CRIMINAL LIABILITY FOR CORRUPTION OFFENSES
The problem of corruption is one of the most pressing in the world. A BBC poll found corruption to be the most talked about issue in the world. However, the magnitude of the corruption component in the activity of governmental structures, the private sector of our country’s economy is simply astounding. The main argument and mouthpiece of the fight against corruption is criminal liability for committed corruption offenses.
Corruption is not a new problem for our country. Ukraine ranked 131st out of 176 countries in the WRI World Rankings. This stage was shared with us by Kazakhstan, Russia, Nepal and Iran.
The magnitude and destructive impact of corruption on the ideals of democracy, human rights and freedoms have left Ukraine far behind (as an economic, political, social, cultural, etc.) as a young country. the recent problems of the drug business, the arms trade, and even the topic of terrorism that is so painful today. Corruption is the cornerstone of the prosperity of the shadow economy, is extremely hindering the economic development of the state and is prone to destroying the foundations of free enterprise on the principles of fair competition.
However, despite a rather lengthy debate in the circles of theorists and practitioners, there are many problematic issues related to corruption offenses and accountability. Yes, it should be understood that, in the understanding of the Ukrainian legislature and international experience on the above issue, it is still a part of corruption, which should be understood as corruption offenses, and what are the criminal consequences of their perpetration from the point of view of national legislation.
Article 1 of the Law on Prevention of Corruption refers to the use by persons indicated and listed in the relevant normative act of their official powers or related opportunities for the purpose of obtaining an unlawful benefit or accepting such a benefit or making a promise / offer himself or other persons or, as a result, a promise / offer or misappropriation of the said person, or at his request to other natural or legal persons for the purpose of persuading that person to misuse her authority data and related opportunities.
The law operates with two terminologically similar concepts: “corruption offense” and “corruption offense”. It determines that a corruption offense should be understood as an act containing signs of corruption committed by a person specified in the law for whom criminal, disciplinary and / or civil liability is established by law.
Considering the current incomplete format of the domestic legislation in the sphere of criminal offenses, which is discussed in the current Criminal Procedure Code of Ukraine, corruption offenses for which criminal responsibility is provided, are understood as corruption offenses.
Specific provisions of the UN Convention against Transnational Organized Crime of 15 November 2000, the Criminal Convention for the Suppression of Corruption (ETS 173) of 27 January 1999 (Strasbourg) (ratified by Ukraine on 18 October 2006) are addressed in the interpretation of corruption offenses, The Civil Convention against Corruption (ETS 174) of 4 November 1999 (Strasbourg) (ratified by Ukraine on 16 March 2005), the United Nations Convention against Corruption of 31 October 2003 (ratified by Ukraine on 18 October 2006) .).
A characteristic feature of domestic criminal legislation is the lack of a systematic approach to understanding and reporting corruption offenses. Thus, corruption crimes are not placed in the same section of the Criminal Code of Ukraine, which is a perfectly balanced and correct step in view of the tradition of forming the structure of the criminal law and the spread of corruption manifestations in almost all spheres of society. In addition, the criminal law does not define the concept of a corruption crime and discloses its meaning by reference to Art. 45 of all actions that can be attributed to corruption. Yes, a note to Art. 45 of the Criminal Code of Ukraine understands the crimes provided for in Articles 191, 262, 308, 312, 313, 320, 357, 410 in the case of their perpetration through abuse of office, as well as the crimes provided for in Articles 210, 354, 364, 364- 1, 365-2, 368-369-2 of this Code. I also note that this is the first use of the term “corruption crime” at the legislative level.
