible
to establish signs of abuse of the right, then in the second case it is quite
possible scientically speaking, which is essential for the qualication of
the actions of the perpetrators.
Keywords: constitutionalization of criminal law; responsibility of public
ocials; state responsibility; abuse of the law; ocial crime.
* Judge of the Arbitration Court of the Moscow Region, Russian Federation. ORCID ID: https://orcid.
org/0000-0002-6810-395X
814
Olga Sergeevna Guzeeva
Abuse of the right by civil servants in the aspect of the basis of criminal liability
Abuso del derecho por parte de los funcionarios
públicos en el aspecto de la base de la responsabilidad
penal
Resumen
El objetivo del artículo fue examinar los problemas asociados a la
búsqueda de fundamentos teóricos para la valoración jurídico-penal del
abuso de la ley por parte de representantes ociales del Estado. Se divide
en dos situaciones: a) una evaluación de las acciones de los servidores
públicos que consistentemente encarnan la política ilegítima e ilegal del
Estado; b) una evaluación de las acciones de los representantes del estado
en condiciones en que tales acciones divergen del contenido de la política
legal del estado. Cuando la conducta delictiva de los servidores públicos es
una continuación de la «política criminal» del Estado, su responsabilidad
no puede basarse enteramente en el concepto de abuso de derecho. Los
autores utilizaron el método de comparación como método principal de la
investigación. Como conclusión se distinguen la aplicación de leyes ilegales
y la aplicación ilegal de leyes. Si en el primer caso no es posible establecer
signos de abuso del derecho, entonces en el segundo caso es bastante
posible cientícamente hablando, lo cual es esencial para la calicación de
las acciones de los perpetradores.
Palabras clave: constitucionalización del derecho penal; responsabilidad
de los funcionarios públicos; responsabilidad del
Estado; abuso de la ley; delito ocial.
Introduction
Criminal law takes legal relations under its protection, which are
developing in almost all spheres of public life, both between citizens and
in the relationship between citizens and the state. Because of this, not only
cases of abuse of rights by citizens concerning other individuals and the
state fall into the sphere of criminal law response, but also cases when
representatives of the state abuse their rights in relations with citizens. This
refers to the abuse of ocial rights and duties, ocial status, the position
when a representative of the state acts in an ocial capacity. The criminal
law contains several articles describing such abuses, the most general
of which are Articles 285 and 286 of the Criminal Code of the Russian
Federation and which are supplemented by a signicant array of special
norms.
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Vol. 40 Nº 72 (2022): 813-822
1. Methods
The authors choose the comparison method as the main research
method. The method was chosen for the eective conduct and preparation
of the procedure for identifying the connection between abuse and the
classic violation of human rights by the state. This method is used when
comparing complex objects and phenomena that are described by a large
set of widely varying features.
When discussing the abuse of rights by civil servants, it is important
to pay attention to the existence of a close connection between such abuse
and the classic violation of human rights by the state. This connection,
however, does not mean that the phenomena are identical. We need both
a strictly dierentiated approach and a generalized assessment that takes
into account aspects of the state’s legal policy.
At least two problematic situations should be distinguished here.
The rst situation is the need to assess the actions of civil servants
who consistently implement such a state policy, which by its nature is
not legal and is aimed at depriving or restricting citizens of their rights
and freedoms. This policy itself, in principle, can be assessed as an abuse
of the law by the state – a legitimate use of the law in contradiction with
the intended purpose and meaning of the law to the detriment of human
interests. History contains enough examples in this regard, when ocials
formally fullling their ocial duty and implementing the prescriptions laid
down in normative acts, actually implemented a policy of legal restrictions
and repression. The behavior of ocials here is inseparable from the state
policy, is a necessary and consistent implementation of it.
The second situation is to assess the actions of state representatives to
abuse their ocial powers in conditions when such actions are at odds
with the content of the state’s legal policy. Remaining in the ocial status,
civil servants, abusing their ocial rights and duties, act in this case against
not only the interests of citizens but also the interests of the state. Their
behavior is very clearly distanced from the ocial political and legal course,
which goes against it.
These situations give rise to extremely dicult questions in political and
legal, constitutional, and criminal aspects about the responsibility of both
the state as such and its specic representatives.
