DECLARATION OF INRELIABLE INFORMATION (ART. 366-1 of the Criminal Code of Ukraine)

Citizens often turn to the law firm “Prikhodko and Partners” in connection with attempts to bring them to criminal or administrative liability for declaring inaccurate information. Today I would like to pay special attention to Art. 366-1 of the Criminal Code of Ukraine, which is relatively new in Ukraine and the practice of application of which is not yet clearly formed today.

 I want to share a comment on this article, and express my own views on its application by law enforcement agencies. R. Shekhavtsov, in the practical manual on criminal-legal qualification and pre-trial investigation of corruption crimes and crimes related to corruption “CORRUPTION SCHEMES: their criminal-legal qualification and pre-trial investigation”, gave a good comment on Article 366-1 of the Criminal Code of Ukraine .

In particular, it is noted that the legal basis of financial control in the anti-corruption sphere of Ukraine is determined by Section VII of the Law “On Prevention of Corruption”. Parts 1, 2 of Art. 45 of this Law impose on certain subjects the obligation to submit a declaration of a person authorized to perform the functions of the state or local self-government. Article 366-1 is intended to guarantee the proper performance of this obligation by the declarants.

The subject of the crime

The information in the declaration is the information that according to parts 1, 3 of Art. 46 of the Law “On Prevention of Corruption” are included in the declaration of a person authorized to perform the functions of state or local self-government. These are both personal data of the person (surname, name, patronymic, registration number of the taxpayer’s account card, etc.) and information about his property status (real estate, construction in progress, valuable movable property, etc.).

This information should be considered inaccurate if it is not true. For example, the declaration:

• does not provide information about all real estate objects that belong to the subject of the declaration and members of his family on the right of private property or are in them for rent or other right of use;
• incorrect data on the date of acquisition of securities in ownership or their nominal value or quantity;
• intangible assets belonging to the declaring subject or members of his family, etc. are not reflected.

According to the requirements of Art. 46 of the Law on Prevention of Corruption, the same information may be indicated in the declaration of a person authorized to perform the functions of the state or local self-government several times. For example, if the registered and actual place of residence of a person is an object of real estate owned by him, the information about this object must be reflected in the declaration three times:

• as the registered place of residence of the declarant;
• as the place of his actual residence;
• as an object of real estate owned by the declarant on the right of ownership.

The Krasnolimansky city court of Donetsk region by the sentence from June 12, 2018 in case №236/6/18 (https://www.reyestr.court.gov.ua/Review/74683155) correctly condemned under Art. 366-1 a person who, among the real estate owned or used by him, did not reflect in the declaration the apartment in which he was registered and actually lived. The fact that the convict indicated the apartment as the place of his registration and actual residence does not indicate that he has fulfilled his obligation to declare the real estate belonging to him, at least because the information on the place of registration and residence does not indicate on what legal grounds the declarant uses the relevant property.

In some cases, Art. 46 of the Law “On Prevention of Corruption” describes the information that must be declared using non-exhaustive lists. For example, paragraph 9, part 1 of this article deals with financial liabilities, including received loans, borrowings, liabilities under leasing agreements, the amount of funds paid to the principal amount of the loan (credit) and interest on the loan (credit), liabilities under insurance contracts and private pension provision, funds borrowed from other persons. In such cases, it is necessary to avoid an unjustifiably formal approach to the interpretation of legal provisions.

It is impossible to agree with the decision of the Velykobereznyansky district court of the Zakarpattia region, which by a judgment of July 2, 2018 in case № 298/1385/17 acquitted a person who did not indicate in his declaration obligations to pay debts under a civil transaction, as well as obligations regarding the payment of procedural costs and court fees. In support of its decision, the court pointed out that neither in Art. 46 of the Law “On Prevention of Corruption”, nor in the declaration itself does not specify the type of “obligation arising from a court decision” (https://www.reyestr.court.gov.ua/Review/75021235).

