DEFEND YOURSELF OR FIND A CORRUPTION LAWYER? (PART ONE)

Factual circumstances

On April 10, 2019, the client of JSB “Prikhodko and Partners” filed an annual declaration for 2018.

On June 16, 2020, a senior operative officer in the police department of the 6th Department (Anti-Corruption) of the Kyiv Strategic Investigations Department of the Strategic Investigations Department of the National Police of Ukraine drew up a report on an administrative offense .

 In this protocol, the senior operative noted that the person, holding the position of Deputy Director for Commercial Affairs of the State Enterprise, being the subject of liability covered by the Law of Ukraine “ On Prevention of Corruption “, in violation of Part 1 of Article 45 of this Law, dangerous consequences, untimely without good reason, on April 10, 2019 filed an annual declaration of a person authorized to perform the functions of state or local government, for 2018, by filling out an electronic form on the official website of the National Agency, which committed an administrative offense under Part 1 Article 172-6 of the Code of Administrative Offenses of Ukraine.

On June 17, 2020, this protocol was sent to the Dniprovsky District Court of Kyiv.

This protocol on an administrative offense due to the professional protection of the lawyers of JSB “Prikhodko and Partners” was found to be illegal, illegal, unfounded and such that it was drawn up without complying with current legislation, based on the following.

ON THE ABSENCE IN THE ACTIONS OF A PERSON OF THE ADMINISTRATIVE OFFENSE

 1.1. Regarding the absence of the subject of an administrative offense

According to Part 1 of Article 9 of the Code of Administrative Offenses of Ukraine, an administrative offense (misdemeanor) is an illegal, guilty (intentional or negligent) act or omission that encroaches on public order, property, rights and freedoms of citizens, the established order of management and for which the law provides for administrative liability.

According to part 1, 2 of Article 251 of the Code of Administrative Offenses of Ukraine, evidence in the case of an administrative offense is any factual data on the basis of which in the manner prescribed by law the body (official) establishes the presence or absence of an administrative offense, the guilt of the person in its commission and other circumstances relevant to the proper resolution of the case. These data are established by the protocol on administrative offense, explanations of the person who is brought to administrative responsibility, victims, witnesses, the conclusion of the expert, material evidence, indications of technical devices and technical means having functions of photo and filming, video recording, including those that used by a person brought to administrative responsibility, or witnesses, as well as working in automatic mode, or means of photography and filming, video recording, including those used by a person brought to administrative responsibility, or witnesses, as well as working in automatic mode or in the mode of photography (video recording), which are used in monitoring the implementation of rules, norms and standards relating to road safety and parking of vehicles, the act of inspection and temporary detention of the vehicle, the protocol on seizure of things and documents, and other documents . The burden of gathering evidence rests with the persons authorized to draw up reports on administrative offenses set forth in Article 255 of this Code.

According to Part 1, Article 247 of the Code of Administrative Offenses of Ukraine, proceedings in the case of an administrative offense can not be initiated, and initiated is subject to closure in the following circumstances: the absence of the event and the composition of the administrative offense.

The above norms indicate that it is possible to bring a person to administrative responsibility only if the actions of an administrative offense, namely the object, the objective party, the subject and the subjective party, are established in his actions. The entity authorized to draw up the report, in our case the officials of the National Police of Ukraine, must collect evidence and prove the existence of all signs of an administrative offense.

Thus, in the absence of the subject of an administrative offense, the proceedings in the case of an administrative offense are closed in the absence of an administrative offense.

 Therefore, the client of JSB “Prikhodko and Partners” is not a subject of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine, as it is not subject to the provisions of Part 1 of Article 45 of the Law of Ukraine “ On Prevention of Corruption “ annual declaration of the person authorized to perform the functions of the state or local self-government. This conclusion is based on the following.

The objective side of the administrative offense provided for in part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine is the late submission without good reason of the declaration of the person authorized to perform the functions of state or local government.

The subject of offenses in this article, according to the note, are persons who, in accordance with parts one and two of Article 45 of the Law of Ukraine “ On Prevention of Corruption “ are required to submit a declaration of a person authorized to perform state or local government functions.

