HOW TO WITHDRAW THE RESPONSIBILITY FOR CORRUPTION OF ADMINISTRATIVE INFRINGEMENT BY LAW?
Recently, the work of anti-corruption institutions of our state has intensified, which in turn led to an increase in the number of prosecuted for corruption and corruption-related offenses. One such body authorized to compile protocols on corruption offenses is the National Agency for the Prevention of Corruption. At the same time, in the conditions of the existence of “plans” of each law enforcement agency, the number of complicated administrative materials for civil servants increases.
This situation contributes to the NACC’s approval of a significant number of procedural violations that can only be detected by lawyers. In such circumstances, Clients of the Prikhodko & Partners Law Firm often ask questions, including how to properly represent interests in the NSC, how to cancel the protocol on corruption administrative offenses, to close a corrupt case, to identify the disadvantages of the NSC protocol, how to properly file a declaration, why submit a notice about significant changes in property status, etc.
Recently, lawyers of “Prykhodko and Partners” received uncontested victory and the court closed a case on charges of a civil servant of rank 1 in the absence of the offense stipulated in Part 2 of Art. 172-6 KUpAP (late notification of significant changes in property status). The main argument of lawyers was that the income to calculate a significant change should be taken not actually charged, but with the deduction of taxes.
It should be noted that the NACC wrongly overestimates the taxpayer’s income from the amount of taxes and fees that the subject of the declaration did not actually receive and artificially creates, in violation of the legislation on the prevention of corruption and the application of legislation of a completely different sectoral legislation (that is, by manipulating the law) signs of the offense provided for in Part 2 of Art. 172-6 KUpAP.
Part 2 of Article 52 of the relevant Law of Ukraine “On Prevention of Corruption”, under the substantial change in the property status of the subject of the declaration, understands: “… receiving income from them, purchasing property for an amount exceeding 50 subsistence minimum …”. The NAC identifies this process with a completely different legally significant action – submission of a declaration of income. Thus, in item 7, part 1 of the article. 46 of the Law of Ukraine “On Prevention of Corruption” states: “The declaration shall contain information …. 7) about received (accrued) incomes, including income in the form of wages … “.
In this context, it should be noted that the terms “income generation” and “accrued income” are different in their essence and meaning. Thus, the interpretive dictionary of the Ukrainian language under the word “receive” understands: “to get into the hands of earnings, remuneration, etc.” (Dictionary of the Ukrainian language: in volumes 11 – Volume 5, 1974. – P. 625), and under the word “charge” – “Counting, determine the number, number of someone, something”.
The Law of Ukraine “On Prevention of Corruption” does not contain the definition of “income”. However, it is clear from its text that the Law contains two different approaches to the concept of “income”, depending on where and how it is displayed: 1) in the annual declaration; or 2) in the notice of significant changes in the property status.
The European Court of Human Rights, the practice of which is the source of the law of Ukraine, has repeatedly drawn attention to the imperfection of the current legislation of Ukraine and the need to adhere to the principle of legal certainty. In particular, the ECHR expresses in particular the decisions of “Eloev v. Ukraine” of November 6, 2008, “Feldman v. Ukraine” of April 8, 2010, “Kharchenko v. Ukraine” of February 10, 2011, etc.
The judgment of the European Court of Human Rights dated October 14, 2010, in the case of “Shokin v. Ukraine”, defined the concept of the quality of the law, with the requirement that it be accessible to interested persons, clear and predictable in its application. The lack of necessary clarity and precision in national legislation, which provided for the possibility of different interpretations of such a question, violates the requirement of “quality of law”. In the event that national legislation has led to ambiguous or multiple interpretations of the rights and obligations of individuals, national authorities are required to apply the most favorable approach to individuals. That is, the resolution of conflicts in the legislation is always interpreted in favor of a person.
From the above it is possible to conclude that when calculating the amount for reporting significant changes in property status, it is necessary to take into account the funds that were credited to the card of the subject of declaration, and when submitting a declaration – funds accrued to the entity of declaration.
A similar position is observed in judicial practice when closing proceedings under Part 2 of Art. 172-6 KUpAP in connection with the absence of the offense, regarding the need to take into account the actual income received on the card, in particular:
– Okhtyrsky city court of the Sumy region by a resolution dated November 27, 2018 in the case No. 591/6386/18 noted: “In addition, the court also notes that OSOBA_1 actually received UAH 67803.08 on its card salary account, which does not exceed 50 subsistence minimum fixed for able-bodied persons as of January 1, 2017. The indicated incomes are reflected in the declaration for 2017 “;
– The Romensky City Court of the Sumy Oblast by a decree dated December 3, 2018 in case No. 591/6540/18 stated: “In addition, the court also notes that OSOBA_2 actually received funds in its card salary account in the amount of 74 143 UAH. 56 kopecks, which does not exceed 50 subsistence minimum, established for able-bodied persons as of January 1, 2018 “;
– Okhtyrsky city court of the Sumy region by a decree of December 21, 2018 in case number 583/5024/18 noted: “In addition, the court also notes that OSOBA_1 actually received funds in the card salary account in the amount of 71662.48 UAH, which does not exceed 50 subsistence minimum established for able-bodied persons as of January 1, 2018 “.
Author: Ivan Ishuk