Thus, the court, first, ignored the non-exhaustive nature of the list of information referred to in paragraph 9 of Part 1 of Article. 46 of the Law on Prevention of Corruption, secondly, avoided answering the question of whether there was an obligation of the accused to enter in the declaration the information which he avoided, thirdly, distorted the basis for the obligations of the accused, because at least in terms of the obligation to repay the debt under a civil transaction, the basis for its occurrence is not a court decision, which only confirmed the existence of the relevant obligation of the accused.

The objective side of the crime

From the objective point of view, the corpus delicti provided for in Art. 366-1 is formal. Declaring inaccurate information is done by inaction, which can take the form of:

• submission by the subject of declaring unreliable information in the declaration of a person authorized to perform the functions of the state or local self-government, provided by the Law “On Prevention of Corruption”;
• failure of the subject to declare the said declaration.

Despite the fact that the first of the forms of committing a crime under Art. 366-1, gives the impression of active behavior (action), in fact this is not the case, because according to the relevant legal wording is hidden improper performance of the obligation to submit a declaration of a person authorized to perform the functions of state or local government. In particular, this is indicated by the fact that according to Part 4 of Art. According to the Law “On Prevention of Corruption”, in case of detection of inaccurate information in the declaration, the declaring subject is obliged to submit a corresponding declaration with reliable information.

Submission of inaccurate information in the declaration means the transfer in the manner prescribed by law to the NAPC of the declaration of a person authorized to perform the functions of state or local government, which contains inaccurate information. According to Part 1 of Art. 45 of the Law “On Prevention of Corruption” such declarations are submitted by filling in on the official website of the NAPC. Although in Part 2 of Art. 45 of the Law on Principles of Prevention of Corruption does not specify the completion of the declaration on the official website of the NAPC by persons who terminate or have ceased activities related to the performance of state or local government functions, but in reality they submit declarations in the same manner.

Transfer to the NAPC of inaccurate information provided for in parts 1, 3 of Art. 46 of the Law “On Prevention of Corruption”, in a manner not stipulated by law (by courier, mail or communications, etc.) can not be qualified as the submission of inaccurate information in the declaration of a person authorized to perform state or local government functions: such action in principle can not be considered the fulfillment of the obligation under Art. 45 of the Law “On Prevention of Corruption”. If there are necessary grounds for that, a person in such cases may be subject to criminal liability for intentional failure to submit a declaration.

The actions of the declaring subject cannot be qualified under Art. 366-1, if the subject of the declaration has either the fulfillment of the requirements or the exercise of the rights provided by the Law “On Prevention of Corruption”:

he used the provisions of Part 4 of Art. 45 of the Law “On Prevention of Corruption” the right to correct the errors identified by him in the declaration and did not violate the established procedure and deadlines for the implementation of this right;

the value of property, property rights, assets, other objects of declaration, which are in the possession or use of the subject of declaration, was not specified in the declaration, but at the time of its submission it was not and should not have been known to object of declaration;

the family member of the declaring subject refused to provide any information or part of it to fill in the declaration of the declaring subject, and the latter stated this in the declaration, reflecting all known information about such a family member.

According to para. 2 notes to Art. 366-1, the responsibility for the submission by the declaring subject of knowingly unreliable information in the declaration regarding the property or other object of declaring, which has value, arises if such information differs from the reliable one by more than 250 subsistence minimums for able-bodied persons. In interpreting this provision, special attention should be paid to the following circumstances:

the value of the object of declaration must be established as of December 31 of the reporting year, if as of that time there was a legal relationship between the object of declaration and the declarant (the object was owned or owned by the declarant, the financial obligation of the declarant continued to exist, etc.), or as of the moment when during the reporting year the specified legal relationship ceased (the declarant sold the object of declaration, ceased to use it, fulfilled its financial obligations, etc.).

It is impossible to consider correct, for example, the approach of the Krasnolimansky city court of Donetsk region which, condemning the person by the sentence of June 12, 2018 in case №236/6/18, was based on the conclusion of construction and technical examination on determination of market value of the undeclared apartment March 2017, ie the last day for filing the annual declaration of the person authorized to perform the functions of the state or local government, for 2016, although the declaration itself was filed by the accused on March 20 of the same year, and the information in it referred to 2016.

