Article 364 of CCU – Lawyer in a case of abuse of power or official position

Article 364 of the Criminal Code of Ukraine (CCU) regulates the liability of officials for intentional use of their power or official position contrary to the interests of the service, which caused significant harm to state and public interests, rights and freedoms of citizens or legal entities.

Objective and subjective aspects of the crime

A crime consists of: an act - the use by an official of power or official position contrary to the interests of the service, consisting in certain actions or inaction of the subject, in order to obtain any unlawful benefit for himself or another individual or legal entity; consequences that manifest themselves in causing significant harm to the legally protected rights, freedoms and interests of individual citizens, or to state or public interests, or to the interests of legal entities; a causal connection between the act and the consequences. The absence of one of the specified signs indicates the absence of the elements of a criminal offense provided for in Art. 364 of the Criminal Code.

The subjective side of the crime is direct intent. The person realizes that his actions contradict the interests of the service and cause harm, but knowingly commits them.

Official - an official or other authorized person who performs administrative and managerial or organizational and managerial functions.

Court decisions under Article 364 of the Criminal Code of Ukraine are often associated with:

1. Corruption crimes: for example, concluding fictitious contracts that cause significant losses to the state.
2. Misuse of budget funds: the use of state funds for private purposes, including for the benefit of third parties.
3. Improper performance of official duties: lack of control over subordinates or making illegal decisions.

Key aspects of court cases

1. Proving harm: significant harm can be material (financial losses) or non-material (violation of citizens' rights or reputational damage).
2. Intent: it must be proven that the official acted intentionally, aware of the consequences of his actions.
3. Causation: the court assesses whether the consequences were directly caused by the actions of the accused.

Examples from judicial practice

• Spending of budget funds: an official was convicted of concluding a contract for the supply of equipment at inflated prices, which caused losses to the state budget.
• Illegal use of property: the mayor of the city transferred municipal property to private ownership without legal grounds, causing losses to the community.
• Mismanagement: the head of a state-owned enterprise was held liable for abuse of power, which caused losses to the enterprise.
• The Resolution of the Supreme Court of Ukraine dated 27.10.2016 No. 5-99ks16 states that the disposition of Part 1 of Art. 364 and Part 1 of Art. 365 of the Criminal Code, which provides for liability for causing significant harm to the legally protected rights, freedoms and interests of individual citizens or to public or state interests, or the interests of legal entities, may constitute not only property damage, but also include manifestations of non-property damage, but only those that can receive property compensation (any damage of any nature can be considered as significant damage if it is subject to monetary valuation and, in accordance with such valuation, has reached the established amount).

The Supreme Court of Ukraine also indicated in the same decision that the verdict (resolution) must clearly establish and prove that it was the commission of a particular official offense that caused the relevant consequences. The calculation of their amount, in the court's opinion, must be duly confirmed (including by a civil lawsuit as confirmation of the fact and amount of real property damage) and must not cause doubt.

Problems in the application of Article 364 of the Criminal Code of Ukraine

1. Difficulty in proving intent: it is often difficult to prove that an official acted with the intention of causing harm.
2. Assessment of harm: courts may interpret “substantial harm” or “serious consequences” differently.
3. Political nature of cases: some cases have a political overtone, which complicates an objective review.

Recommendations for defense under Article 364 of the Criminal Code of Ukraine

1. Analysis of case materials: engage a lawyer to assess the validity of suspicions and analyze evidence.
2. Damage assessment: order an independent assessment to verify the amount of damage claimed by the investigation.
3. Appealing the actions of the investigation: in case of violation of rights during the pre-trial investigation, appeal the actions of the investigators in court.
4. Prove the absence of intent: provide evidence that the actions were performed within the scope of official duties and were not aimed at causing harm.

Conclusions. Article 364 of the Criminal Code of Ukraine covers serious offenses related to abuse of power. Case law confirms that a successful defense depends on a thorough analysis of the evidence, a correct assessment of the harm, and the professional work of the lawyer.

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