PROTECT YOURSELF OR FIND A CORRUPTION LAWYER? (PART TWO)

REGARDING PROCEDURAL VIOLATIONS BY THE SENIOR SUPERVISORY POLICE CAPTAIN

 2.1. Regarding exceeding the powers provided by the legislation by the senior operative

According to the Law of Ukraine “ On Prevention of Corruption “, specially authorized entities in the field of anti-corruption are the prosecutor’s office, the National Police, the National Anti-Corruption Bureau of Ukraine, the National Agency for Prevention of Corruption.

According to Article 255 of the Code of Administrative Offenses of Ukraine, the bodies of internal affairs (National Police) have the right to draw up reports on administrative offenses under Articles 172-4 – 172-9.

At the same time, the Department of Strategic Investigations of the National Police of Ukraine does not have the right to conduct inspections of compliance with anti-corruption legislation.

According to paragraph 6 of part 1 of Article 12 of the Law of Ukraine “ On Prevention of Corruption “, the National Agency for Prevention of Corruption in order to fulfill its powers has the following rights: to receive applications from individuals and legal entities on violations of the Law; violation of the requirements of this Law.

In accordance with Part 1 of Article 48 of the Law of Ukraine “ On Prevention of Corruption “, the National Agency conducts the following types of control over declarations submitted by declarants:

1) on the timeliness of submission;

2) on the correctness and completeness of filling;

3) logical and arithmetic control.

Pursuant to Part 2 of Article 49 of the Law of Ukraine “ On Prevention of Corruption “, state bodies, authorities of the Autonomous Republic of Crimea, local governments, as well as legal entities under public law are obliged to verify the fact of filing declarations by their employees. or are or were members of the competition commission formed in the body, the Public Integrity Council), in accordance with this Law declarations and notify the National Agency of cases of non-submission or late submission of such declarations in the manner prescribed by it.

Pursuant to Part 3 of Article 49 of the Law of Ukraine “ On Prevention of Corruption “, if the control results establish that the declaring entity has not filed a declaration, the National Agency shall notify such entity in writing of the fact of failure to file a declaration. days from the date of receipt of such notice to submit a declaration in the manner prescribed by part one of Article 45 of this Law. At the same time, the National Agency notifies in writing the fact of non-submission of the declaration to specially authorized entities in the field of anti-corruption, as well as to the head of state body, authority of the Autonomous Republic of Crimea, local government, union, another non-entrepreneurial company on the fact of failure to file a declaration by the relevant subject of declaration.

 Thus, a special law regulating the prevention of corruption stipulates that the right to conduct inspections of compliance with anti-corruption legislation belongs exclusively to the National Agency for the Prevention of Corruption and not to other specially authorized entities in the field of anti-corruption. It is the National Agency for the Prevention of Corruption that notifies specially authorized entities in the field of anti-corruption, in our case the bodies of the National Police of Ukraine, when a person detects the fact of non-submission or late submission of a declaration. The bodies of the National Police of Ukraine are not authorized to carry out activities to identify violations of the legislation on the prevention of corruption, including the timeliness of submission of the annual declaration. Thus, the above indicates that the senior operative went beyond his powers under the law.

This conclusion is consistent with the case law, in particular the Sosnivsky District Court of Cherkasy in its decision of December 27, 2018 in the case № 712/15439/18 noted the following:

«In the protocol on administrative offense from 11.12.2018 year the chief of sector of counteraction to corruption management of protection of economy in the Cherkassk area of ​​Department of protection of economy of National police of Ukraine PERSON_4 noted that I made the protocol with observance of requirements of Art. 254-256 of the Code of Administrative Offenses, which gives him the right to do so, and then send the case to court. However, any bodies (legal entities) of the National Police of Ukraine do not belong to the subjects that have the right to check both declarations and changes in the property status of the subjects of declaration. Such powers are vested exclusively in employees of the structural unit of the NAPC staff, whose activities are related to the implementation of such a function. Officials of the National Police have the right, only in case of establishing the fact of non-submission of the declaration, by the declaring subject, after receiving a written notification from the NAPC, as a special authorized entity in the field of anti-corruption, to draw up a report on an administrative offense. However, only the NAPC has the right to obtain an explanation from such a person on the basis of a letter and to resolve issues concerning his / her inspection prosecution.

 Thus, law enforcement officials, by inspecting a person as a subject of declaration, and drawing up a report without a corresponding request (order) from the NAPC, go beyond their powers and act outside the current legislation. “

In accordance with paragraph 1 of section V of the Procedure for conducting inspections by the National Agency for Prevention of Corruption, based on the results of the inspection, an act of scheduled (unscheduled) inspection of compliance with the Law of Ukraine “ On Prevention of Corruption “ is drawn up.

Pursuant to paragraphs 1 and 2 of Section VI of the Procedure for Inspections by the National Agency for Prevention of Corruption, the inspection report with the draft decision provided for in paragraph 9 of Section VI of this Procedure and materials confirming the facts of offenses shall be submitted to the next meeting of the National Agency. Based on the results of the review, the National Agency for the Prevention of Corruption may decide to: send an opinion on the presence of signs of corruption or corruption-related offenses to specially authorized entities in the field of anti-corruption.

That is, only after an inspection by the National Agency for the Prevention of Corruption and sending the agency’s opinion to specially authorized entities in the field of anti-corruption (including the National Police), the latter have the authority to draw up a report on an administrative offense.