In this case, the court did not take into account that the annual declaration contains information about the property status of the person as of the reporting year, which at the time of declaration has passed, and not as at the time of declaration;

in the note to Art. 366-1 does not specify what exactly the size of the subsistence minimum for able-bodied persons should be guided by the application of para. 2 notes to Art. 366-1. Given that in the text of Art. 46 of the Law “On Prevention of Corruption” repeatedly states the size of the subsistence level as of January 1 of the reporting year, it is on him and should be guided by the application of para. 2 notes to Art. 366-1;

given that the disposition of Art. 366-1 does not contain any mention of the quantitative characteristics of the objects of declaration, in respect of which the person has declared inaccurate information, the circumstance referred to in para. 2 notes to Art. 366-1, should be considered as a kind of objective condition of criminal liability of a person who is not covered by the crime in general and guilt in particular (Provisions of paragraph 2 of the note to Article 366-1 is a legal “antipode” to the provisions of Part 2 of Art. 385 and Part 2 of Article 396 of the Criminal Code).

According to item 5 of h. 1 Art. 12 of the Law “On Prevention of Corruption” NAPC has the right to adopt binding regulations on matters within its competence, including on ensuring the maintenance of the Unified State Register of declarations of persons authorized to perform the functions of state or local self-government (paragraph 9, part 1 of Article 11 of the Law) and control and verification of declarations of persons authorized to perform functions of state or local self-government, storage and publication such declarations, monitoring the lifestyle of persons authorized to perform the functions of the state or local self-government (paragraph 8, part 1 of Article 11 of the Law).

As a result, declaring entities must comply with NAPC acts related to the declaration procedure, in particular Explanations on the application of certain provisions of the Law of Ukraine “On Prevention of Corruption” regarding financial control measures, approved by NAPC decision of August 11, 2016 № 3).

Accordingly, such legal acts create in the subjects of declaring the idea of ​​legal and illegal during the declaration procedure, and therefore the subject of the declaration should not be liable under Art. 366-1 for following the instructions contained in the legal acts of the NAPC.

When qualifying a person’s actions as submission of inaccurate information in the declaration, it should be borne in mind that it should be carried out “autonomously” from the provisions of private (civil, commercial, family, housing) law and acts of its application, for example:

the grounds provided by the Civil Code for the emergence of a person’s right to use property are relevant only for the purposes of “horizontal” private-law relations with other subjects of civil rights. For the purposes of anti-corruption legislation and the interpretation of Art. 366-1 use of property is a matter of fact. Accordingly, if the collected evidence gives grounds to believe that the declaring subject actually (actually) used certain property, it does not matter whether the use became possible due to: concluding a transaction in the form prescribed by civil law, concluding a transaction without compliance with the law or criminal illegal actions of a person (for example, theft of property, obtaining illegal benefits);

the provisions of the CPC give preliminary significance to the decisions of other courts only in special cases. In particular, according to Article 90 of the CPC, a decision of a national court or international judicial institution that has entered into force and found a violation of human rights and fundamental freedoms guaranteed by the Constitution of Ukraine and international treaties approved by the Verkhovna Rada is prejudicial to the court. , which decides on the admissibility of evidence. Because a decision establishing or not establishing the fact of cohabitation or any other legal fact is not a decision establishing “violation of human rights and fundamental freedoms guaranteed by the Constitution of Ukraine and international treaties approved by the Verkhovna Rada. Of Ukraine ”, it does not have a preliminary character in criminal proceedings on charges of committing a crime under Art. 366-1.

Failure to submit a declaration is the inaction of the subject of the declaration, which consists in the consistent failure to fulfill two obligations:

the obligation to submit the declaration to the NAPC in the prescribed manner within the period prescribed by law;

and after that – the obligation to submit the declaration within ten days from the date of receipt of the NAPC notification of non-submission of the declaration.

The complicated nature of the act is due to the fact that Part 1 of Art. 172-6 of the Administrative Code establishes liability for late submission of this declaration. If you limit the content of non-submission of the declaration only by an indication of its non-submission within the period specified by law, this will not allow to distinguish the crime under Art. 366-1, from the administrative misdemeanor provided by h. 1 Art. 172-6 CAP.

