MOMENT OF EXPRESSION OF CORRUPTION LAW
In the Synthesis of the case law of courts for corruption cases in the case of violations in 2015 and the first half of 2016, courts must determine the time of commission of the offense and the moment of detection of the offense. This assertion is due to the fact that the legislative acts do not foresee what exactly should be considered as the moment of detection of a corruption offense.
Also, according to the letter of the High Specialized Court of Ukraine on consideration of civil and criminal cases “Regarding the prosecution of certain corruption-related offenses”, it is stated that in order to determine the commencement of the limitation period for bringing a person to administrative liability for an administrative offense, An important role is played by both the day of commission and the day when the offense is detected.
The NACC has developed a practice according to which the actual moment of detection of an offense should be considered as the date of clarification of all necessary data and drawing up a protocol on an administrative offense.
In accordance with paragraph 2 of Section 2 of the Procedure for conducting control and full verification of the declaration of the person authorized to perform the functions of the state or local self-government, the NACC controls the timeliness of submission of declarations based, in particular, on the fact of non-submission or untimely submission of the declaration by the subject of declaration by the National Agency according to the Register data. It was on this basis that the untimely submission of the declaration was detected by one of the clients of JSB “Prykhodko and Partners”, the chief specialist of the department for monitoring the timely submission of declarations by the Department of Declaration Verification and LPD Lifestyle Monitoring.
Further analysis of the protocol provides grounds for saying that: “A person filed a declaration only after having informed the NACC by letters dated November 29, 2018, No. 44-01 / 57729/18 and No. 44-01 / 57730/18 on the fact that this declaration was not submitted.” Thus, based on the analysis of the protocol, we conclude that the NACC became aware of the fact that the declaration was not submitted no later than the date of the person’s notification of non-submission of the declaration, as evidenced by the date of the original correspondence in the above-mentioned letters contained in the materials of the case.
It is precisely this position that follows the jurisprudence, in cases of bringing to administrative liability under Article 172-6 of the Code of Administrative Offenses, in particular:
The Ustinovsky District Court in its ruling of 29.01.2019 in the case No. 403/375/18 stated: “The judge found that the fact of detecting an administrative offense committed with corruption was preceded by the compilation of the protocol No. 106/18 dated 07/06/2018, and therefore the information contained therein, as to the date of detection of the offense (07/06/2018), is refuted by evidence attached to the protocol.
Ternopil city district court in the resolution of 02/13/2019 on the case No. 607/26355/18 stated: “The actual point of detection of the committed OSOBA_1 administrative offenses committed with corruption provided for in Part 1 of Art. 172-6 KUpAP, is October 26, 2018, which is confirmed by the stamp of incoming correspondence, which is contained in the report of the Department for the verification of declarations and monitoring the lifestyle of the NACC. Thus, the Court emphasizes that the moment of actual detection of an administrative offense, OSOBA_1, can not be the date of the compilation of administrative protocols. “
Ustinovsky district court in the resolution of 01.02.2019 in the case number 403/489/18 stated: “The fact of the detection of an administrative offense related to corruption, preceded the drafting of the protocol number 163/18 dated 27.07.2018, and therefore the information set out in it, the date of detection of the offense (27.07.2018) is refuted by the evidence added to the protocol. “
Skvyra district court in the decree of January 5, 2017 on the case No. 376/2755/17 stated: “The court considers that the actual moment of the police officers detecting the committed OSOA_4 offense is the date of drawing up a report of the responsible person on the offense found on July 24, 2017, rather than the date of the assembly and signing the protocol on September 25, 2017 “.
The Appeal Court of the Kyiv region in its resolution of 29.01.2018 № 379/1255/17 stated: “The conclusion of the court of first instance that the moment of detection of the said offense should be taken into account in the report of the Operational Commission on Combating Crimes of 20.07.2017, the Court of Appeal considers correct, since, as can be seen from the contents of the report, a police officer specifically states that OSOBA_2, being the subject of responsibility for corruption offenses, committed an administrative offense, as provided for in Part 4 of Art. 172-6 KUpAP. At the same time, the report specifies the specific circumstances of the commission of the said offense “.
Solomyansky District Court of Kyiv in its ruling of 08.02.2019 in the case No. 760/187/19 stated: “However, the court with the conclusion Nazak not agree, as it is seen from the report of the National Agency about the fact of non-submission or late submission of declarations persons authorized to perform functions of the state or local government number 07/29165/18 dated June 27, 2018, it is seen that the fact of late submission of the OSOBA_1 declaration was detected as of June 27, 2018. Consequently, the court considers the date of detection of administrative violations as of 27/06/2018, that is, the date of sending the message. “
Thus, it can be said about the established practice of the courts that the moment of detection of an offense provided for in clause 1 of Article 172-6 of the Code of Criminal Procedure is not the date of the protocol, but the date when the authorized entity learned about the fact that the relevant declaration was not submitted, that is, the sending notification in the order of part 3 of Article 49 of the Law of Ukraine “On Prevention of Corruption”.
In accordance with Article 38 (3) of the CUAAP, an administrative penalty for committing an offense related to corruption may be imposed within three months from the date of its detection, but not later than two years from the date of its commission. Clause 7 of Article 247 of the Code of Administrative Offenses provides that the proceedings in an administrative offense are to be closed if, at the time of the trial, the term provided for in Article 38 of the Code of Administrative Offenses is terminated.
According to the resolution of the Plenum of the Supreme Court “On the practice of considering cases of corruption cases and other corruption-related offenses” No. 13 for timely, comprehensive, complete and objective investigation of the circumstances of the case, it is necessary to pay attention to explanations in each case such issues, in particular, whether the time periods stipulated in Art. 38 KUpAP.
Since the actual moment of the detection of an offense committed by a client of the Bank “Prykhodko and Partners” under part 1 of Article 176-2 of the KUpAP is 29.11.2018 (the date of sending the notification about the fact of non-submission of the declaration), as of April 2, 2019, the period of three months from the date of its disclosure in the meaning of Article 38 KUpAP, and therefore the proceedings are subject to closure in connection with the expiration of the time limits for imposing administrative penalties.
In addition, in accordance with paragraph 3 of the Opinion of the Scientific Advisory Board of the Supreme Administrative Court of Ukraine “Concerning the establishment of the fault of a person during the closure of proceedings on administrative violations in connection with the expiration of the deadlines for bringing administrative liability”, during the closure of proceedings in administrative cases the offense in connection with the expiration of the deadline for bringing to administrative responsibility, provided for in Article 38 of the Code of Administrative Offenses, the fault of the person is not established.
By joint authorship of Andrei Prikhodko and Ivan Ishchuk