2. Results
The common place of these dierent situations is the indispensable
responsibility of the state. It has a constitutional and legal nature
816
Olga Sergeevna Guzeeva
Abuse of the right by civil servants in the aspect of the basis of criminal liability
(Kolosova, 2006; Signatova, 2006; Kondrashov, 2011) and is meaningfully
expressed in political, nancial, civil, and other forms of sanctions – from
rehabilitation to compensation for moral damage. Signicant requirements
for such liability were established by the Constitutional Court of the Russian
Federation, which, in particular, concerning the problem of compensation
for harm, recognized:
- within the meaning of Art. 53 of the Constitution of the Russian
Federation, everyone shall have the right to state compensation for
damages caused by unlawful actions (inaction) of bodies of state authority
and their ocials, and it is obliged to compensate for harm associated with
the implementation of state activities in its various spheres, regardless of
the imposition of responsibility on specic state authorities or ocials and
regardless of the fault of these persons (Resolution of the constitutional court
of the Russian Federation No. 18-P, 1997; Resolution of the constitutional
court of the Russian Federation No. 38-P, 2019):
• The state assumes responsibility for the illegal actions of each
ocial or authority, including both the issuance of normative
acts, individual power orders, and actual actions (illegal, harmful
behavior) or inaction, in particular, the failure of a state body or
ocial to perform those actions related to the scope of their public-
legal (power) duties that they should have committed following
the law (Determination of the constitutional court of the Russian
Federation, 2009).
• The changes that have occurred in the organization of power, the
change in the legal nature and powers of the bodies exercising public
power, do not in themselves imply the deprivation of the citizen of
the right to compensation for harm, which, because of illegal actions
(inaction) of no longer existing authorities, has arisen for him/her
at present (Resolution of the constitutional court of the Russian
Federation No. 26-P, 2019).
Without going further into the study of the question of the responsibility
of the state itself (as obviously going beyond the scope of our topic), we
will pay attention to the problems that arise with the implementation of
the responsibility of its representatives acting as individuals. There are at
least two main ones: about the possibility of bringing ocials to criminal
responsibility and about the qualication of their actions, their separation
from an ordinary law enforcement error. They correlate with the situations
highlighted earlier, reecting the dierent relationship between the actions
of civil servants and ocial policy.
In the case when the criminal behavior of civil servants is a continuation
of the «criminal policy» of the state, a change in the political course always
raises the question of the possibility of bringing such persons to justice in
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CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 813-822
the updated political and legal conditions (Ledyakh, 1973; Kudryavtsev
and Trusov, 2002; Agilar, 2013). In Russian conditions, concerning the
change of the political and legal regime in the 90s of the last century, this
issue should be resolved based on Part 2 of Article 18 of the Law «On the
Rehabilitation of Victims of Political Repression», which stipulates:
employees of the Cheka, GPU-OGPU, NKVD, MSS, prosecutor’s oces,
judges, members of commissions, «special meetings», «twos», «threes»,
employees of other bodies that exercised judicial powers, persons who
participated in the investigation and consideration of cases, who were
found guilty of crimes against justice following the established procedure
on political repression, are criminally liable based on the current criminal
legislation (Federal law of the Russian Federation No. 1761-1, 1991).
Meanwhile, there are several legal obstacles to the implementation of
this order (including the doctrine of the execution of the order, the statute
of limitations for bringing to responsibility, compliance with the procedural
procedure for bringing certain categories of ocials to responsibility), and
most importantly, political properties. In a summary, the main factors
contributing to this, in our opinion, are as follows:
• In Russia, unlike, for example, post-war Germany, there were no
ocially established signs of crime and guilt in the behavior of the
state itself and it bodies in conducting illegal policies, we recognized
the presence of victims of repression, but their subject was not
established.
• The provisions of the Law “On the Rehabilitation of Victims of
Political Repression” allow only representatives of the judiciary and
executive authorities to be found guilty of repression, which does
not allow raising the question of the responsibility of representatives
of legislative bodies, public organizations, and political parties and
indirectly reects the recognition that the illegal nature was not
so much the state policy itself, as its implementation at the law
enforcement level.
• The country still largely retains the priority of a normative
understanding of the right and the identication of right with the law,
there is no developed doctrine of the application of the principles of
law, which generally removes the question of responsibility for the
application of non-legal regulations.
• There is a tendency not to touch on politically sensitive topics and
historical issues, the discussion, and solution of which can serve as
a factor in the destruction of social peace and harmony.
While legal factors can be considered relatively easy to overcome due to
changes in legislation and consistent compliance with the principles and
818
Olga Sergeevna Guzeeva
Abuse of the right by civil servants in the aspect of the basis of criminal liability
norms of international law, the latter requires political eorts, the exertion
of political will. As far as we can judge, the corresponding political campaign
has not been launched in Russia.
The Law of the Russian Federation «On the Rehabilitation of Victims of
Political Repression» (in the preamble) recognized that millions of people
had become victims of the arbitrariness of the totalitarian state during the
years of Soviet power and were subjected to repression for political and
religious beliefs, on social, national, and other grounds. The Constitutional
Court of the Russian Federation also stated that the regime of unlimited,
based on violence, power of a narrow group of communist functionaries
had been dominating in the country for a long time (Resolution of the
constitutional court of the Russian Federation No. 9-P., 1992).