Unfortunately, in judicial practice, due attention is not paid to the fact that a person receives a notification from the NAPC about failure to file a declaration, even when considering cases of administrative offenses under Part 1 of Art. 172-6 KAP, nor when considering cases of crimes under Art. 366-1.

Gadyatsky District Court of Poltava region, adopting a decision of September 6, 2018 in case №538/1017/18 (https://www.reyestr.court.gov.ua/Review/76281803) on finding a person guilty of committing an administrative offense under Part 1 of Art. 172-6 of the Administrative Code, took into account the protocol on administrative offenses and other materials, but did not establish whether the person from the NAPC received a notification of failure to submit a declaration of a person authorized to perform the functions of state or local government.

On the other hand, the Frunzensky district court of Kharkiv, convicting a person under Art. 366-1 of the judgment of 25 October 2017 in case № 645/2465/17 explicitly rejected her reference to the fact that she had not received a notification from the NAPC not to file a declaration, arguing that “the NAPC did not send a notification to the accused not to file a declaration the legislation does not link the onset of consequences, ie the onset of liability under Art. 366-1 of the Criminal Code in intentional failure to submit a declaration, only after a written notification of the declaring subject, so the court does not accept the arguments of the accused as a basis for acquittal “(https://www.reyestr.court.gov.ua/Review/ 69846895). The vulnerability of such considerations is obvious at least because the objective side of the crime under Art. 366-1, does not provide for the occurrence of any consequences.

According to Part 1 of Art. 45 of the Law on Prevention of Corruption, the declaration of a person authorized to perform the functions of the state or local self-government can be submitted only by filling it out on the official website of the NAPC. Accordingly, it cannot be considered as a submission of the declaration to be sent to the NAPC in any other way.

For example, the Monastyryshche District Court of Cherkasy Region sentenced on July 6, 2018 in case № 702/622/17 under Art. 366-1 a person who, due to religious beliefs, refused to submit a declaration of a person authorized to perform the functions of state or local self-government in electronic form, and instead submitted a written declaration to the NAPC (https://www.reyestr.court.gov.ua / Review / 75159780).

The subjective side of the crime

From the subjective point of view, the crime is characterized exclusively by direct intent. The declaring subject is aware of the inconsistency of the information provided by him in the declaration with the real state of affairs or the fact that he does not fulfill the obligations to submit the declaration to the NAPC. Such awareness concerns both the actual side of the act and its social significance.

Awareness of the actual side of the act is absent, if the declarant entered in the declaration of information that does not correspond to reality, without realizing this fact, regardless of the reason for this (technical problems, lack of computer skills, fatigue, health status, etc.). In the doctrine of criminal law, liability for so-called negligent omission is considered justified only when a person is “distracted by other facts or information, although he knows that the applied method (act) of psychological behavior by its nature requires constant physical and mental intervention.” case “it is possible to justify responsibility both for forgetfulness, and for carelessness, etc. and when these phenomena do not depend on the will and consciousness of the person, that is, in the absence of guilt.

It is possible that in some cases, when the declarant is not aware of the socially dangerous nature of the submission of knowingly inaccurate information in the declaration of a person authorized to perform state or local government functions provided by the Law of Ukraine “On Prevention of Corruption”, it is possible to speak of negligence. Part 2 of Art. 25, however, the fact of submission of unreliable information in the declaration of negligence does not create grounds for liability under Art. 366-1.

Although in most cases the awareness of the factual side of the act indicates an awareness of its social significance, such a dependence is not an irrefutable presumption. In this aspect, the classic case of Aliyev and Novruzov from Soviet times is indicative, in which the Supreme Court of the USSR came to the following conclusion: “According to Art. 19 of the Criminal Code of the Azerbaijan SSR, failure to report a reliably known crime that is being prepared, committed, or a crime committed can only be intentional. Thus, in case of failure to report the crime, the non-reporter assumes that his failure to report the crime contributes to the preparation, commission, concealment of the crime and the offender and thus deprives the relevant authorities of the opportunity to take measures to stop criminal activity and expose the offender. In this case, both Novruzov and Aliyev were convinced that the authorities knew both the fact of Isayev’s murder and the person who committed it, and they did not report it just because they considered it unnecessary to report it further. “