Pursuant to Part 1 of Article 45 of the Law of Ukraine “ On Prevention of Corruption “, the persons referred to in paragraph 1, subparagraphs “a” and “c” of paragraph 2 of part 1 of Article 3 of this Law are required to submit annually by April 1 by filling in the official on the website of the National Agency, a declaration of the person authorized to perform the functions of the state or local self-government (hereinafter – the declaration) for the previous year in the form determined by the National Agency.

According to subparagraph “a” of paragraph 2 of part 1 of Article 3 of the Law of Ukraine “ On Prevention of Corruption “, persons who for the purposes of this Law are equated to persons authorized to perform state or local government functions: officials of legal entities under public law in paragraph 1 of the first part of this article, members of the Board of the National Bank of Ukraine (except the Chairman of the National Bank of Ukraine), persons who are members of the supervisory board of a state bank, state enterprise or state organization for profit, business partnership, whose capital is more than 50 percent of the shares (stakes) owned by the state.

The senior police officer in the 6th Department (Anti-Corruption) Department of Strategic Investigations in Kyiv of the Department of Strategic Investigations of the National Police of Ukraine, in his report, referred to the fact that the person is an official of a legal entity under public law and is therefore liable for committing an administrative offense under part. 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine.

 However, the lawyers proved that the person is not an official of a legal entity under public law based on the following.

Neither the Law of Ukraine “ On Prevention of Corruption “ nor any other law contains a definition of an official of a legal entity under public law.

Definition of the official of the enterprise is provided by h. 3 Art. 65 of the Commercial Code of Ukraine, which states that the head of the enterprise, chief accountant, members of the supervisory board (if formed), the executive body and other governing bodies of the enterprise in accordance with the statute are officials of the enterprise. Other persons may also be recognized as officials by the company’s charter.

Thus, taking into account the provisions of Article 19 of the Constitution of Ukraine, namely: public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine, persons under public law must be enshrined in law. This legislative gap creates the possibility of different interpretations of this definition, which clearly does not meet the requirements of the Convention for the Protection of Human Rights and Fundamental Rights, regarding the “quality of national law”. Thus, in particular, the European Court of Human Rights in its decision “Shchokin v. Ukraine” noted the concept of the quality of the law, namely with the requirement that it be accessible to stakeholders, 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 responsibilities of individuals, national authorities are obliged to take the most favorable approach for individuals.

Thus, as we see, if the law does not contain the necessary clarity and precision, and in our case, the law does not contain the definition of an official of a legal entity under public law, then according to the case law of the European Court of Human Rights, national authorities are obliged to apply the most favorable persons approach.

According to Article 17 of the Law of Ukraine “ On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights ”, courts apply the Convention and the case law of the Court as a source of law when considering cases.

As mentioned above, in accordance with Article 65 of the Commercial Code of Ukraine, the head of the enterprise, chief accountant, members of the supervisory board (if formed), executive body and other governing bodies of the enterprise in accordance with the statute are officials of the enterprise. Other persons may also be recognized as officials by the company’s charter.

The client of JSB “Prikhodko and Partners” for 2018 did not hold any of the positions listed in Article 65 of the Commercial Code of Ukraine. At the same time, the charter of the State Enterprise “Ukrainian Medical Certification Center” does not recognize other persons not specified in this article, officials. Thus, in accordance with the provisions of the Commercial Code of Ukraine, the person for 2018 was not an official of a legal entity under public law.

The National Agency for the Prevention of Corruption by a bylaw, in the form of a decision, approved the Clarification on the application of certain provisions of the Law of Ukraine “ On Prevention of Corruption “ regarding financial control measures, where in paragraph 3 it was stated that in accordance with subparagraph “a” of paragraph 2 of the first part of Article 3 of the Law) should be understood employees of legal entities under public law, who are endowed with official powers to perform organizational and administrative or administrative and economic functions. The determining factor is the scope of functions (responsibilities) of the employee.

