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Prikhodko Andrey

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Corruption offense

In order to carry out national reforms, the issue of combating corruption has become a key aspect of success in this area. Of course, in legal relations, the detection and detection of corruption crimes, in any country, is of paramount importance: specially authorized bodies are created, clear legal mechanisms are in place to prove their guilt, and the rights and freedoms of potential violators are monitored. In its socio-legal manifestation, corruption, as a dangerous complex social phenomenon, concerns a certain category of persons, ie it is determined only by those who are endowed with official or power powers.

 

Legal aspects of corruption

Looking at the nature of corruption, we can distinguish three main features.

The first is public danger. Depending on the severity of the act of corruption, it can be classified as an administrative or criminal offense. According to the law, these violations are qualified by the relevant anti-corruption bodies, including the National Anti-Corruption Bureau of Ukraine, the National Agency for Prevention of Corruption, the Specialized Anti-Corruption Prosecutor’s Office, and the State Bureau of Investigation (under construction). In their activities, institutions work closely together, but differ in functional responsibilities. A special place in their system belongs to NABU. Endowed with broad powers, its employees search for and detect corruption schemes of high-ranking officials: judges, prosecutors, city and regional leaders, deputies, etc.

The second sign of corruption can be distinguished the presence of the subject of the offense – a person who falls under Part 1 of Article 3 of the Law of Ukraine “On Prevention of Corruption”. This list identifies the officials covered by this law and is exhaustive.

The third feature is the presence of a causal link in the actions of the subject, or in other words – the use of power and official powers granted to him to achieve their goals.

How to protect yourself?

The presence of a high rate of corruption undermines the authority of the state, inhibits economic development and destroys established moral and ethical norms. Loud statements are made in the media every day about the facts of detection of corruption and detention of officials. The number of open criminal proceedings on the grounds of corruption offenses is constantly growing, and the relevant law enforcement agencies are taking measures to further refer the case to court. However, behind the success of the anti-corruption activities are people who are “on the other side of the barricades” and need protection. How to do to those who are accused of corruption, how to prove their innocence in cases when, even without understanding, the employees of the above bodies stigmatize the corrupt.

The question arises: who to turn to for legal assistance?

The Constitution of Ukraine guarantees everyone the right to protection – a right that must be exercised. The participation of a qualified lawyer with many years of experience will be indispensable at the beginning of the investigation in this category of crimes. Such criminal offenses have their own specifics. However, as practice shows, thanks to the legally competent work of the defense counsel, a difficult situation can be resolved by closing the criminal proceedings at the stage of pre-trial investigation. Thus, in the process of proving corruption crimes, a number of typical investigative actions are carried out. On their basis, the investigator and the prosecutor are obliged to fully, comprehensively and impartially investigate all the circumstances of the criminal act, and not only those that expose the suspect and aggravate his punishment, but also those that justify him or will be considered mitigating. sentence. The procedural decision in the case depends on the collected evidence base: an indictment will be drawn up, or a decision will be made to close the criminal proceedings. Timely qualified legal advice will not only help employees of the relevant authorities to follow the established procedure in the investigation process, but also help to avoid possible risks of sending materials to court. The legislator gives the defense counsel, from the moment of his intervention, certain powers, which he can widely exercise during the pre-trial investigation, which will directly affect the decision at the end of the investigation, and therefore positive for his client, in any case. In addition, Timely qualified legal advice will not only help employees of the relevant authorities to follow the established procedure in the investigation process, but also help to avoid possible risks of sending materials to court. The legislator gives the defense counsel, from the moment of his intervention, certain powers, which he can widely exercise during the pre-trial investigation, which will directly affect the decision at the end of the investigation, and therefore positive for his client, in any case. In addition, Timely qualified legal advice will not only help employees of the relevant authorities to follow the established procedure in the investigation process, but also help to avoid possible risks of sending materials to court. The legislator gives the defense counsel, from the moment of his intervention, certain powers, which he can widely exercise during the pre-trial investigation, which will directly affect the decision at the end of the investigation, and therefore positive for his client, in any case. In addition, which he can widely implement during the pre-trial investigation, which will directly affect the decision made at the end of the investigation, and therefore positively for his client, in any case. In addition, which he can widely implement during the pre-trial investigation, which will directly affect the decision made at the end of the investigation, and therefore positively for his client, in any case. In addition, the lawyer  will help to understand all practical subtleties of each structure of a criminal offense, will promote change of qualification towards reduction of weight.

Corruption crimes can be divided into several types: direct corruption, ie the norm of the article of the Criminal Code of Ukraine is directly described by the legislator as corruption (bribery, profit, etc.) or it follows from its content, and criminal offenses, which do not cover all features corruption.