For example, it is not possible to talk about the subject’s declaration of public danger of the act in the following cases:

 the form of the declaration (approved by the NAPC decision of June 10, 2016 № 3), does not allow a person to fully and accurately display his personal data or information about his property status, or explanations of the NAPC allow discrepancies as to what information and how exactly make a declaration;

due to a serious illness, natural disaster or other circumstances of an exceptional nature independent of it, the person could not comply with the NAPC’s requirement to file a declaration within the established period. Given the established approaches of judicial practice to take into account the objective circumstances of the act (crime) in establishing its subjective side, such an approach should be applied in criminal proceedings under Art. 366-1. For example, paragraph 22 of the PVA Resolution № 2 of 7 February 2003 “On Judicial Practice in Cases of Crimes against the Life and Health of a Person” states: “To distinguish premeditated murder from intentional infliction of grievous bodily harm resulting in the death of the victim ( Part 2 of Article 121 of the Criminal Code), courts must carefully examine the evidence relevant to clarify the content and direction of the intent of the perpetrator. The question of intent must be decided on the basis of all the circumstances of the act, including the method, instrument of the crime, the number, nature and location of injuries and other bodily injuries, the causes of cessation of criminal acts, the conduct of the perpetrator and the victim, their relationship. See also para. 2 item 4 of the resolution of PVS from April 26, 2002 № 4 “About judicial practice in cases of crimes in the field of circulation of narcotic drugs, psychotropic substances, their analogs or precursors”.

In particular, a person’s submission of false information in a declaration should be assessed in conjunction with his or her previous and subsequent conduct. For example, if a person in previous annual declarations reflected certain objects, and in the next declaration did not do so and at the same time did not enter in the declaration false information about the termination of ownership of such object or the right to use it, such combination of facts indicates the benefit of the fact that the person unknowingly entered false information in the declaration. Conversely, if the declarant does not include in the declaration certain objects in respect of which he actually has the right of ownership and use, and at the same time enters in the declaration false information about the termination of these rights, it indicates that he was aware of the nature of his act , and therefore – acted with intent, characteristic of the crime under Art. 366-1.

Important in establishing the subjective side of the crime under Art. 366-1, there is also a clarification of the motive with which the subject of the declaration acted. Although this element of the subjective side of the crime is not mandatory at the level of Art. 366-1, however, the lack of evidence that would indicate a specific motive for a person to enter false information in the declaration, leads to the conclusion that such a person was not really aware of the nature of their actions, and therefore – in his behavior there is no intent. For example, the motive was never a constructive element of the crime under Art. 358 of the Criminal Code, however, in the Supreme Court in the decision of May 5, 2011 in case № 5-555km11 indicated: although the establishment of this motive could indicate the convict’s awareness of the illegality of issuing a seafarer’s identity card to PERSON_6 “(USSR: https://www.reyestr.court.gov.ua/Review/15119621). This legal position seems important given the similarity of the corpus delicti provided for in Articles 358 and 366-1 of the Criminal Code.

On the other hand, neither criminal nor anti-corruption legislation allows a person to refuse to file a declaration of a person authorized to perform state or local government functions in the manner prescribed by law for ideological, political, religious reasons or in order to keep his private life secret. .

Monastyryshche District Court of Cherkasy region in the above-mentioned sentence of July 6, 2018 in case № 702/622/17 rightly did not take into account the defendant’s reference to the fact that the submission of a declaration of a person authorized to perform state or local government functions in electronic form contradicts her religious beliefs (https://www.reyestr.court.gov.ua/Review/75159780).

In this context, it should also be noted the decision of the European Court of Human Rights in the case “ Wypych v. Poland ”(2005), in which the court found no violation of the applicant’s right to respect for private life by imposing on him as a member of a local government the obligation to file a declaration of property status in electronic form. In reasoning its decision, the court referred to the fact that such a variant of state interference pursued a socially significant goal, the degree of interference in the applicant’s private life corresponded to that purpose, and the applicant’s tenure was a consequence of his own will. These legal arguments are relevant in the context of possible explanations of persons accused of committing a crime under Art. 366-1, about inadmissibility for them personally for these or those reasons of system of electronic declaration.

