Crime Provocation under the Criminal Law of Neighboring

Countries (on the Example of Provocation of Bribery)

Eleonora Iurevna Badaliants

and Elena V. Mitskaya

Department of Criminal Law and Criminology,

Ryazan Branch of the Kikot Moscow University of the Ministry of Internal

Affairs of the Russian Federation, Ryazan, Russian Federation

Department of Criminal Law and Criminal Procedure of M. Auezov South Kazakhstan University, Shymkent, Republic of

Kazakhstan

Keywords: Criminal law, provocation, crime, bribery, foreign countries.

Abstract: The article addresses current issues related to the problem of criminal responsibility for provocation of bribery,

analyzes the experience of the neighboring countries in this area, and identifies the main approaches of states

to the criminalization of provocation of bribery. The aim of the article is to study the institute of provocation

in the criminal law of the neighboring countries; tasks are to consider the activities carried out within the

framework of law enforcement intelligence operations as a crime provocation. The significance of the study

is justified by the author taking into account the experience of a number of neighboring countries – the need

to improve article 304 of the Criminal Code and the determination of criminal responsibility for crime

provocations, including provocation of bribery.

1 INTRODUCTION

Modern domestic researchers expose the issue of

provocations in the activities of law enforcement

agencies of Russia and foreign countries to a fairly

active scientific analysis. At the beginning of the XXI

century, there was a number of thesis researches,

where particular attention was paid to the conceptual

approaches of foreign countries to the legal

assessment of provocations. As an example of such

researches are works by S.A. Babych (2006), S.N.

Radachinsky (2011), S.A. Sandakovsky (2010), etc.

Despite the indisputable value of all previously

presented scientific research in the field of criminal

law aspects of crime provocation, we must admit that

currently there is no separate scientific study devoted

to the analysis of the modern experience of foreign

countries in the regulation of criminal responsibility

for provocative activities. The above confirms the

relevance of the topic of this publication, which aims

at encouraging the modern scientific community to a

more in-depth study of the criminal legislation of

foreign countries in general, and of the neighboring

countries in particular.

2 MATERIALS AND METHODS

Materials for the study were the criminal legislation

of several CIS states. In addition, scientific literature

of both Russian and foreign authors was used. The

methodological basis of this analysis is represented

by the universal dialectical method of scientific

cognition. General and private scientific methods

were applied in a complex manner, among which the

most actively used is a comparative legal method of

research.

3 RESULTS AND DISCUSSION

The development of domestic legislation aimed at the

effective regulation of various areas of social

relations largely depends on the knowledge and

objective assessment of not only the history of

domestic experience of legal regulation, but also the

experience of foreign countries in a particular area.

The criminal-legal sphere is not an exception in this

sense. Modern states equally define many socially

dangerous acts as criminal, establishing criminal

responsibility for their commitment (murder, terrorist

acts, rape, theft, etc.). At the same time, a number of

acts do not have such an unambiguous assessment

Badaliants, E. and Mitskaya, E.

Crime Provocation under the Criminal Law of Neighboring Countries (on the Example of Provocation of Bribery).

DOI: 10.5220/0010636300003152

In Proceedings of the VII International Scientiﬁc-Practical Conference “Criminal Law and Operative Search Activities: Problems of Legislation, Science and Practice” (CLOSA 2021), pages

325-328

ISBN: 978-989-758-532-6; ISSN: 2184-9854

325

(Husak, 2020). Rather different and sometimes

opposite approaches are demonstrated by countries

with regard to provocation to commit crimes (Katz,

2013), including provocation of bribery. First of all,

we should note that provocation of bribery is

recognized in Russia as a criminal act and is qualified

under Article 304 of the Criminal Code of the Russian

Federation.

Certain neighboring countries are largely similar

in their approaches to the definition of bribery as a

criminal offence, which can be explained by the

existence of a long historical period of common legal

space. At the same time, the national approach of each

state has its own differences, which are expressed,

according to A.E. Ayusinov, "in the following

features: the name of the article, its location in the

criminal law, the types and amounts of penalty, etc."

(A. Ayusinov, 2015). The comparison of Article 304

of the Criminal Code of the Russian Federation and

Article 199 of the Criminal Code of Turkmenistan

can be a vivid confirmation of this feature. Both

norms imply a responsibility for provocation of

bribery and refer to crimes against justice, but there

are differences in sanctions. The maximum possible

penalty under Article 199 of the Criminal Code of

Turkmenistan is three years' imprisonment, and under

Article 304 of the Criminal Code of the Russian

Federation – up to five years' imprisonment.

Article 396 of the Criminal Code of the Republic

of Belarus is almost identical to the Russian criminal

law in formulating the disposition of this norm, but

there is a significant difference in the concepts used.