The first type includes a crime under Art. 191 of the Criminal Code of Ukraine, ie possession, misappropriation, waste of property by abuse of office. Property relations have always been a key direction of law enforcement agencies in the fight against illegal encroachments. Theoretically, the law prescribes the forms of committing this crime, but in practice proving the guilt of suspects includes a holistic set of interrelated measures aimed at establishing the fact related to the position, free, intentional, unlawful possession of a person for personal purposes by attorneys. her property, or its turnover in favor of third parties. The subject of the crime, in our time, are mainly valuables, cash and non-cash funds. Ago, During searches and temporary access to things and documents, law enforcement officials seize accounting documents confirming the movement of assets, documents for the right to engage in certain activities, organizational and administrative documents of the enterprise, documents of statistical and operational accounting and reporting, etc. As a result of these investigative actions, the normal functioning of the institution is often prevented – the documents necessary for its work are seized, which for months or even years fall to the dust in the safes of investigators and prosecutors. The intervention of a lawyer will facilitate the timely conduct of investigative (search) actions, compliance with the law during their conduct, and a properly drafted petition in criminal proceedings will allow to be informed about the state of affairs.

In addition, the defense counsel, in favor of the suspect in the proceedings, if necessary, will question the position of the prosecution in terms of the presence of the main components of the crimes of this category:

  • whether his client falls under the characteristics of the subject of the crime, ie whether he held a financially responsible position, whether he was an official, etc .;
  • which tangible assets are the subject of encroachment (whether they were really entrusted to the client, etc., and whether there are supporting documents in the proceedings);
  • where is the place of commission of actions that the investigation considers illegal (analysis of a specific situation);
  • what reflects the material consequences of the actions of the defendant.

In practice, criminal offenses under Article 191 of the Criminal Code of Ukraine are incriminated as multi-episode, but thanks to a pre-built protection strategy, you can insure yourself against “additional cars”.

Another criminal offense of the above type of corruption crimes is provided by Article 368 of the Criminal Code of Ukraine. Documenting the misappropriation of a person in office is a priority in the fight against corruption. Depending on the position of the perpetrator, the amount of illicit gain, other signs, the sanctions of the article provide for imprisonment for a term of 2 to 12 years. In turn, this gives the investigator and the prosecutor the opportunity to apply to the court with a request to choose a measure of restraint for the suspect – detention.

Pre-trial investigation in this category of criminal proceedings, in most cases, begins with the conduct of covert investigative (search) actions. That is, criminal proceedings have been entered into the ERDR, and law enforcement officers only record and, accordingly, procedurally formalize the receipt of an illegal benefit, or the acceptance as such of an offer or promise. It should be remembered that for the prosecution the difficulty of the procedural design of such actions lies in the veil of both the bribe-taker, who tries to hide the fact of receiving benefits, and the investigation – because the main evidence contains a secret protected by law. The law provides for a special procedure for the implementation of materials of covert investigative (investigative) actions for use as evidence, but it is not always followed by the investigation. Therefore, a qualified lawyer usually:

  • in cases specified by law, apply to the investigator with a request for access to the materials of criminal proceedings (usually, investigative units refer to the secrecy of the investigation, but the legislator clearly provides for cases where such access to all materials or certain procedural documents of the investigation is unlimited);
  • directs the work on establishing the relevance and admissibility of evidence, ie, if necessary, refuting the possibility of their use by the prosecution;
  • objectively assess the evidence (individually and in aggregate) as to whether there has been an illegal benefit (promises, proposals) and, if there are grounds, question the validity of the position of the investigation;
  • finding gaps in the arguments of the prosecution, will make substantiated objections to the suspicion;
  • will request the conduct of important investigative actions.

The concept of protection in the future depends on awareness at the beginning of the pre-trial investigation. Similarly, a lawyer will work in criminal proceedings opened on the grounds of a crime under Article 369 of the Criminal Code of Ukraine. It covers a promise, offer or provision of improper benefit to an official.

The criminal offense provided by Art. 368-2 of the Criminal Code of Ukraine, today, contains more practical contradictions than agreements. We are talking about illegal enrichment, ie the acquisition by an official of significant assets in the absence of grounds for their legality, which was confirmed by evidence.