Russia, as the legal successor of the USSR – «the state activities of
which are associated with the iniction of harm, by its nature representing
harm that is incalculable and irreparable», is obliged to strive for the fullest
possible compensation for such harm (Resolution of the constitutional
court of the Russian Federation No. 39-P, 2019). The forms and methods
of such compensation are determined by the said law. Therewith, it is
precisely compensatory measures, the restoration of violated rights, that
the state’s responsibility for political repression is limited, which is directly
prescribed by the purpose of the Law «On the Rehabilitation of Victims of
Political Repression», as it is xed in its preamble.
The practice of retroactive public-legal responsibility of state
representatives for the implementation of illegal policies in Russia has not
been developed, as clearly evidenced by the experience of the Commission
under the President of the Russian Federation on the rehabilitation of
victims of political repression.
Meanwhile, from the point of view of purely legal norms (both
constitutional and the Law «On the Rehabilitation of Victims of Political
Repression»), there are no obstacles to the realization of the responsibility
of the perpetrators (Bobrinskii, 2014, 2018). In the context of our topic, it is
worth noting that such responsibility cannot be entirely based on the concept
of abuse of law. Theoretically, it is important to distinguish between two
points: the application of illegal laws (for example, on responsibility for
anti-Soviet agitation and propaganda) and the illegal application of laws
(for example, a conviction for political reasons for state or other crimes).
The prerequisites for such a gradation are contained in Articles 3 and
5 of the law «On the rehabilitation of victims of political repression». If
in the rst case it is not possible to establish signs of abuse of the right in
the actions of law enforcement entities, then in the second case it is quite
permissible, which is essential for solving the important question of the
qualication of the actions of the perpetrators.
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CUESTIONES POLÍTICAS
Vol. 40 Nº 72 (2022): 813-822
Note that Article 18 of the Law «On the Rehabilitation of Victims of
Political Repression» refers to the responsibility of persons found guilty
– we quote – «of crimes against justice». Thus, in our opinion, the state
has ocially conrmed that from a legal point of view, it does not intend
to consider political repression as crimes of the state itself against human
rights and freedoms but allows for only the behavior of specic ocials
associated with the illegal application of laws to be assessed as crimes
against justice.
This circumstance (we will deliberately refrain from evaluating it)
in the concrete historical conditions of Russian reality largely erases the
dierences between the previously highlighted situations of dierentiated
participation of state representatives in the implementation of its political
course. It is formally proclaimed that the country’s legal policy at all times
corresponded to constitutional standards, while at the law enforcement
level, the behavior of individual ocials went beyond the law and was
illegal.
When assessing such behavior from the point of view of the criminal
law, the question of distinguishing between criminal abuse of law and error
necessarily arises. This issue was partly considered by the Constitutional
Court of the Russian Federation concerning the problem of judicial errors,
but it seems that its conclusions are general. The court recognized that the
federal legislator distinguishes two types of judicial errors. Firstly, when
carrying out judicial activities, there may be errors that do not discredit a
priori the persons who made them, which arise during the resolution of a
particular case when interpreting and applying the norms of substantive or
procedural law and are subject to correction by higher judicial instances.
Such unintentional judicial errors of an ordinary nature cannot be
regarded as a manifestation of an unfair attitude of a judge to his/her
professional duties and serve as a basis for applying penalties to him/her.
Secondly, a dierent type of judicial errors is possible, which are the result
of the incompetence or negligence of the judge, i.e., the unfair performance
of his/her function in the administration of justice, leading to a distortion
of the fundamental principles of judicial proceedings and a gross violation
of the rights of participants in the process.
In cases where the issuance of an unlawful judicial act due to such an
error does not fall under the signs of a crime, it can nevertheless indicate
either the obvious negligence of the judge, or his/her inability to perform
his/her professional duties, which is unacceptable in the administration of
justice, and therefore, be the basis for applying disciplinary measures to
him/her (Resolution of the constitutional court of the Russian Federation
No. 19-P, 2011).
820
Olga Sergeevna Guzeeva
Abuse of the right by civil servants in the aspect of the basis of criminal liability
These guilty mistakes, therefore, can be either non-criminal or criminal,
and in the latter case – either intentional or careless, which directly aects
the qualication of the actions of the guilty person (in particular, the
application of Article 305 of the Criminal Code of the Russian Federation
or Article 293 of the Criminal Code of the Russian Federation).
Conclusion
Authors conclude that it is intentional mistakes, which, due to their
intentional nature, are poorly associated with the etymological concept of
error, and should be considered as a manifestation of abuse of the law by the
law enforcement ocer, since there is a conscious use of the opportunities
provided to him/her against the interests of law, distortion of law and
distortion of justice.
Abuse of law by public servants may be a reection of the anti-legal
policy of the state, and in this case, the interests of law require both the
responsibility of the state itself, as well as the responsibility of ocials
whose behavior, not justied by the concept of executing an order cannot
be evaluated from the standpoint of abuse of law; the behavior of ocials
may not be related to legal policy, and in this case, it is the abuse of law as
a deliberate and incorrect application of law that serves as the basis for the
responsibility of the perpetrators.
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www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
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