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WHAT TO DO WHEN IT BOTHERS NATIONAL ANTI-CORRUPTION AGENCY?

Recently, the National Agency for the Prevention of Corruption has intensified its activities, including the following: the income tax return 2017 ( electronic declaration 2018 ), the income tax return 2018 ( electronic declaration 2018 ), the electronic declaration 2019 . In a word, each declaration of income of a civil servant is filed for the last 3 years.

The most common violation detected by NAPC employees is the violation of the deadlines for filing electronic declarations, as a result of drawing up a report on corruption. However, it should be remembered that the decision to prosecute is not made by the NAPC, but by the court.

Therefore, in case of detection of corruption offenses, the list of which is provided by Chapter 13-A of the Code of Administrative Offenses of Ukraine, we recommend to contact a specialist in protection in the field of corruption offenses, including, in particular:

Article 172-4. Violation of restrictions on combination and combination with other activities

Article 172-5. Violation of statutory restrictions on the receipt of gifts

Article 172-6. Violation of financial control requirements

Article 172-7. Violation of the requirements for the prevention and settlement of conflicts of interest

Article 172-8. Illegal use of information that became known to a person in connection with the performance of official or other statutory powers

Article 172-9. Failure to take measures to combat corruption

Article 172-9-1. Violation of the ban on placing sports bets related to the manipulation of official sports competitions

Article 172-9-2. Violation of legislation in the field of environmental impact assessment

The most common, however, is the practice of drawing up protocols under Art. 172-6 Kupap, the commentary on the application of which is not yet fully spelled out, which causes some difficulties in the application of protection by a lawyer for corruption.

The Code of Ukraine on Administrative Offenses provides a list of administrative offenses related to corruption, but in this article we will focus only on the analysis of the grounds for appealing the protocol on administrative offenses drawn up for violation of financial control, which consisted of late submission without good reason to perform the functions of the state or local government (Article 172-6 of the  Code of Administrative Offenses ).

In this case, the legislator establishes the absence of valid reasons for late submission of the declaration as a fundamental element of the offense. Thus, good reasons mean the inability of a person to file a timely declaration due to illness, medical treatment, due to natural disasters (floods, fires, earthquakes), technical failures of the official website of the National Agency for Prevention of Corruption, demand information, necessary for inclusion in the declaration, stay (detention), etc.

At the same time, an administrative penalty for committing an administrative offense related to corruption may be imposed within three months from the date of detection, but not later than two years from the date of its commission (Part 3 of Article 38 of the Code of Administrative Offenses). Extension of the term of imposition of administrative penalties is not provided by law, so in case of their termination, the proceedings are subject to closure. If at the time of consideration of the case in court the terms of bringing a person to administrative responsibility have expired, the court in case of denial of his guilt or the presence in his actions of an administrative offense must investigate all the circumstances of the case, determine whether the act contains signs and composition of an administrative offense. also whether the person belongs to the subjects of this offense, whether he is guilty of its commission,

It should be noted that the legislation also does not provide for the period of time after the discovery of an administrative offense related to corruption, the authorized entity must draw up a report.

If, during the resolution of the issue of drawing up a report on the commission of an administrative offense related to corruption, a person resigns voluntarily from a position related to the performance of state or local self-government functions, he / she may not be dismissed due to involvement in administrative liability.

According to Art. 277 of the Code of Administrative Offenses, the case on an administrative corruption offense is considered within fifteen days from the date of receipt by the court of the protocol on the administrative offense and other case materials. This term is suspended by the court if the person against whom a report on an administrative corruption offense has been drawn up intentionally evades appearing in court or for valid reasons cannot appear there (illness, business trip or medical treatment, leave, etc.). However, the legislator has not determined whether the term of imposition of an administrative penalty is also suspended.

Part 2 of Art. 268 КУпАП the obligatory presence during consideration of case of the person who is brought to administrative responsibility according to Art. Art. 172-4 – 172-9 КУпАП. In case of evasion from appearing at the summons of the body of internal affairs or a judge of a district, city district, city or city district court, this person may be subjected to compulsory detention.

