Illegal enrichment in comparison with the composition – “taking bribes” refers to both general and special. After all, the responsibility for taking a bribe comes only if the official has received it for the performance or non-performance of actions that it could or should have performed with the use of the authority given to it, the organizational, administrative or administrative responsibilities entrusted to it
But disposition of part 1 of Article 3682 of the Criminal Code does not bind (does not make it dependent) the receipt of an undue benefit from the active or passive behavior of an official, that is, from performing it or refraining from performing any specific actions in favor of a person, giving illegal compensation, or In the interests of third parties. It is enough only to obtain property whose source of origin is not supported by evidence.
The Chamber of Criminal Cases of the Armed Forces in 2013, by its resolution, defined such unlawful actions as “passive corruption”.
The first establishment of criminal liability for illegal enrichment was dictated by the norms of international law, in particular the UN Convention against Corruption. This convention was ratified by Ukraine on October 18, 2006. And entered into force in 2010. In addition, among the reasons for the addition of the Criminal Code of Ukraine, this norm is the recommendations of the United Nations and the Council of Europe with a view to strengthening anti-corruption measures.
Since 2015, the law has amended the sanction of Article 3682, which removed the special confiscation and left it simple. The Criminal Code of Ukraine has always provided for two separate categories:
– confiscation in the order of Part 1 of Art. 59 of the Criminal Code of Ukraine as a punishment, consisting in the compulsory free of charge withdrawal into the ownership of the state of all or part of the property that is the property of the convict. This kind of confiscation can be used regardless of the connection of property, confiscated, with a perfect crime. That is, confiscation in this case is subject to any property of the convict, and not only property obtained as a result of a crime or which was the instrument of a crime.
– Special confiscation as a compulsory withdrawal to the state’s income of items, tools and property received as a result of the crime. In particular, paragraph 19 of the Resolution of the Plenum of the Supreme Court of Ukraine “On the practice of appointing a criminal punishment by the courts” 24.10.2003. № 7 differentiated the concept of “confiscation” and “special confiscation”, depending on the degree of connection of property with the committed crime.
The practice of the National Anti-Corruption Bureau of Ukraine of recent high-profile anti-corruption cases shows that detectives operate by simple and straightforward methods of proving a person’s guilt. However, in our opinion, such a superficial legal approach to gathering evidence is incorrect.
In general public access (https://public.nazk.gov.ua) there are declarations of the subjects of declaration for 2015, 2016. According to the declarations, anyone can get acquainted with the property of the subjects, both acquired and what is used, as well as the income of the declaring entity and family members.
Relatively speaking, the logic of detectives boils down to the following: if a judge of a district court at an official pay 10 thousand UAH without having additional income, but in the declaration of 2015 indicated that there is only one-room, and in the declaration 2016 indicated the acquisition of a 3-room apartment, Then we have the crime set out in Art. 3682. With the only proviso that the cost of the acquired 3-oh. Com. Apartments should be more than 680 thousand UAH. Since the total income of a judge for the year is 120 thousand UAH., And the qualifying sign of the crime is enrichment of more than 800 thousand UAH., That is, in the understanding of the article, assets in a significant amount is property Worth more than 800 thousand UAH.
Therefore, now, the key evidence is the declaration of a person suspected of committing illegal enrichment. Obviously, in the future approaches to investigation will be more in-depth and “elegant.” Witness statements will be collected, videos will be recorded for observation, on which top officials travel, where they rest and how they spend money. Besides, the person has independently filled in and registered the declaration, so today the detectives immediately raise suspicion.
As for the declaration itself. It is important to determine the list of subjects. This issue for us is old, because how to deal with the category – an official of a legal entity of public law.
The Law of Ukraine “On the Prevention of Corruption” defines an exhaustive list of persons authorized to perform the functions of the state or local government. However, in clause 2 of the same article is an addition: persons for the purposes of this Law are equated to persons authorized to perform the functions of the state or local self-government are included in an additional list which includes, including officials of legal entities of public law.
We are convinced that such uncertainty in the subjects is a field for appealing against the actions of the investigation. The additional list is established for the purposes of the Law “On Prevention of Corruption”, and not for the purposes of the Criminal Code in the note, the persons specified in Clause 1 Part 1 of Part 3 of the Law “On Prevention of Corruption” are clearly and unequivocally mentioned.
Even if we assume that officials of legal entities of public law are subjects of a crime under Art. 3682 of the Criminal Code of Ukraine. The legal position of the National Anti-Corruption Agency (NAPK) is fundamentally different in the issue of determining the status of a particular employee of a state or municipal enterprise. Recall that it is NAPK – administrator of the register of declarations, and the body is authorized to monitor their filing.