An attempt to transfer money, securities, other

property or the provision of services of a property

nature, the provision of other property rights to an

official without his consent in order to create artificial

evidence of a crime or blackmail is defined in Russia

as a provocation of bribery (Article 304 of the

Criminal Code), while the same actions under Article

396 of the Criminal Code of the Republic of Belarus

are referred to as staging a bribe. There is no need to

speak about the difficulties of translation here, since

Belarusian and Russian are recognized as official

languages on the constitutional level in Belarus

(Article 17 of the Constitution of the Republic of

Belarus), and the Russian version of the Criminal

Code of the Republic of Belarus uses the word

"staging" in the title of Article 396. According to S. I.

Ozhegov's Explanatory Dictionary, "staging" is

defined as "to feign" (Ozhegov, 2015). Given this

interpretation, we can say that staging a bribe is a

sham representation of the fact that a bribe was

received. Such wording does not seem to correspond

to the content of the disposition of Article 396 of the

Criminal Code of the Republic of Belarus, as it

characterizes not the actions of the offender who

provokes a bribe, but the actions of the official who

fakes, pretends to receive a bribe. In this regard, it

seems that the use of the word "provocation" in the

domestic criminal legislation to denote the analyzed

criminal act is more optimal, which accurately

reflects the essence of the crime, compared with the

way the Belarusian legislator did it by including the

word "staging" in the title of Article 396 of the

Criminal Code of the Republic of Belarus.

In Kyrgyzstan, provocation of bribery is qualified

under Article 343 of the Criminal Code of the Kyrgyz

Republic. This norm contains clarifications as to what

cannot be classified as a criminal provocation of

bribery:

 Provocation of bribery, if it is carried out as part

of checking an official for corrupt

predisposition (see note to Article 343 of the

Criminal Code of the Kyrgyz Republic). The

prerequisite for such a check is the consent of

the official to carry it out;

 According to the note to Article 343 of the

Criminal Code of the Kyrgyz Republic, the

actions of law enforcement agencies aimed at

exposing an official who already had the

intention to receive a bribe are not considered

as provocation of bribery. This exception

largely agrees with the Russian concept of the

admissibility of a number of operational

measures to expose a person when he/she has

already formed the intent to commit an illegal

act (Bykov, Zenin, Kudryashov, 2018).

According to I. Zharkikh, among the main

criteria for distinguishing legitimate law

enforcement intelligence operations from the

crime provocation, the following should be

noted: the presence of legal grounds for

conducting law enforcement intelligence

operations; the presence of the person's

intention to commit a crime, which is formed

regardless of the activities of law enforcement

officers; the lack of pressure from law

enforcement officers, forcing the person to

commit a crime (Zharkikh, 2021).

The criminal legislation of Ukraine defines

responsibility for provocation of bribery. S.A.

Sandakovsky draws attention to the fact that the

corpus delicti under Article 370 of the Criminal Code

of Ukraine consists of actions provoking not only

taking bribe, but also giving bribe (Sandakovsky,

2010). The noted feature is essential, but in our

opinion, more attention should be paid to part. 2 of

Article 370 of the Criminal Code of Ukraine, which

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provides for responsibility for provocation of bribery

committed by a law enforcement official.

Each state entrusts law enforcement officers with

sufficiently large powers, allowing them to solve the

problems of protecting citizens, protecting law and

order, and ensuring public safety. Providing law

enforcement officers with a special competence, on

the one hand, is of utmost importance for the state and

society, and on the other hand, causes a large part of

the population a special perception of a person being

a member of the circle of law enforcement officers

(from trust and respect to awe and fear). Benefiting

by a law enforcement officer from his "special"

position should be appropriately reflected in the

current criminal legislation, including in terms of

responsibility for provocation of bribery. In this

regard, the experience of Ukraine seems to be useful

for Russia. In addition, it seems that Article 304 must

be amended by part 2, which should stipulate the

responsibility of law enforcement officers for the acts

referred to in the disposition of part 1 of art. 304 of

the Criminal Code of the Russian Federation.

As an explanation of the above, we believe it is

important to note that under part 2 of article 304 of

the Criminal Code of the Russian Federation, it is

proposed to qualify those provocative actions that law

enforcement officers carry out on their own initiative

and that in no way connected with the investigation

of a particular criminal case; with the conduct of

operational procedures, which do not contain the

corpus delicti of abuse of power. The status of a law

enforcement officer itself imposes on a citizen a

special responsibility and provocative activities of

persons with this status should entail a greater degree

of punishment.

If we compare the sanctions of Part 1 of Article

370 of the Criminal Code of Ukraine and Article 304

of the Criminal Code of the Russian Federation, we

can state the coincidence in the determination of the

maximum punishment: five years of imprisonment.