The introduction of electronic declaration has created a resonance around the wealth of employees: anyone can see the information about the income of persons of interest to him and apply for a criminal offense. Investigators, prosecutors, and detectives have a duty to prove the fact of illicit enrichment: the sources of its origin, the method of acquisition, and the consequential connection with the suspect’s position. Law enforcement agencies have a wide range of opportunities, from researching the living conditions of a potential suspect to monitoring his employment. It should be noted that this criminal proceeding is opened in case of detection of illicit enrichment. At the same time, the presence of such a fact is a subjective-evaluative concept. In order not to fall victim to the manipulation of other people’s interests,

Another corruption crime under Art. 368-4 of the Criminal Code of Ukraine – bribery of a person who provides public services. Suspects in this category of cases may be persons who provide public services – a notary, auditor, independent mediator, arbitration trustee, expert, etc., or a person who provides them with improper benefit (general entity). In this case, it is important to distinguish between criminal and administrative offenses, which is expressed in the amount of illegal gain. The nature of this crime is twofold – there is someone who offers or provides improper benefits for the service and is the one who is bribed to perform this service for personal gain. Actions to provide a service can be both legal and illegal, can be committed, and can only be promised. In most cases, during investigative actions, one party confirms the fact of the crime, the other – denies. The main task of the pre-trial investigation is to eliminate contradictions in the testimony of witnesses and suspects. Therefore, the defense needs to delineate its line of conduct, because only one word in the priority investigative actions may depend on the onset of criminal liability.

Also, corruption offenses include abuse of influence. In accordance with Article 369-2 of the Criminal Code of Ukraine, a proposal to provide an illegal benefit or its direct provision may be initiated by a person who has an interest in influencing the decision of the person authorized to perform state functions, and a mediator who in turn may not only agree to such influence, but also requires material gain. As practice shows, there are problems in correctly determining the qualification of the subject’s actions and in distinguishing this offense from other corpus delicti. Therefore, the defense, given the role of the defendant in the act and his legal status, has good reason to work in this direction in their favor.

The legislator also provided for liability for provoking bribery. The problem of provoking corruption is especially relevant for the defense. It follows from Part 1 of Article 370 of the Criminal Code of Ukraine that only an official may be the subject of committing this criminal offense, and from Part 2 of Article 370 of the Criminal Code of Ukraine – a law enforcement officer. In the legal context, this act is criminally punishable by active behavior, in order to persuade to commit illegal acts.

Crimes that conditionally contain signs of corruption include official forgery. Forgery is one of the most common criminal offenses currently under investigation by investigative units. In most cases, Article 366 of the Criminal Code of Ukraine is investigated in conjunction with other crimes, as the act is often an instrument of another crime – corruption. That is why such actions are often an integral part of direct corruption. A criminal offense is characterized by episodicity, duration in time, recurrence. To improve crime detection statistics, law enforcement agencies, as a continuing crime, quite often incriminate a suspect in several episodes. Incorrect qualification entails a violation of the rights and freedoms of a person who is subject to criminal prosecution.

The described group of crimes includes violations in the field of budget legislation, in particular, this composition of the crime distinguishes Article 210 of the Criminal Code of Ukraine. The subject of a criminal offense may be an official – the head of the budget organization and institution, which is authorized to make expenditures from the budget, receive appropriations and commitments. Crimes are latent (hidden, law enforcement officers initiate measures to detect them), so information is entered into the ERDR upon fact, after which investigators gather evidence to declare suspicion by conducting temporary access to things and documents, searches and, as a rule, a large number interrogations. In the early stages of a pre-trial investigation, a potential suspect needs the assistance of a lawyer and to build a clear, “impenetrable” line of defense.

The novelty of the Criminal Code of Ukraine is Article 366-1 (prosecution for declaring unreliable information). The crime is also conditionally corrupt and is currently in theoretical and practical study, and therefore the importance of the participation of a qualified defense counsel in such criminal proceedings is difficult to overestimate. The subjects of the declaration, defined by the specified norm of the criminal law, need to legally protect themselves and their future now, as possible mistakes of the prosecution in interpreting the corpus delicti may lead to the declarant being included in the list of pioneers in this category.

A professional lawyer is a guarantee of reliable protection

Corruption crimes are difficult to build a defense strategy. Only an experienced lawyer-practitioner will provide valuable legal advice on how to act in a particular situation, behave during interrogation, investigative experiments, cross-examination. It is important that the defense counsel has the right to request forensic examinations, to ask the expert questions to resolve, and such work is a documentary proof of the client’s innocence.

With a  lawyer, the client will always be able to:

  • to avoid psychological pressure from law enforcement agencies;
  • take all legal means to prove his innocence before the suspicion is declared and the materials are sent to court;
  • in the case of a court case, significantly increase the likelihood and possibility of acquittal or a milder sentence.

In complex criminal procedure relations, the efficiency of a lawyer’s intervention depends not only on the observance of the rights and legitimate interests of a person subject to criminal prosecution, but also on the preservation of his property, position and, most importantly, good name in the eyes of business partners. Remember, with a professional you can always get a positive result, even from a hopeless situation, trust the future to reliable hands.

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