In the Generalization of Judicial Practice of Court Consideration of Cases of Corruption Administrative Offenses for 2015 and the first half of 2016, courts need to determine the time of the offense and the time of detection of the offense. This statement is due to the fact that the legislation does not provide what exactly should be considered the moment of detection of a corruption offense.
Also, according to the letter of the Supreme Specialized Court of Ukraine for Civil and Criminal Cases “On bringing to administrative responsibility for certain offenses related to corruption” it is noted that to determine the beginning of the statute of limitations for bringing a person to administrative responsibility for an administrative offense, related to corruption, both the day of the commission and the day of detection of the offense play an important role.
The NAPC has a practice according to which the actual moment of detection of an offense should be considered the date of clarification of all necessary data and drawing up a report on an administrative offense.
Pursuant to paragraph 2 of Section 2 of the Procedure for Control and Full Verification of the Declaration of a Person Authorized to Perform State or Local Self-Government Functions, the NAPC controls the timeliness of submission of declarations on the basis of, inter alia, self-detection by the National Agency. according to the Register. It was on this basis that the fact of untimely submission of declarations by one of the clients of JSB “Prikhodko and Partners”, the chief specialist of the department for control over the timeliness of submission of declarations of the Declaration Verification and Lifestyle Monitoring Department of NAPC, was revealed.
Further analysis of the protocol gives grounds to state that: “The person submitted the declaration only after his notification to the NAPC by letters dated 29.11.2018 № 44-01 / 57729/18 and № 44-01 / 57730/18 on the fact that he did not submit this declaration.” Thus, based on the analysis of the protocol, we conclude that the NAPC became aware of the fact of failure to file a declaration no later than the date of notification of the person’s failure to file a declaration, as evidenced by the date of outgoing correspondence in the above letters contained in the case file.
This is the position of the court practice in cases of bringing to administrative responsibility under Article 172-6 of the Code of Administrative Offenses, in particular:
- The Ustynivsky District Court in its decision of 29.01.2019 in case № 403/375/18 stated: “the judge found that the fact of detection of an administrative offense related to corruption preceded the drawing up of protocol№ 106/18 of 07.06.2018, and 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 stated: “The actual moment of detection of committed PERSON_1 administrative offenses related to corruption under Part 1 of Art. 172-6 КУпАП , 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 Lifestyle of the NAPC. 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 the 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 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 in the case № 376/2755/17 was stated: 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: 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 КУпАП. At the same time, the report indicates the specific circumstances of the commission of this offense. “
- The Solomyansky District Court of Kyiv in the decision of 08.02.2019 in the case № 760/187/19 stated: “However, the court does not agree with the conclusion of the NAPC, because as can be seen from the notification of the National Agency persons authorized to perform the functions of the 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 as June 27, 2018, ie the date of sending the notice. “
Thus, we can talk about the established practice of the courts that the moment of detection of an offense under Part 1 of Article 172-6 of the Code of Administrative Offenses is not the date of the protocol, but the date when the authorized entity learned of failure to submit a declaration, ie sending notification in accordance with Part 3 of Article 49 of the Law of Ukraine “On Prevention of Corruption”.
According to Part 3 of Article 38 of the Code of Administrative Offenses, an administrative penalty for committing an offense related to corruption may be imposed within three months from the date of its detection, but not later than two years from the date of its commission. Paragraph 7 of Article 247 of the Code of Administrative Offenses provides that the proceedings in the case of an administrative offense shall be closed if at the time of the case the term provided for in Article 38 of the Code of Administrative Offenses has expired.
According to the Resolution of the Plenum of the Supreme Court of Ukraine “On the Practice of Court Consideration of Cases of Corruption and Other Offenses Related to Corruption” № 13 for timely, comprehensive, complete and objective investigation of the circumstances of the courts such issues, in particular whether the terms provided for in Art. 38 КУпАП.
As the actual moment of detection of the offense committed by the client of JSB “Prikhodko and Partners” under Part 1 of Article 176-2 of the Code of Administrative Offenses is 11/29/2018 (the date of sending the notice of non-submission of the declaration), as of April 2, 2019, three months have passed detection within the meaning of Article 38 of the Code of Administrative Offenses, and therefore the proceedings are subject to closure in connection with the expiration of the administrative penalty.
In addition, in accordance with paragraph 3 of the Opinion of the Scientific Advisory Board at the Supreme Administrative Court of Ukraine “On establishing the guilt of a person during the closure of proceedings on administrative offenses in connection with the expiration of administrative proceedings”, during the closure of proceedings on administrative the offense in connection with the expiration of the terms of bringing to administrative responsibility provided by Article 38 of the Code of Administrative Offenses, the guilt of the person is not established.