The maximum possible punishment for provocation

of bribery by a law enforcement official, according to

the sanction of Part 2 of Article 307 of the Criminal

Code of Ukraine is seven years of imprisonment. We

consider it possible to determine a similar maximum

in the sanction of the proposed Part 2 of Article 304

of the Criminal Code of the Russian Federation.

Certain neighboring countries take a broader

approach to the criminal legal assessment of

provocation. Unlike Russia, Belarus, Ukraine and a

number of other countries, whose criminal legislation

contains a separate article regulating responsibility

for provocation of bribery, in some countries

provocation of any crime is regarded as a criminal

offense. For example, in 2018, Article 145 of the

Criminal Code of Georgia was enacted, determining

the responsibility for crime provocation, which means

inducing another person to commit a crime in order

to bring him to criminal responsibility. This offence

under Georgian criminal law refers to crimes

infringing on human rights and freedoms (Chapter

XXIII of the Criminal Code of Georgia). The position

of Georgia seems reasonable and to be aimed at

protecting a citizen from the illegal actions of others

who deliberately provoke a person to commit a

socially dangerous criminal act. Georgia's conceptual

approach in the considered aspect requires additional

scientific research and analysis of law enforcement

practice, on the basis of which we can subsequently

make a conclusion about the prospects of its use in

Russia.

A.R. Avunts notes that crime provocation "is far

from being prohibited by the criminal code in all

countries under pain of punishment" (Avunts, 2021).

For example, in Azerbaijan and Uzbekistan, crime

provocation is not a criminal act. Let us pay attention

to one point mentioned in Article 37 of the Criminal

Code of the Republic of Uzbekistan, stating that the

intentional provocation of an assault with the purpose

to inflict harm is not a necessary defense. The

Supreme Court of the Republic of Uzbekistan

explains this provision as follows: "the Courts shall

bear in mind that a person who provoked an assault

cannot be recognized as being in a state of necessary

defense to use it as a pretext for inflicting harm

(unleashing a fight, committing reprisals, committing

an act of revenge, etc.). Acts committed in such cases

should be qualified on general grounds" (paragraph 3

of the Resolution of the Plenum of the Supreme Court

of the Republic of Uzbekistan of December 20, 1996,

No. 39 "On application by the Courts of the

legislation ensuring the right to necessary defense

against socially dangerous infringements").

4 CONCLUSIONS

As a result of a brief analysis of the criminal

legislation of neighboring countries regarding the

determination of responsibility for provocation of

bribery, the following groups of approaches can be

presented:

 States where provocation of bribery is

considered an independent criminal offence,

but there may be differences in the wording of

the titles and dispositions of the norms, as well

as in the presence of qualifying features

Crime Provocation under the Criminal Law of Neighboring Countries (on the Example of Provocation of Bribery)

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(Belarus, Kyrgyzstan, Russia, Turkmenistan,

Ukraine, etc.);

 States whose criminal legislation demonstrates

a broad approach: provocation of any crime, not

just provocation of bribery, is considered as a

criminal offence (Georgia);

 States not considering provocation as a criminal

offence (Azerbaijan, Uzbekistan).

The multiplicity of approaches shows that there is

no general attitude towards this criminal phenomenon

in the world practice, but most of the neighboring

countries, with few exceptions, agree on the need to

determine criminal responsibility for crime

provocations, including provocation of bribery.

REFERENCES

Avunts, A. R., 2021. The criminal law significance of crime

provocation in the law of foreign countries. In Gaps in

the Russian legislation. 3. pp. 291-293.

Ayusinov, A.E., 2015. Peculiarities of the regulation of

criminal responsibility for crime provocation under

foreign legislation. In Bulletin of the Saratov State Law

Academy. 6. pp. 148-153.

Babych, S.A., 2006. Provocation of bribery or commercial

bribery: thesis. p. 215.

Zharkikh, I., 2021. Urgent questions of delineating law

enforcement intelligence operations and crime

provocation. In Criminal Law. 2. pp. 19-24.

Ozhegov, S.I., 2015. Explanatory Dictionary of the Russian

Language. World and education. p. 1375.

Radachinsky, S.N., 2011. Crime provocation as a complex

institute of criminal law: problems of theory and

practice. p. 367.

Sandakovsky, S.A., 2010. Criminal law assessment of

provocation of bribery. p. 187.

Katz, L., 2013. Entrapment Through the Lens of the Actio

Libera in Causa. In Criminal Law, Philosophy. 7. pp.

587–595.

Husak, D., 2020. Criminal Law at the Margins. In Criminal

Law, Philosophy. 14. pp. 381–393.

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ACTIVITIES: PROBLEMS OF LEGISLATION, SCIENCE AND PRACTICE”

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