Simply put, the declaration provided by the anti-corruption legislation applies to limited categories of persons who hold relevant positions or carry out certain activities on the basis of their own will. Accordingly, in deciding whether to hold a position or engage in a relevant activity, a person implicitly agrees that such a choice will result in the obligation to file a declaration of a person authorized to perform state or local government functions. In view of this, it becomes clear why the legislation contains a reservation on refusal to accept the registration number of the taxpayer’s account card and does not contain the same provision on refusal to file a declaration of a person authorized to perform state or local government functions. The obligation to accept the registration number applies to the widest possible range of persons and does not depend on their previous actions that would indicate consent to accept the specified number.

The subject of the crime

The subject of the crime under Art. 366-1, is special. According to the note to Art. 366-1 may be subject to criminal liability of persons who, in accordance with parts 1, 2 of Art. 45 of the Law “On Prevention of Corruption” are required to submit a declaration of a person authorized to perform the functions of state or local government.

Among the subjects of the crime under Art. 366-1, include, in particular, persons who cease activities related to the performance of state or local government functions. For the purposes of anti-corruption legislation and, accordingly, for the purposes of interpreting Art. 366-1, they should include all persons who terminate activities related to the performance of state or local government functions, regardless of the procedure or grounds for termination of such activities.

Thus, it is impossible to agree with the position set out in paragraph 2 of the Information Letter of the Supreme Court of 22.05.2017 on bringing to administrative responsibility for certain offenses related to corruption, in which with reference to Art. 126 of the Constitution of Ukraine emphasizes that the requirements of Part 2 of Art. 45 of the Law on Prevention of Corruption are relevant only for judges whose powers are terminated, but not for judges who are dismissed. Despite the fact that the Basic Law identifies two options for termination of a person’s performance of the functions of a judge, this does not automatically mean that such a distinction is relevant for anti-corruption legislation. The opposite would mean that judges who are dismissed on the grounds of violation of incompatibility requirements or violation of the obligation to prove the legality of the sources of property are not required to file a declaration of a person authorized to perform state or local government functions under Part 2 of Art. 45 of the Law “On Prevention of Corruption”.

In determining whether a person is liable under Art. 366-1, should take into account the practice of the NAPC to provide clarifications to interested parties as to whether they are the subjects of the declaration. For example, one such explanation was that the NAPC acknowledged that patronage officers were not among the subjects of the declaration (Article 92 of the Law on Civil Service), and another determined who among the so-called anti-corruption activists should file a declaration. a person authorized to perform the functions of the state or local self-government (https://hromadske.ua/posts/nazk-utochnylo-khto-z-antykoruptsioneriv-maie-podavaty-deklaratsii).

Persons who, following such explanations, have not filed a declaration of a person authorized to perform the functions of state or local self-government, should not be subject to criminal liability under Art. 366-1, as they cannot be considered as having failed to file a declaration intentionally within the meaning of Art. 24 CC.

A person applying for the position specified in paragraph 1, subpara. “A” item 2 of Art. 3 of the Law, neither for non-submission of the declaration, nor for submission of knowingly unreliable information in the declaration, responsibility under Art. 366-1 does not bear. Submission of unreliable information in the declaration by such a person cannot be qualified under Art. 358: the declaration of the person authorized to perform the functions of the state or local self-government is not an official document within the meaning of the note to Art. 358. Official documents on the content of the note to Art. 358 are drawn up, issued or certified by authorized (competent) persons of state authorities, local governments, associations of citizens, legal entities, as well as individual citizens, including self-employed persons who have been granted by law the right in connection with their professional or official activity to draw up, issue or certify certain types of documents drawn up in compliance with the forms prescribed by law and containing the details prescribed by law. The declaration does not fall under this definition, because:

• it is not made, issued, certified by any of these persons;
• its preparation is an obligation, not a right of the subject of declaration.

 Responsibilities under Art. 366-1 is subject to a person who actually held a position related to the performance of state or local government functions.

