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Once again, the NAPC’s actions were declared illegal

According to the protocol on administrative offense № 44-01 / 83/19 of February 13, 2019, the client of JSB “Prikhodko and Partners”, being a person subject to the requirements of the  Law of Ukraine “On Prevention of Corruption”  (hereinafter the Law), untimely notified the National Agency on the prevention of corruption on significant changes in property status, by entering information into the Unified State Register of declarations of persons authorized to perform the functions of state or local government (hereinafter – the Register), in connection with the purchase of 15.08.2018 vehicle KIA SORENTO, 2015 year of issue, worth UAH 625,000, than according to the NAPC committed an administrative offense related to corruption, provided for in part two of  Article 172-6 of the Code of Administrative Offenses .

 Thus, from the materials attached to the minutes, it can be seen that during the collection of materials on February 13, 2019, the client of JSB “Prikhodko and Partners” submitted written explanations to the authorized NAPC official with appendices, in which he referred to circumstances that objectively prevented him from submitting notification within the period prescribed by law, conscious actions to implement attempts to timely submit to the National Agency notification of significant changes in property status, in connection with the purchase of a vehicle KIA SORENTO, 2015 year, worth 625,000 UAH.
 Similar explanations and supporting documents were provided during the trial on the merits in court, and it was proved that the legal position of JSB “Prikhodko and Partners” is consistent and objectively confirmed by appropriate and admissible evidence.
 In particular, the body that drew up the protocol, contrary to the content of the protocol itself, was reliably aware of the measures taken on August 23, 2018 to submit a notice of changes in property status, ie by August 25, 2018, the deadline for such submission under the law. informed about the acceptance of such an application regarding the occurrence of technical problems of access to the register and the terms of consideration of such an application, further e-mail also explained the reasons for lack of technical access to the register and the algorithm of its actions to restore such access. It has been proven that acting in good faith, the person took the actions recommended by the NAPC to restore the technical feasibility of filing a notice and filed a notice of changes in property status.
 Thus, the information set out in the record on the existence of an objective side of the incriminated offense is refuted by the evidence examined by the judge and did not find objective confirmation when considering the law on the merits.
Given the above, we believe that during the sending of the protocol to the court and during the trial there was no convincing and admissible evidence of guilt of the person in committing the incriminated administrative offense.
According to Art. 9 of the Code of  Administrative Offenses, an administrative offense (misdemeanor) is a guilty (intentional or negligent) act or omission that encroaches on public order, property, rights and freedoms of a citizen, the established order of management and for which the law provides for administrative liability.
An administrative offense is considered to have been committed intentionally when the person who committed it was aware of the illegal nature of his action or inaction, foresaw its harmful consequences and wanted them or knowingly allowed the occurrence of these consequences, as defined in  Art. 10 КУпАП .
According to Art. 1 of the Law of Ukraine “On Prevention of Corruption”  under a corruption offense means an act that contains signs of corruption committed by a person specified in part one of  Art. 3 of this Law , for which the law establishes criminal, disciplinary and / or civil liability. In accordance with paragraph 9 of Art. 1 of the Law of Ukraine “On Prevention of Corruption” an  offense related to corruption is an act that does not contain signs of corruption, but violates the requirements, prohibitions and restrictions established by this Law, committed by a person specified in Part 1 of Art. 3 of the Law, for which the Law establishes criminal, administrative, disciplinary or civil liability.
The Code of Ukraine on Administrative Offenses stipulates that an administrative offense by its subjective properties is an act or omission committed with a specific purpose and for certain reasons. These organically interconnected, interdependent forms of mental activity create the content of the subjective side of the offense. Guilt is the mental attitude of a person in the form of intent or negligence to their actions and their consequences. Guilt is a prerequisite for administrative liability.
Intention – is the ratio of cognitive ability and will of the subject to the act committed by him. Its obligatory elements are full awareness of the illegality of the act in its legal and socio-domestic features, anticipation of the anti-social results of their actions (inaction), desire or conscious assumption of the occurrence of these consequences. Lack of intent and carelessness indicate a case – a coincidence of life circumstances in which a person did not realize and could not realize the properties of the act or did not anticipate and could not predict the consequences of the act. Accident and guilt are mutually exclusive categories, and therefore the commission of an act or omission is not a condition of administrative liability.
The subjective side of the administrative offense was characterized by the Supreme Court in its letter dated 22.05.2017 № 223-943 / 0 / 4-17 the presence of guilt in the form of direct or indirect intent under which Art. 10 of the Code of Administrative Offenses  means the commission of an administrative offense, when the person who committed it, was aware of the illegal nature of his action or inaction, foresaw its harmful consequences and wanted them or knowingly allowed the occurrence of these consequences.
Thus, when deciding on the presence in the actions of a particular person of an administrative offense related to corruption, among other things, it is necessary to take into account the presence of the subjective side of the offense, which based on the definition set out in Part 1 of  Art. 1 of the Law of Ukraine “On Prevention of Corruption” is always characterized by an intentional form of guilt, ie the essence of the offense is that a person who is legally obliged to take certain actions, but seeks to avoid it and thus achieve a certain goal.
The Judicial Chamber for Criminal Cases of the High Specialized Court of Ukraine for Civil and Criminal Cases in its information letter on bringing to administrative responsibility for certain offenses related to corruption of May 22, 2017, noted that the subjective side of the offense is characterized by guilt in the form of direct or indirect intent, the commission of this act through negligence precludes bringing a person to administrative responsibility.