As we can see, the Clarification on the application of certain provisions of the Law of Ukraine “ On Prevention of Corruption “ at the level of the bylaw contains a broader interpretation of the definition of “official of a legal entity under public law” than the Commercial Code of Ukraine. However, given the higher legal force of the law compared to the by-law, as well as the case law of the European Court of Human Rights, national authorities are obliged to apply the most favorable approach to individuals in the event of ambiguous, inaccurate law. in the Commercial Code is narrower, and therefore more favorable for the person), priority is still given to the definition of an official of a legal entity under public law, which is contained in the Commercial Code of Ukraine.

However, despite the priority of defining an official of a legal entity under public law contained in the Commercial Code of Ukraine, the senior officer still did not provide any evidence of empowerment to perform organizational or administrative functions in the protocol on administrative offense provided for in part 1 Article 172-6 of the Code of Administrative Offenses of Ukraine.

 Given the above, namely not the establishment by the laws of Ukraine of the definition of an official of a legal entity under public law, the case law of the European Court of Human Rights that national authorities are obliged to apply the most favorable approach to individuals in case of ambiguous, inaccurate law. the fact of empowering a person to perform organizational or administrative functions, it is proved that the person is not an official of a legal entity under public law, and therefore is not a subject of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine , as he was not obliged to file an annual declaration for 2018 in accordance with Article 45 of the Law of Ukraine “ On Prevention of Corruption “.

1.2. Regarding the absence of the subjective side of the administrative offense

According to Part 1 of Article 9 of the Code of Administrative Offenses of Ukraine, an administrative offense (misdemeanor) is an illegal, guilty (intentional or negligent) act or omission that encroaches on public order, property, rights and freedoms of citizens, the established order of management and for which the law provides for administrative liability.

According to part 1, 2 of Article 251 of the Code of Administrative Offenses of Ukraine, evidence in the case of an administrative offense is any factual data on the basis of which in the manner prescribed by law the body (official) establishes the presence or absence of an administrative offense, the guilt of the person in its commission and other circumstances relevant to the proper resolution of the case. These data are established by the protocol on administrative offense, explanations of the person who is brought to administrative responsibility, victims, witnesses, the conclusion of the expert, material evidence, indications of technical devices and technical means having functions of photo and filming, video recording, including those that used by a person brought to administrative responsibility, or witnesses, as well as working in automatic mode, or means of photography and filming, video recording, including those used by a person brought to administrative responsibility, or witnesses, as well as working in automatic mode or in the mode of photography (video recording), which are used in monitoring the implementation of rules, norms and standards relating to road safety and parking of vehicles, the act of inspection and temporary detention of the vehicle, the protocol on seizure of things and documents, and other documents . The burden of gathering evidence rests with the persons authorized to draw up reports on administrative offenses set forth in Article 255 of this Code.

According to Part 1 of Article 247 of the Code of Administrative Offenses of Ukraine, proceedings in the case of an administrative offense may not be initiated, and initiated shall be closed in the following circumstances: the absence of the event and the composition of the administrative offense;

The above norms indicate that it is possible to bring a person to administrative responsibility only if the actions of an administrative offense, namely the object, the objective party, the subject and the subjective party, are established in his actions. The entity authorized to draw up the report, in our case the officials of the National Police of Ukraine, must collect evidence and prove the existence of all signs of an administrative offense.

Thus, in the absence of the subjective side of the administrative offense, in particular the guilt of the person, the proceedings in the case of an administrative offense is closed in the absence of an administrative offense.

 The actions of a person do not contain the subjective side of the administrative offense provided for in part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine, based on the following.

The composition of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine provides for the existence of intent in the late submission without good reason of the declaration of a person authorized to perform state or local government functions.

In particular, the Supreme Specialized Court of Ukraine for Civil and Criminal Cases in its letter “ On bringing to administrative responsibility for certain offenses related to corruption “ dated 22.05.2017 № 223-943/0/4-17 noted that sub the objective side of the offense is characterized by the presence of guilt in the form of direct or indirect intent; committing this act through negligence precludes bringing a person to administrative responsibility.

The Constitutional Court of Ukraine in its decision of October 6, 2010 in the case №1-27/2010, where it noted: “In determining the legal term “corruption” (paragraph five of the first part of Article 1 of the Law № 1506) (1506-17) contains such a feature of the act as promises / offers of such benefit for themselves or others ”.