Vynohradiv District Court of Zakarpattia region by a judgment of June 18, 2018 in case № 299/2774/17 correctly acquitted a person who without his consent was elected by the village council to the position of head of the utility without her consent. At the same time, the order on appointment to the position was not brought to the notice of the accused, his job responsibilities were not explained to him, his salary was not accrued, he did not exercise actual management of the enterprise (https://www.reyestr.court.gov.ua/Review / 74723437).

 Particular attention should be paid to cases where the subjects of the declaration are involved in drawing up and submitting the declaration of third parties (for example, colleagues, family members):

Article 45 of the Law “On Prevention of Corruption” does not provide for the possibility of delegating the obligation to submit a declaration of a person authorized to perform the functions of state or local self-government to an outsider. Therefore, this obligation must be performed by the declarant personally.

According to Part 1 of Art. 45 of the Law “On Prevention of Corruption” fulfillment of this obligation is carried out by filling out a declaration on the official website of the NAPC. In this case, paragraph 3 of section II of the Procedure for formation, maintenance and publication (provision) of information of the Unified State Register of declarations of persons authorized to perform state or local government functions, approved by NAPC decision of June 10, 2016 №3, provides that the declaring subject must be registered in the Unified State Register of declarations of persons authorized to perform the functions of state or local government, using a private key and an enhanced certificate of public key electronic digital signature (hereinafter – EDS), and from paragraphs 4 and 8 of section II of this Procedure to the personal account in which the declaration is filled in and its signing is possible only with the use of EDS. In turn, Part 2 of Art. 12 of the Law on Electronic Trust Services imposes on users of electronic trust services the obligation to ensure the confidentiality and inability of others to access the private key. Therefore, it also follows from the above provisions of the legislation that only the subject of the declaration must fill in, sign and send the declaration of the person authorized to perform the functions of the state or local self-government.

Thus, if a third party on behalf of a person authorized to perform state or local government functions has submitted a declaration of a person authorized to perform state or local government functions, this act cannot be considered proper execution by the subject of declaring the imposed his duty, and therefore – the available grounds to qualify his behavior as a deliberate failure to submit a declaration;

third parties may be liable as accomplices in the submission by the subject of declaring inaccurate information in the declaration, provided that they are aware of the fact that the specified declaration of inaccurate information. For the reasons stated above, outsiders cannot be considered perpetrators or co-perpetrators of this crime;

if there are sufficient grounds for that, outsiders must be additionally responsible for committing a crime under Art. 361.

As declarations are filed through the NAPC’s official website, the composition of the declaration of inaccurate information should be distinguished from the composition of some crimes in the field of the use of computers, systems and computer networks and telecommunications networks. Liability under Art. 366-1 occurs in the case of submission of inaccurate information in the declaration by the declaring entity. If such information was entered into the declaration after its submission by other persons (so-called hackers or persons administering the Unified State Register of Declarations of Persons Authorized to Perform State or Local Self-Government Functions), the actions of such persons should qualify if there are sufficient grounds. under Articles 361 or 362. In cases where these persons acted at the request, on behalf of or by order of the declaring subject, the latter is liable as an instigator of one of these crimes.

In case of criminal proceedings under Art. 366-1 and further application of this provision of the criminal law should not take into account the NAPC Decision № 1375 of December 8, 2017 “On approval of the Clarification on the application of certain provisions of the Law of Ukraine” On Prevention of Corruption “regarding the need to establish violations of anti-corruption legislation, namely the declaration of inaccurate information and illicit enrichment, the National Agency for the Prevention of Corruption during a full examination of the declaration of a person authorized to perform the functions of state or local government to initiate criminal proceedings on the grounds of criminal offenses under Art. 366-1 and Art. 368-2 of the Criminal Code of Ukraine “, according to which the initiation of criminal proceedings under these articles must be preceded by the conclusion of the NAPC on violation of anti-corruption legislation.

According to Part 1 of Art. 9 of the CPC, subjects of power in criminal proceedings must be guided by the Constitution of Ukraine, international treaties and legislation, but NAPC decisions do not fall into any of these categories, and therefore they cannot create obstacles to the initiation and conduct of criminal proceedings.