Given the letter of the NAPK of 02.06.2017r. Under the signature of Deputy Chairman G. Radetsky for our appeal, the following is indicated: the subjects of the declaration in the state or municipal enterprise are: the head of this enterprise, its chief accountant, members of the supervisory board (in case of formation), members of the executive body of the enterprise management provided by the charter.
Exceptionally for the conditionality, the employee holding the position: the head of the Department of Capital Investments of PJSC “Ukrainian Railways” or the head of the Road Operation Department of the State Agency for Highways of Ukraine (Ukravtodor) is not a subject of declaration, and as a result, in relation to such employees can not open criminal proceedings under Article . 3682 of the Criminal Code of Ukraine.
As for the declarations themselves, which are now actively being studied by both the NAPK and the NABU. From the first days it became clear to everyone why the highest officials, especially people’s deputies, in their first declarations, indicated significant amounts of cash on hand. Obviously, in order to create a “positive balance” is not the prospect of future years. It can be said that a certain corrupt amnesty is being created before the first declaration. And pointing out the million state of cash on hand, such a declarer, who still “worked hard” – did nothing wrong.
We will separately dwell on clauses 12 and 13 of the standard declaration form – “monetary assets” and “financial obligations”. The clause in the clarification states: the declaring entity must declare … funds borrowed by the declaring entity or a member of its family to third parties, assets in precious (bank) metals, etc. The declaring entity must declare: received loans, loans received, obligations under leasing agreements, the amount of paid funds to the principal loan (loan) and interest on the loan (loan), obligations under insurance contracts and non-state pension provision, funds lent to the declaring entity or A member of his family by other persons, unpaid tax liabilities, etc.
That is, if you purchased expensive real estate, and the funds for the purchase took, then please indicate the loan amount and the date of the contract.
The receipt in itself is a debt document confirming the conclusion of a loan agreement. Recognition of a loan agreement as null and void, or establishing it void, does not create legal consequences of evidence in criminal proceedings, but creates civil consequences for its parties. Not compliance with the form of conclusion of the contract is not a consequence of proving that the funds were not transferred. That is, even if detectives or prosecutors will establish invalidity of the transaction, this will not be a confirmation of the fictitiousness of evidence in the framework of criminal proceedings. We are convinced that the only way to prove the fact that the money was not provided by receipt, as evidence of illegal enrichment, can be explained by the lender himself. As a witness in court, possibly with his forced drive.
It is not without reason that the Prosecutor General stressed in his interview that it would be difficult for the investigator to prove such circumstances and today a “new business” may appear that will provide fictitious loan services. In addition, personal data of creditors in the declaration should not be indicated.
From the existing jurisprudence it follows that in most cases, when the case nevertheless turned out to be in court, the defendants conclude agreements on recognizing guilt with the prosecutor and are limited to a fine. Even more often courts, approving by a verdict similar agreements apply art. 75 and free from the actual serving of punishment with a probationary period.
According to our analysis of the Unified State Register of Judicial Decisions for the period from 2011. By 2017 – only about 20 sentences were handed down for illegal enrichment!
It is interesting to note that the Cabinet of Ministers of Ukraine represented by Groysman VB. Initiated the adoption of the draft law “On Amendments to Certain Legislative Acts of Ukraine Concerning Ensuring Recovery of Unjustified Assets to the State Revenues”. According to the draft, it was planned to supplement civil legislation with the possibility, by a court decision, to deprive property rights on the basis of groundlessness of origin. And the civil process is the norm, which would entail the duty to prove the legality of the assets directly to the owner. That is, before the verdict in the criminal proceedings, SAP and prosecutors planned to authorize the seizure of property within civil cases. However, 08.12.2016r. After the report, Deputy Minister of Justice Yanchuk A.V. The draft law was not adopted. During the voting only 176 deputies voted “for”.
We consider the deviations of the project to be correct, because it does not fully guarantee the rights and observance of freedoms from unreasonable harassment and deprivation of property rights. While supporting the overall direction of the project to implement mechanisms for the return of money received by criminal means, it is worth noting the lack of clear regulatory criteria that determine the grounds for arresting and reclaiming illegal assets for the state. The combination of criminal and civil procedures with the imposition on the defendant (suspect) of the obligation to prove the legality of the acquisition of property untypical for Ukrainian legislation can lead to a precedent for the groundless deprivation of the property right of persons who are not directly related to the crimes committed.
In the end, we want to emphasize that there is still no single position on who should prove the absence of legitimate sources of enrichment. After all, according to Art. 62 of the Constitution of Ukraine established and guaranteed the presumption of innocence of a person in the commission of a crime, according to which a person is considered not guilty of committing a crime and can not be subjected to criminal punishment until his guilt is proven in law and established by a court conviction.