The conclusion that there was an intentional form of guilt in the actions of a person in committing an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine is consistent with case law, in particular the Kyiv Court of Appeal in its decision of March 16, 2020 in case № 758/1428/19 noted the following:

To resolve the issue of guilt PERSON_1 in committing the incriminated offenses, which are covered by one qualification, the court had to establish whether he is subject to liability under the Law of Ukraine “ On Prevention of Corruption “, why he filed late declarations for 2017 and before dismissal, establish that such actions PERSON_1 have intentional nature and find out all other circumstances, which confirm the presence or absence of all signs of an administrative offense related to corruption, under Part. 1 Article 172-6 Code of Ukraine on Administrative Offenses ».

The Pechersk District Court of the city of Kyiv in its decision of August 10, 2018 in the case № 757/29393/18-n noted:

“The Constitutional Court of Ukraine also draws attention to the intentional form of guilt, as well as the presence of the relevant selfish or other personal interest of a person or the interest of third parties, as mandatory signs of a corruption offense in the decision of 06.10.2010 (case № 1-27/2010).

However, in the materials of the administrative case there is no evidence that would confirm the presence in the actions of PERSON_3 intent to violate the requirements of financial control, which is confirmed in particular by written explanations of PERSON_3 “.

Sosnivsky District Court of Cherkasy in its decision of December 27, 2018 in the case № 712/15439/18 noted the following:

“Consequently, the analysis of these rules leads to the conclusion that the offense under Part 2 of Art. 172-6 of the Code of Administrative Offenses of Ukraine is a formal, obligatory element of its objective party is a deliberate action, ie intentional failure to notify or untimely notification of significant changes in property status, and therefore, the body authorized to draw up a report on an administrative offense and the prosecutor receiving participation in the consideration of such protocols by the court, obliged to prove to the court the presence in the actions of the person prosecuted for the commission of this administrative offense, intent to fail to notify or late notification of significant changes in property status.

Based on the above, it can be stated that liability for committing an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine occurs only in the presence of an intentional form of guilt in the actions of the person committing the administrative offense.

In the actions of a person regarding the late submission of the annual declaration, there is no intention to such submission, justifying it as follows.

The submission of the annual declaration for 2016 on March 29, 2017, and the annual declaration for 2018 only on April 10, 2019 is due to the fact that the client considered that he is not the subject of the declaration, as the law does not define who are officials of a legal entity under public law.

There is no intent in the action, as the person considered that he was not the subject of the declaration and was obliged to file an annual declaration. He did not file a declaration for 2018 because he knew that other companies that are required to file annual declarations report this obligation. And these persons must confirm the fact of their notification that they are the subjects of the declaration, with their signatures. However, no one informed him that he was the subject of the declaration and the obligation to file an annual declaration. These facts indicate that the actions of the person have no intention of late submission of the annual declaration for 2018.

This conclusion, namely the failure to notify the person that he is the subject of the declaration, and the obligation to file an annual declaration, indicates a lack of intent in the actions of the person not to submit the declaration, in connection with which there is no administrative offense part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine, fully complies with the established legal position of the Supreme Court, in particular the Criminal Court of Cassation of the Supreme Court in its decision of 10 September 2019 in case № 200/18903/17 stated the following:

“Thus, to bring a person to criminal responsibility under Art. 366-1 of the Criminal Code must be established and proved that the person authorized to perform the functions of state or local government, knew about the obligation to file a declaration under Art. 45 of the Law of Ukraine “ On Prevention of Corruption “, on the deadline for its submission, but consciously for any reason decided not to submit a declaration and deliberately did not submit it.

