Issues of Proving the Motives for Official Misconduct

Abstract

The author analyzes the flexibility of the lawmakers attitude to the regulation of the subjective side of public office offences in the corresponding Articles of the Special Part of the RF Criminal Code when determining internal incentives - motives driving the criminal behavior of people: in some cases, their attitude is neutral, in others there are various degrees of specification, and sometimes they use concepts that are similar in their meanings. In both legal theory and the practice of law enforcement, this results in different approaches to understanding the significance of this element in the system of criminal activitys mechanism, and its role not only for crime qualification, but also to proving. As a result, such controversy leads to a lack of a unified position regarding the interpretation and application of norms, and contributes to conflicts in the practice of judicial investigation. The author presents arguments to criticize the position according to which motives or other internal incentives should be eliminated from the necessary elements of the analyzed crimes and believes that the existing approach makes proving harder. The author points out that if the lawmakers do not consider it necessary to include motives or other similar concepts (goals, interests, incentives) necessary for qualification in the criminal law norm, it does not relieve the law enforcement bodies from the obligation to establish this element in illicit activities, since the necessity of proving the subjective side of an action is directly provided for in the norm of Art. 73 of the RF Criminal Procedure Code which regulates the universal facts to be proven. Moreover, regardless of how the criminal law determines motives and goals of the person with managerial functions, even if they are not relevant for qualification, the identification of precise criminal motivation is always key to incriminating a person and establishing all the circumstances of the infringement, including measures undertaken to conceal criminal activities, group and (or) multi-episode activities, etc. At the same time, the analysis of empirical sources allowed the author to conclude that persons responsible for proving proof do not pay sufficient attention to establishing the motives of criminal actions, especially if they are not obvious. The author presents recommendations on filling the existing gaps, including a more precise psychological description of people guilty of official misconduct using the possibilities presented by modern forensic psychological examination that could help determine the motives of the people who use their official powers against the interests of their service.