The European Court of Human Rights, in deciding on a fair trial, applies the concept of “poisoned tree fruit”, ie the assessment of the admissibility of the whole chain of evidence, based one after another, and each individual piece of evidence independently. Nevertheless, the ECtHR proceeds from the fact that if one piece of evidence is inadmissible in a single chain, the court must in such a case decide on the fairness of the trial as a whole, as exemplified by the decisions in Khan v. The United Kingdom and Yaremenko v. Ukraine.

 Given the above, in the absence of an opinion of the National Agency for Prevention of Corruption and the lack of authority of the National Police to independently identify violations and verify compliance with anti-corruption legislation, the protocol drawn up by the Senior Officer is inadmissible evidence. Due to the fact that the only evidence of a possible commission of an administrative offense is inadmissible, the proceedings on the case of an administrative offense against a person must be closed in the absence of an administrative offense.

2.2. For other procedural violations by the senior operative, the police captain

 In accordance with part 1, 2 of Article 254 of the Code of Administrative Offenses of Ukraine, a report on the commission of an administrative offense is drawn up by an authorized official or a representative of a public organization or body of public initiative. The report on an administrative offense, if drawn up, shall be drawn up no later than twenty-four hours from the date of identification of the person who committed the offense, in two copies, one of which shall be handed to the person prosecuted.

The senior operative captain of the police found a person who allegedly committed an administrative offense on March 27, 2020, as stated in the report of March 27, 2020, which is contained in the materials of the proceedings. Thus, in compliance with the requirements of Article 254 of the Code of Administrative Offenses of Ukraine, he had to draw up a report on an administrative offense no later than March 29, 2020. However, the senior operative captain of the police drew up a report on June 16, 2020, which violated the mandatory norms of the Code of Administrative Offenses of Ukraine.

REGARDING THE TERMS OF ADMINISTRATIVE RESPONSIBILITY

 In accordance with Part 4 of Article 38 of the Code of Ukraine on Administrative Offenses (as amended at the time of the offense), administrative penalty for committing an offense related to corruption, as well as offenses under Articles 164-14, 212-15, 212-21 of this Code, may be imposed within three months from the date of its discovery, but not later than two years from the date of its commission.

Thus, in the case of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine, a penalty may be imposed no later than three months from the date of its detection, but not later than two years from the date of its commission.

The day of detection of an administrative offense provided for in part 1 of Article 172-6 of the Code of Ukraine on Administrative Offenses is the day of drawing up a report on the detection of this offense.

The date of drawing up the protocol on an administrative offense is not the day of detection of the administrative offense provided by part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine.

This conclusion is consistent with case law

The Ustynivsky District Court in the decision of 29.01.2019 in the case №403/375/18 stated: therefore, the information contained therein regarding the date of detection of the offense (June 7, 2018) is refuted by the evidence attached to the protocol. “

The Ternopil City District Court in the decision of 13.02.2019 in the case №607/26355/18 was noted: “The actual moment of detection of committed PERSON_1 administrative offenses related to corruption under Part 1 of Article. 172-6 Code of Ukraine on Administrative Offenses, is October 26, 2018, which is approved by the stamp of incoming correspondence, which is contained in the notification of the Department of Verification of Declarations and Monitoring of the NAPC Lifestyle Thus, the Court emphasizes that the moment of actual detection of an administrative offense PERSON_1 can not be the date of compilation of these administrative protocols.

 The Ustynivsky District Court in its decision of 01.02.2019 in the case № 403/489/18 stated: “The fact of detection of an administrative offense related to corruption preceded the drawing up of the protocol №163/18 of 27.07.2018, and therefore the information set out in it, regarding the date of detection of the offense (July 27, 2018) is refuted by the evidence attached to the protocol. “

Skvyra District Court in the decision of 05.12.2017 year in the case № 376/2755/17 was stated: date of drawing up and signing of the protocol on September 25, 2017. “

The Court of Appeal of Kyiv region in the decision of 29.01.2018 № 379/1255/17 stated: “The conclusions of the court of first instance that the moment of detection of this offense should be considered the report of the operative department of crime prevention from 20.07.2017, the appellate court considers correct , as it is seen from the content of the specified report the official of police specifically specifies that PERSON_2, being the subject of responsibility for corruption offenses, committed the administrative offense provided by h. 4 Art. 172-6 Code of Ukraine on Administrative Offenses. At the same time, the report indicates the specific circumstances of the commission of this offense. “

The Solomyansky District Court of Kyiv in its decision of 08.02.2019 in case №760/187/19 stated: “However, the court does not agree with the conclusion of the NAPC, as it can be seen from the notification of the National Agency persons authorized to perform the functions of state or local government №07/29165/18 from 27.06.2018 year it is seen that the fact of late submission of PERSON_1 declaration was discovered on 27.06.2018 year. Therefore, the court considers the date of detection of administrative offenses to be June 27, 2018, ie the date of sending the notice. “

Thus, as stated in the court decisions, the day of detection of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine is the day of the report by the authorized person on the fact of committing an administrative offense. Thus, the day of detection of an administrative offense is the day of preparation of the report on detection of the offense, namely March 27, 2020.

 So, as we can see, the deadline for bringing to administrative responsibility, namely 3 months, has expired.

Given the above, namely, the absence in the actions of the client JSB “Prikhodko and Partners” of an administrative offense under Part 1 of Article 172-6 of the Code of Administrative Offenses of Ukraine, as well as the lack of authority to detect administrative offenses related to corruption, proved that the proceedings must be closed in the absence of an administrative offense.