If you getted enlarged after declaration for anywhere

The Pechersk District Court in Kyiv is hearing a court case № 757/8312/19-n concerning bringing one of the clients of JSB “Prikhodko and Partners” to administrative responsibility under Art. 172-6 of the Code of Administrative Offenses, on the basis of the protocol on administrative offense № 44-01 / 81/19 (hereinafter - protocol № 44-01 / 81/19), drawn up by the chief specialist of the department of control over the timeliness of declarations of the Department of declaration verification and lifestyle monitoring - authorized person of the National Agency for the Prevention of Corruption (hereinafter - NAPC).

Thus, on August 5, 2016, the person was dismissed from the position of Chief Specialist of the Kyiv Regional State Administration at his own request on the basis of a written application. On November 29, 2018, he received a notification about the fact of failure to submit a declaration after the dismissal of a person authorized to perform the functions of the state or local self-government. To comply with the requirements of the NAPC, the person filed a declaration on December 8, 2018 after dismissal, ie the ten-day period established by the notification. On February 13, 2019, a report on an administrative offense was drawn up against the person № 44-01 / 81/19. At the same time, the proceedings against Rudyak IS subject to closure in view of the following.

 

The client of JSB “Prikhodko and Partners” is prosecuted under Part 1 of Article 172-6 of the Code of Administrative Offenses in connection with late submission of a declaration after termination of activities in accordance with paragraph 2 of Part 2 of Article 45 of the Law of Ukraine "On Prevention of Corruption". The specified normative legal act does not provide for deadlines for submission of such a declaration. 

In this situation, it is necessary to take into account the position of the Supreme Court of Ukraine, set out in the Information Letter "On bringing to administrative responsibility for certain offenses related to corruption" from 22.05.2017: "Yes, to qualify the act under Part 1 of Art. 172-6 of the Code of Administrative Offenses, it is necessary to establish the late submission of the declaration, ie submission outside the period specified by law. Note that in Part 1 of Art. 45 of the Law defines the deadline (time limits) when authorized persons are required to submit a declaration, in particular, the wording "annually until April 1". However, in the cases provided for in Part 2 of Art. 45 of the Law, ie in case of termination of activity, this term is not defined at all.

 

Support and reference to this position by the courts can be observed in cases of refusal to prosecute under Part 1 of Article 172-6 of the Code of Administrative Offenses and closure of proceedings due to lack of administrative offense, in particular in the decisions of the Kyiv Court of Appeal of 16.11. 2018 in case № 364/820/18; Court of Appeal of Luhansk region from 12.02.2018 in the case № 428/11936/17; Court of Appeal of Ivano-Frankivsk region dated 22.09.2017 in case № 344/9125/17; Slavyansk City District Court dated 13.06.2018 in case № 243/3578/18; Bolgrad District Court of March 12, 2018 in case № 497/62/18; Prydniprovsky District Court of Cherkasy dated 14.09.2018 in case № 707/1330/18; Kirov district court of Kirovograd from 02.04.2018 in the case № 397/197/18; Prydniprovsky District Court Cherkasy dated 26.06.2017 in case № 711/3356/17; Pervomaisky City District Court from 07/19/2018 in the case № 632/827/18 and others.

 

The Convention for the Protection of Human Rights and Fundamental Freedoms  and its Protocols are part of the national legislation of Ukraine, in accordance with  Article 9 of the Constitution of Ukraine , as a valid international treaty, approved by the Verkhovna Rada of Ukraine. Article 17 of the Law of Ukraine “On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights” provides for the application by courts of the Convention and the case law of the European Court of Human Rights as a source of law.

According to the principle of "beyond reasonable doubt", the content of which is formulated in paragraph 43 of the judgment of the European Court of Human Rights of the European Court of Human Rights in the case of Kobets v. Ukraine of 14 February 2008, the proof must be sufficient weighty, clear and consistent with each other, and in the absence of such signs it cannot be stated that the guilt of the accused has been proved "beyond a reasonable doubt". Cases of administrative offenses are criminal for the purposes of applying the Convention, as stated in the judgments of the European Court of Human Rights "Ezturk v. Germany", "Lauko v. Slovakia", "Rybka v. Ukraine".

The judgment of the European Court of Human Rights of 14 October 2010 in Shchokin v. Ukraine defined the concept of the quality of the law, in particular by requiring it to be accessible to interested parties, clear and predictable in its application. The lack of the necessary clarity and accuracy in national legislation violates the requirement of "quality of law". Where national law provides for ambiguous or multiple interpretations of the rights and obligations of individuals, national authorities are obliged to take the most favorable approach for individuals. That is, the resolution of conflicts in the law is always interpreted in favor of the person.

The objective aspect of the administrative offense provided for in part 1 of Article 172-6 of the Code of Administrative Offenses is the intentional late submission of the declaration of a person authorized to perform the functions of the state or local self-government. The lateness of the submission means the omission of the deadlines for the submission of the declaration provided for in Article 45 of the Law of Ukraine "On Prevention of Corruption".

 

Thus, in the action of the client JSB "Prikhodko and Partners" there is no objective side of the administrative offense, which in turn indicates the absence of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses. In view of the above, the proceedings in the case of an administrative offense against Rudyak IS under Part 1 of Article 172-6 of the Code of Administrative Offenses is subject to closure due to the absence of the event and the composition of the administrative offense (paragraph 1 of Part 1 of Article 247 of the Code of Administrative Offenses).