WHAT TO DO WHEN DIRECTLY DRUGS?
Recently, the National Agency for the Prevention of Corruption has stepped up its activities, including checking: income declaration 2017 (electronic declaration 2018), income declaration 2018 (electronic declaration 2018), electronic declaration 2019 One word each income statement of a public servant is presented for last 3 years.
The most common violation that NACP workers manifest is a violation of the deadlines for filing electronic declarations, as a result of drawing up a protocol on corruption. However, it must be remembered that the decision to prosecute does not take the NACP, and the court.
Therefore, in case of detection of a corruption offense, the list of which is provided for in Chapter 13-A of the Code of Ukraine on Administrative Offenses, we recommend contacting a specialist in the protection of corruption offenses, among which, in particular:
Article 172-4. Violation of restrictions on combining and combining with other activities
Article 172-5. Violation of statutory restrictions on the receipt of gifts
Article 172-6. Violation of financial control requirements
Article 172-7. Violation of requirements to prevent and resolve conflicts of interest
Article 172-8. Illegal use of information that has become known to a person in connection with the performance of official or other powers determined by law
Article 172-9. Failure to take action against corruption
Article 172-9-1. Violation of the ban on sports betting associated with the manipulation of official sports competition
Article 172-9-2. Violation of legislation in the field of environmental impact assessment
The most common is the practice of drawing up protocols under art. 172-6 КУоАП, the comment which application now is not written at all that causes certain difficulties at application by protection by the lawyer concerning corruption.
The Code of Ukraine on Administrative Offenses provides for a list of administrative offenses related to corruption, but in this article we will focus only on the analysis of the grounds for appealing the administrative offense protocol for violation of financial control requirements, which consisted in the late submission without valid reasons of a declaration by a person authorized to functions of the state or local government (art. 172-6 КУоАП).
In this case, the legislator establishes the absence of valid reasons for the late submission of the declaration as a fundamental element of the offense. Thus, for good reason, they understand the inability of a person to file a declaration on time due to illness, a person being treated, as a result of a natural disaster (floods, fires, earthquakes), technical failures of the official website of the National Agency for the Prevention of Corruption, declaration, stay (custody) and the like.
At the same time, an administrative penalty for committing an administrative offense related to corruption may be imposed within three months from the date of detection, but not later than two years from the date of its commission (part 3 of article 38 of the Administrative Code). The law does not provide for the continuation of the timing of the imposition of administrative penalties, therefore, in the event of their termination of proceedings, the case is subject to closure. If, at the time of consideration of the case in court, the terms of bringing the person to administrative responsibility have expired, then the court, in case of objection by the person of his guilt or presence of an administrative offense in his actions, should investigate all the circumstances of the case, determine whether the act contains signs and composition of an administrative offense the person also belongs to the subjects of this offense, she is guilty of its commission, and only after that the proceedings are closed.
It should be noted that the legislation also does not provide for how long after the identification of an administrative offense related to corruption, the authorized entity must draw up a protocol.
If, when deciding on the drafting of a protocol on an administrative offense related to corruption, a person resigns, at his own request, from a position related to the performance of state or local government functions, he cannot be dismissed due to administrative liability.
In accordance with Art. 277 КУоАП the case of an administrative corruption offense is considered within fifteen days from the date of receipt by the court of the protocol on administrative violation and other materials of the case. This period stops the court if the person in respect of whom a protocol on administrative corruption offenses is drawn up, deliberately avoids to appear in court or for valid reasons cannot appear (illness, stay on a business trip or on treatment, on vacation, etc. .). However, the legislator did not specify, and the term for imposing an administrative penalty is also stopped.
Part 2 of Art. 268 КУоАП obligatory presence is established by consideration of the case of the person who is brought to administrative responsibility according to Art. Art. 172-4 – 172-9 КУоАП. In case of evasion of the attendance of a call by the internal affairs agency or a judge of a district, district in a city, city or city district court, this person may be subject to compulsory driving.
In accordance with paragraph 3 of the Resolution of the Plenum of the Supreme Court of Ukraine of May 25, 1998, No. 13 “On the practice of courts hearing cases on corruption acts and other offenses related to corruption” in cases of this category, the courts should clarify in each case the following issue: there was an offense for which the person is prosecuted; contains an act of corpus delicti of corruption provided for by the Law; or the person is guilty; whether she belongs to the subjects of this offense; does not contain offense signs of a crime; or did not expire at the time of the consideration of the time frame provided for by Art. 38 КУоАП; Are there any other circumstances precluding the proceedings.
Judicial practice on untimely filed e declaration is also ambiguous today, application in 38 KUoAP, on the closure of administrative proceedings on the expiration of the terms of bringing to justice, is ambiguous.
Therefore, only a specialist who understands protection issues in corruption offenses can objectively determine the time of detection of a corruption offense, the specific date for detecting an administrative offense, the statute of limitations for a corruption offense, with a view to further appealing the corruption protocol, taking into account the fact that judicial practice
ambiguous and the terms of prosecution are interpreted differently.
In case of inadequate protection and not knowing their rights, as a person against whom a protocol on an administrative corruption offense has been drawn up can lead to negative consequences.
Thus, the protocol on corruption has consequences, in particular, according to the first part of Article 65 of the Law of Ukraine “On the Prevention of Corruption” (hereinafter – the Law) for committing corruption or corruption-related offenses of a person referred to in the first part of Article 3 of this Law, are brought to criminal , administrative, civil and disciplinary responsibility in the manner prescribed by law. That is, responsibility for corruption offenses may be criminalized for corruption offenses, administrative responsibility for corruption offenses and disciplinary responsibility for corruption offenses.
The procedure for conducting an internal investigation in relation to persons authorized to perform the functions of the state or local self-government, and persons for the purposes of the Law of Ukraine “On the Prevention of Corruption” shall be equal to those authorized to perform the functions of the state or local government approved by the Cabinet of Ministers of Ukraine of 13.06. 2000 No. 950 (as amended by the Resolution of the Cabinet of Ministers of Ukraine of September 13, 2017, No. 691).
It is necessary to understand that responsibility for corruption, including responsibility for acts of corruption, responsibility for crimes of corruption, liability for corruption or corruption-related offenses, responsibility for corruption offense, responsibility for corruption or corruption-related offenses, the concept is outwardly identical, but have different legal basis. What requires perfect knowledge in this area.
We would like to draw your attention to another positive decision of the court, made in the interests of the client of PRIKHODKO & PARTNERS. So, once again the proceedings on the case of bringing to administrative responsibility for committing an administrative offense, under Part 1 of Art. 172-6 КУоАП closed due to the expiration of the term of bringing the person to administrative responsibility