 The prosecution did not provide reliable and convincing evidence that PERSON_1 knew about the obligation to file a declaration under Part 2 of Article 45 of the Law “ On Prevention of Corruption “ on the day of release, or before release or on the day of release was notified by the state body, in which he worked, on the need to file a declaration upon dismissal, or received a notification from the NAPC on the fact of failure to file a declaration. “

The following case law confirms this conclusion

In its ruling of 16 March 2020 in case № 758/1428/19, the Kyiv Court of Appeal stated the following:

“Given that the actions covered by the disposition of Part 1 of Article 172-6 of the Code of Administrative Offenses must be intentional, to bring a person to justice under this rule of law must be established and proved that a person authorized to perform state or local government functions , knew about the obligation to submit the declaration provided by Art. 45 of the Law of Ukraine «About prevention of corruption», about term of its submission, however for any reasons decided not to submit the declaration and intentionally didn’t submit it.

 This conclusion of the Court of Appeal is consistent with the position of the Supreme Court set out in the Decision of September 10, 2019 (case № 200/18903/17).

 Summarizing the above, the appellate court notes that both during the proceedings in the court of first instance, and at the time of its consideration by the appellate court did not receive any evidence that PERSON_1 was aware that he is the subject of the declaration and knew about the need submit a declaration both for 2017 and for the period from January 1, 2018 to January 28, 2018.

In view of the foregoing, the appellate court finds that in this proceeding not proved the commission PERSON_1 administrative offenses related to corruption, responsibility for which is provided h.1 Article. 172-6 of the Code of Administrative Offenses of Ukraine, so it is subject to closure for lack of his actions composition administrative offense “.

Vyzhnytskyi District Court of Chernivtsi region in its decision of 28.08.2018 in case № 723/2193/18 stated the following:

“The composition of the offense under Part 2 of Article 172-6 of the Code of Administrative Offenses is formal, as a mandatory element of the objective party is a deliberate action – intentional failure to notify or late notification of significant changes in property status. Therefore, the body authorized to draw up a report on an administrative offense must prove in the actions of the person intent not to notify or late notification of significant changes in property status. The subjective side of this offense is characterized by the presence of guilt in the form of direct or indirect intent, the commission of this act through negligence precludes bringing a person to administrative responsibility.

 The court notes that the report on the administrative offense does not provide justification and evidence to confirm the subjective side of the offense. That is, the guilt in the form of intent, motive (selfish, personal interest, misunderstood interests of the service, etc.) and the purpose of the offense charged against it have not been established and proved.

 Thus, analyzing the evidence collected in the case in their entirety, the court concludes that any evidence that PERSON_1 acted intentionally, aware of the illegal nature of their actions, which encroaches on the established law and order, in the case file on administrative offense are absent.

Given the above case law, as well as the obligation of officials of the National Police of Ukraine, as authorized to draw up reports on administrative offenses, to collect evidence to prove the guilt of a person prosecuted, it is obvious that if the guilt is not established, and failure to provide evidence of such guilt, the person’s actions do not constitute an administrative offense, and therefore the proceedings are subject to closure.

According to Part 3 of Article 62 of the Constitution of Ukraine, the accusation cannot be based on evidence obtained illegally, as well as on assumptions. All doubts about the guilt of a person are interpreted in his favor.

The European Court of Human Rights, in its judgment of 21 April 2011 in Nechiporuk and Yonkalo v. Ukraine and in its judgment of 6 December 1998 in Barbera, Messege and Jabardo v. Spain, ruled that “in assessing the evidence, the court any reasonable doubt “and such” proof may follow from a set of signs or irrefutable presumptions, sufficiently weighty, clear and consistent with each other. “

In accordance with 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 in the case “Kobets v. Ukraine” of 14.02.2008, the evidence must, in particular, follow from a set of signs or irrefutable presumptions. clear and coherent, and in the absence of such indications it cannot be stated that the guilt of the accused has been proved beyond a reasonable doubt.

Given the provisions of the Constitution of Ukraine and the case law of the European Court of Human Rights, it is obvious that in order to bring a person to administrative responsibility under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine it is necessary to prove intent. However, these arguments concerning the lack of intent in the actions, the latter’s failure to notify that he is the subject of the declaration, and the obligation to file an annual declaration, as well as the absence of any evidence in the case file of evidence of intent not to file an annual declaration , it is proved that in actions of the person there is no structure of the administrative offense provided by part 1 of article 172-6 of the Code on administrative offenses of Ukraine.