Thus, the legislator conditionally divided the circle of corruption crimes into 2 groups. The first group includes:
– appropriation, misappropriation of property or seizure of property by abuse of office (Article 191 of the Criminal Code of Ukraine);
– abduction, misappropriation, extortion of firearms, ammunition, explosives or radioactive materials or seizure by fraud or abuse of office (Article 262 of the Criminal Code of Ukraine);
– abduction, misappropriation, extortion of narcotic drugs, psychotropic substances or their analogues or seizure of them by fraud or abuse of office (Article 308 of the Criminal Code of Ukraine);
– abduction, misappropriation, extortion of the precursors or their seizure by fraud or abuse of office (Article 312 of the Criminal Code of Ukraine);
– theft, misappropriation, extortion of equipment intended for the manufacture of narcotic drugs, psychotropic substances or their analogues, or seizure by fraud or abuse of office and other illegal activities with such equipment (Article 313 of the Criminal Code of Ukraine);
– violation of the established rules of circulation of narcotic drugs, psychotropic substances, their analogs or precursors (Article 320 of the Criminal Code of Ukraine);
– abduction, misappropriation, solicitation of documents, stamps, seals, seizure of them through fraud or abuse of office or damage to them (Article 357 of the Criminal Code of Ukraine);
– abduction, misappropriation, extortion of weapons, military supplies, explosives or other combat substances, vehicles, military and special equipment or other military property, as well as seizure of them by fraud or abuse of office (Article 410 of the Criminal Code of Ukraine).
These are acts that, in their “pure” form, do not constitute corruption, but can be classified as such only with regard to their perpetration by certain categories of persons identified at the level of h. 3, 4 Art. 18 of the Criminal Code of Ukraine and notes to Art. 364 of the Criminal Code of Ukraine.
The second group of criminal offenses related to corruption constitutes corruption itself, which exclusively contains the unlawful corruption component:
– improper use of budget funds, execution of budget expenditures or granting of credits from the budget without established budgetary allocations or with their excess (Article 210 of the Criminal Code of Ukraine);
– bribery of an employee of an enterprise, institution or organization (Article 354 of the Criminal Code of Ukraine);
abuse of power or office (Article 364 of the Criminal Code of Ukraine);
– abuse of authority by an official of a private legal person irrespective of the organizational and legal form (Article 364-1 of the Criminal Code of Ukraine);
– abuse of authority by persons providing public services (Article 365-2 of the Criminal Code of Ukraine);
– acceptance of an offer, promise or receipt of an undue benefit by an official (Article 368 of the Criminal Code of Ukraine);
– illegal enrichment (Article 368-2 of the Criminal Code of Ukraine);
– bribery of an official of a legal entity of private law irrespective of the organizational and legal form (Articles 368-3 of the Criminal Code of Ukraine);
– bribery of a person providing public services (Article 368-4 of the Criminal Code of Ukraine);
– offer, promise or unlawful benefit to an official (Article 369 of the Criminal Code of Ukraine);
abuse of influence (Article 369-2 of the Criminal Code of Ukraine).
In my opinion, the absence of a single generalizable concept of “corruption crime” is still a justified step, given the inability to adapt and extend a certain interpretation of such concept to a limited range of actions. It is impossible to develop such a generalized legal construction that would reflect absolutely all manifestations (signs) of corruption. Therefore, applying such a somewhat original approach to isolating acts that are corrupt is absolutely logical. On the other hand, the qualitative filling of such a list can still be called into question. In particular, certain acts that are part of the first group of corruption crimes (acts envisaged by Article 262, 308, 312, 313, 320, 410 of the Criminal Code of Ukraine) do not refer to international legal acts as corruption.
Namely: the content of the Special Part of the Criminal Code of Ukraine included new structures of corruption crimes, increased criminal liability in terms of types and sizes of sanctions, established impossibility of applying some provisions to persons convicted of corruption crimes, institute of release from criminal responsibility or release from punishment since the punishment has been served, the number of persons to whom other criminal measures are applied is expanded.
Most corruption offenses provide for article penalties as additional punishment, deprivation of the right to occupy certain positions or engage in certain activities. In the absence of this type of punishment in the sanction of the article, it may be appointed by the court, provided that, taking into account the nature of the crime committed in the office or in connection with engaging in certain activities, the person convicted and other circumstances of the case considers the impossibility of retaining his rights hold certain positions or engage in certain activities (Part 2 of Article 55 of the Criminal Code of Ukraine).
Some sanctions of articles for corruption offenses provide for the possibility of imposing two additional punishments at once – deprivation of the right to occupy certain positions or engage in certain activities and confiscation or a fine (Art.364 of the Criminal Code Art.368-2 of the Criminal Code).