In accordance with paragraph 3 of the  decision of the Plenum of the Supreme Court of Ukraine of 25.05.98 № 13 “On the practice of court proceedings on corruption and other offenses related to corruption”  in cases of this category, courts must clarify in each case such question: whether there was an offense for which a person is prosecuted; whether the act contains a corpus delicti provided by law; whether the person is guilty of its commission; whether it belongs to the subjects of this offense; whether the offense contains signs of a crime; whether the terms provided by Art. 38 КУпАП; whether there are other circumstances that preclude proceedings in the case.

Judicial practice for the late submission of this declaration is also ambiguous today, and the application of Article 38 of the Code , regarding the closure of administrative proceedings after the expiration of the term of prosecution , is also ambiguous .

Therefore, only an expert who understands the issues of protection of corruption offenses can objectively determine the time of detection of corruption offenses , a particular day of detection of an administrative offense , the statute of limitations corruption offense , to further appeal the protocol on corruption , subject to the provisions of Article 172 6 CAO , given that the case law  ambiguous and the terms of prosecution are interpreted differently.

In case of inadequate protection and ignorance of one’s rights as a person against whom a report on an administrative corruption offense has been drawn up, it can lead to negative consequences.

Thus, the protocol on corruption has consequences , in particular, in accordance with part one of  Article 65 of the Law of Ukraine “On Prevention of Corruption”  (hereinafter – the Law) for committing corruption or corruption-related offenses to criminal, administrative, civil and disciplinary liability in the manner prescribed by law. That is, liability for corruption offenses can be criminal liability for corruption offenses , administrative liability for corruption offenses and disciplinary liability for corruption offenses.

The procedure for bringing civil servants to disciplinary responsibility is defined by the Law of Ukraine “On Civil Service”. Pursuant to Article 64 of the said Law, a civil servant shall be subject to disciplinary liability for non-performance or improper performance of official duties specified by this Law and other normative legal acts in the field of civil service, job description, as well as violation of ethical conduct and other breaches of official discipline. in the manner prescribed by this Law.

In accordance with Article 69 of the Law of Ukraine “On Civil Service” to conduct disciplinary proceedings to determine the degree of guilt, nature and gravity of the disciplinary offense, a disciplinary commission is formed to consider disciplinary cases (hereinafter – the disciplinary commission). The Disciplinary Commission in respect of civil servants holding civil service positions of category “A” is the Commission. The Disciplinary Commission in respect of civil servants holding civil service positions of categories “B” and “C” is formed by the head of the civil service in each state body.

At the same time, in accordance with part three of Article 65 of the Law, in order to identify the causes and conditions that contributed to the commission of a corruption or corruption-related offense or failure to comply with the requirements of this Law, at the request of a specially authorized by order of the National Agency by the decision of the head of the body, enterprise, institution, organization in which the person who committed such an offense works, an official investigation shall be conducted in accordance with the procedure established by the Cabinet of Ministers of Ukraine.

The procedure for conducting an official investigation into persons authorized to perform state or local self-government functions and persons who are equated to persons authorized to perform state or local self-government functions for the purposes of the  Law of Ukraine “On Prevention of Corruption” was  approved  by the Cabinet of Ministers of 13.06. 2000 № 950  (as amended by the resolution of the Cabinet of Ministers of Ukraine of 13.09.2017 № 691).

It should be understood that liability for corruption, including liability for acts of corruption, liability for corruption offenses, liability for corruption or corruption-related offenses, liability for corruption offenses, liability for corruption or corruption-related offenses are outwardly identical , however, have a different legal basis. That requires perfect knowledge in this area.

We draw your attention to another positive court decision made in the interests of the client of JSB “PRIKHODKO & PARTNERS”. Thus, once again the proceedings in the case of bringing to administrative responsibility for committing an administrative offense under Part 1 of Art. 172-6 КУпАП is closed, in connection with the expiration of term of bringing of the person to administrative responsibility.

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