From the explanations of the client JSB “Prikhodko and Partners”, which are confirmed by a set of relevant and admissible evidence, it is seen that the latter did not intend to evade timely notification of changes in property status, moreover, before the statutory deadline took measures to submit such notification, in case of technical impossibility of access to the register of declarations on the NAPC website, the NAPC reported, further took additional measures to ensure the submission of the notification, but due to additional measures it was able to do so only after the technical possibility of access to the register, namely four days after the expiration of the ten-day period provided by law, which is not a significant delay of such period.At the same time, the court considered such actions to be sufficient for the full implementation of the requirements of the current legislation, and the person’s behavior – conscientious fulfillment of its obligations.
According to Art. 10 of the Code of  Administrative Offenses, an administrative offense is considered to have been committed intentionally when the person who committed it was aware of the illegal nature of his action or inaction, foresaw its harmful consequences and wanted them or knowingly allowed these consequences to occur.
Thus, to bring to administrative responsibility under Part 2 of Art. 172-6 of the Code of Administrative Offenses,  it is necessary to establish the fact that the person was aware of the public danger of failure to take measures to prevent corruption, foresaw negative consequences and wanted such consequences, or was indifferent to their occurrence or deliberately allowed their occurrence.
The guilt of a person prosecuted must be proved by appropriate and sufficient evidence, and not based on assumptions, all doubts about the guilt of a person are interpreted in his favor ( Article 62 of the Constitution of Ukraine ).
Due to the principle of the presumption of innocence, valid in law, all doubts about the guilt of the person prosecuted are interpreted in his favor. Unproven guilt equates to proven innocence. All the facts established by the court together raise doubts about the fact of the offense and the legality of its fixation. The decision of the subject of power must be lawful and reasonable and cannot be based on assumptions and unverified facts.
Taking into account all the above circumstances, the court concluded that the actions of the client JSB “Prikhodko and Partners” lack a subjective side (guilt in the form of intent) of an administrative offense and the negative consequences of such actions.
According to the norm of  Art. 8 of the Constitution of Ukraine in Ukraine recognizes and operates the principle of the rule of law, which defines a person, his rights and freedoms as the highest value in the state, which makes it possible to restrict his rights and freedoms only in strict compliance with Ukrainian law and only in the presence of guilt.
In accordance with Part 2 of  Art. 7 of the Code of Administrative Offenses,  proceedings in cases of administrative offenses are carried out on the basis of strict observance of the law.
That is, a person may be held administratively liable only if his guilt in committing the offense is proved beyond a reasonable doubt, on the basis of appropriate and admissible evidence in accordance with the procedure established by law.
According to  Art. 245 КУпАП  tasks of proceedings in cases of administrative offenses are: timely, comprehensive, complete and objective clarification of the circumstances of each case, its resolution in strict accordance with the law, ensuring the implementation of the decision, as well as identifying the causes and conditions conducive to administrative offenses, crime prevention, education of citizens in the spirit of law enforcement, strengthening the rule of law.
According to  Art. 17 of the Law of Ukraine “On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights”, the  courts of Ukraine use the Convention and the case law of the European Court of Human Rights as a source of law.
According to the case law of the European Court of Human Rights, administrative offenses are criminal for the purposes of applying the Convention (see Ozturk v. Germany, judgment of 21 February 1984, §§ 52-54, Series A № 73; Lauko v. Slovakia, 2 September 1998, §§ 56-59, Reports of Judgments and Decisions 1998-VI, and the decision on admissibility in Rybka v. Ukraine. , application № 10544/03, dated 17 November 2009). The fact that the penalty imposed on the applicant by the court, a fine, was subsequently replaced by a remark cannot deprive him of the criminal offense in question (Lucianinov v. Ukraine).
Therefore, when considering a case for administrative prosecution, guarantees and principles of legality should be provided for the person being prosecuted.
According to the decision of the European Court of Human Rights of 20.09.2016 in the case “Karelin v. Russia” to recognize a violation of  Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms in terms of impartiality due to lack of prosecution in an administrative offense, as well as In view of the powers of the prosecutor defined by  Article 250 of the Code of Administrative Offenses , participation in the consideration of the prosecutor’s case as a party to the prosecution was ensured.
However, when considering the case of an administrative offense, the prosecution did not properly fulfill the obligation to prove the guilt of the person brought to administrative responsibility.
According to paragraph 43 of the judgment of the European Court of Human Rights of 14 February 2008 in the case of Kobets v. Ukraine (referring to the initial definition of this principle in Avsar v. Turkey, § 282) , in particular, it must follow from a set of signs or irrefutable presumptions, sufficiently weighty, clear and consistent with each other, and in the absence of such signs it cannot be stated that the guilt of a person has been proved beyond a reasonable doubt.
It should be noted that the prosecutor did not refute the information provided by the person and confirmed by written evidence that effective measures were taken to report significant changes in property within the statutory period, but did so for reasons beyond his control, namely the need to replace electronic key with electronic digital signature and technical problems of access to the NAPC site.
The lawyers of JSB “Prikhodko and Partners” convinced the court that in this case the guilt of the person was not proved in compliance with the criterion “beyond a reasonable doubt”.
In accordance with paragraph 1 of Part 1 of  Art. 247 КУпАП  proceedings in the case of an administrative offense can not be initiated, and initiated is subject to closure in the absence of the event and the composition of the administrative offense.
Given the above, based on the totality of the evidence, guided by Art. 172-6 ,  247 ,  283 ,  284 of the Code of Ukraine on Administrative Offenses, the  court ruled to  close the proceedings on the administrative offense against the client JSB “Prikhodko and Partners” under Part 2 of  Article 172-6 of the Code of Administrative Offenses of Ukraine due to lack of composition administrative offense.
   
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