TIMELY SUBMISSION OF ANNUAL ELECTRONIC DECLARATION. WHAT THREATENS?

A client who is an official of a state-owned enterprise applied to the law firm Prikhodko & Partners. A report was drawn up against him for committing an administrative offense for late submission of the annual electronic declaration.

 This protocol was sent to the court for consideration of the case on bringing the person to administrative responsibility. Lawyers of JSB "Prikhodko and Partners" objected to this protocol, in which they referred to the impossibility of prosecution due to the lack of the necessary features of the administrative offense under Article 172-6 of the Code of Administrative Offenses.

≡ Arguments of the defense

 First, liability arises only in the case of an act that is provided by the Code of Administrative Offenses. In order to impose an administrative penalty on a person, it is necessary to establish the presence in the actions of the person provided by law the necessary elements of the administrative offense. Such elements include the object, the objective side, the subject and the subjective side of the offense. The entity authorized to draw up the report must prove the presence of the above elements in the actions of the person. The subjective side of an administrative offense presupposes the guilt of a person, which in turn can be of two types: intent and negligence. If we talk about an administrative offense under Art. 172-6 Code of Ukraine on Administrative Offenses, this offense is committed in the presence of intent in the actions of the person.

 In the absence of intent to submit an electronic declaration in a timely manner, it is not possible to speak of a person committing the above-mentioned offense.

 The Constitutional Court of Ukraine, in particular, stated in its decision of October 6, 2010 in case № 1-27 / 2010 that it intentionally acted in the commission of a corruption offense, for which the law provides for criminal, administrative, civil and disciplinary liability.

" The definition of the legal term "corruption" (paragraph five of the first part of Article 1 of Law № 1506) (1506-17) contains such a sign of action as" the use of a person's official powers and related opportunities to obtain illegal benefit or acceptance of a promise / offer of such benefit to oneself or others ”.

 That is, in order to bring our client to administrative responsibility, it is necessary to establish in his actions the presence of intent to late submission of the annual electronic declaration. However, every person who is obliged to submit an electronic declaration must be warned that he is the subject of the declaration and is obliged to submit a declaration. If the person has not been warned that he is the subject of the declaration, the actions of the person have no intention of late submission of the electronic declaration, because he did not know about his obligation to submit the declaration. This conclusion is consistent with case law, in particular the Kyiv Court of Appeal in its decision of March 16, 2020 in the case № 758/1428/19 noted the intentional nature of the actions provided for in the disposition of Part 1 of Article 172-6 of the Code of Administrative Offenses, and noted the necessary condition for person to responsibility - warning the person about the obligation to file a declaration.

 Our client, who holds a position in a legal entity under public law, was not warned about the need for him to file a declaration, therefore, his actions have no intention of late submission of the annual electronic declaration, and therefore there is no administrative offense. In this regard, the proceedings in the case of an administrative offense are subject to closure in the absence of an administrative offense.

 If you have filed an electronic declaration late or have not filed it, and a report on an administrative offense has been drawn up against you, seek protection from professionals who know how to counteract illegal actions of authorized entities in the field of anti-corruption.