Attention is drawn to the provisions of the Criminal Code, which make it impossible to apply to a person who has committed a corruption offense, many provisions on criminal liability, exemption from punishment and his serving, certain provisions that improve the situation of a person in sentencing.
Thus, the perpetrators of corruption are not covered by the guarantees provided by the effective Criminal Code of Ukraine related to the exemption from criminal liability: the provisions of Art. 45 of the Criminal Code of Ukraine – exemption from criminal liability in connection with effective remorse; Art. 46 of the Criminal Code of Ukraine – in connection with the reconciliation of the guilty with the victim; Art. 47 of the Criminal Code of Ukraine – in connection with bailing; Art. 48 of the Criminal Code of Ukraine – due to changes in the situation.
As a result of amendments to section XII of the Criminal Code of Ukraine, in accordance with Part 4 of Art. 74 of the Criminal Code, a person convicted of a corruption offense cannot be released from serving a sentence of a court sentence if such a person has committed a crime of slight or moderate gravity and can be found to have taken into account the impeccable behavior and honest treatment of the person during the trial. cannot be considered socially dangerous.
Similarly, it became impossible to apply to persons convicted of corruption offenses the exemption from serving a sentence of probation, as evidenced by the reservation in Part 1 of Article 74 of the Criminal Code of Ukraine. Based on Part 1 of Art. 79 of the Criminal Code of Ukraine exemption from serving a sentence of probation cannot be applied including to pregnant women and women who have children under the age of seven, if they have committed a corruption crime.
Certain changes for persons convicted of corruption have been made subject to parole. Subject to the direct reservations under item 1 of part 3 of Article 81 of the Criminal Code of Ukraine, a person may not be released ahead of time after the actual serving of a convicted person not less than half of the sentence imposed by the court for a crime of minor or moderate gravity, if the person has committed a corruption crime. A person convicted of a corruption offense shall have the right to apply for her parole only after the actual serving of at least two thirds of the sentence imposed by a court for a medium-sized corruption offense, a deliberate serious crime (paragraph 2 of part 3 of Article 81 of the Criminal Code). Ukraine).
In accordance with Part 4 of Article 82 of the Criminal Code of Ukraine, the replacement of the unexplained part of the sentence by milder persons serving sentences in the form of restriction or imprisonment may be applied after the actual serving of the convicted person not less than half of the sentence imposed by the court for medium-sized corruption. . The provision for the replacement of the unexplained part of the punishment by milder persons, when actually serving at least one third of the sentence imposed by the court for a crime of minor or moderate gravity, does not apply to persons convicted of corruption offenses.
The procedure for amnesty and pardon for persons convicted of corruption has also been changed. According to Part 4 of Art. 86 of the Criminal Code of Ukraine persons found guilty of committing corruption crimes, sentences against which have not entered into force, cannot be released from serving their sentences, and persons whose sentences have entered into force – cannot be completely released by the law on amnesty from serving sentences . These persons may be released from serving their sentence after the actual termination of their terms, established by part three of Article 81 of the Criminal Code of Ukraine.
Similar clause 4 of Article 87 of the Criminal Code of Ukraine: Persons convicted of committing corruption offenses may be released from serving their sentence in the pardon order after the actual termination of their terms set by part three of Article 81 of the Criminal Code of Ukraine.
When imposing punishment on persons who have committed corruption crimes, it is impossible to apply the provisions of Art. 69 of the Criminal Code of Ukraine on the imposition of a milder punishment than provided for by the sanction of the article of the Special part of the Criminal Code of Ukraine for the relevant crime, even in the presence of all the necessary grounds specified in Part 1 of Article 69 of the Criminal Code.
A special procedure for persons convicted of corruption crimes is also established for the order of conviction. Thus, in accordance with Part 2 of Article 91 of the Criminal Code of Ukraine, conviction before the expiry of the terms specified in Art. 89 of the Criminal Code of Ukraine, it is not allowed in cases for corruption crimes.
In addition, committing corruption offenses may be grounds for the use of special confiscation and criminal-law measures against legal persons.
Author: Andrey Kubov