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Plenum of the Supreme Court of Ukraine
RESOLUTION No. 13
of May 25, 1998
On Practice by Courts in Determination
of Cases on Corruption and Other Related Offenses
Having discussed the summarized jurisprudence on corruption and other related offenses (hereinafter, “corruption offenses”), the Plenum of the Supreme Court of Ukraine notes, that on the whole the courts properly apply the October 5, 1995 Law of Ukraine “On the Fight against Corruption” (hereinafter “the Law”). At the same time some essential drawbacks were found in their work.
Courts often admit improperly made reports into proceedings, particularly those reports which specify the person’s legal status and the nature of the act committed. As the result, persons who committed no corruption or related offenses are brought to trial.
Certain courts impose fines on corruption offenders, which are lower than those prescribed by the Law. Unmotivated discharge of guilty persons from administrative liability sometimes takes place. The prescribed length of proceedings is not always observed. Judges ignore the breaches of legal procedures in matters related to liability of citizens for corruption offenses as well as delays in verification of circumstances of the offenses, drawing reports and referring them to courts for review.
Given an increased social danger of corruption, which destabilizes normal operation of state institutions, discredits governmental authorities, local self-government bodies and their staff, and for the purpose of proper application of anti-corruption legislation and prevention of errors in determination of cases of this category, the Plenum of the Supreme Court of Ukraine
RESOLVES the following:
1. When determining cases on corruption offenses, courts shall ensure exact and stringent application of the Law, which is a sine qua non for the prevention of criminally punishable acts of corruption, primarily bribery and other official offenses as well as organized crime.
Acts of corruption include the acts defined in paragraph Article 2 (2)(a) and (b) of the Law. Other related offenses prescribed by the Law include failure to comply with special restrictions (Article 5) or requirements of financial control (Article 6), failure to take anti-corruption measures (Article 10) and failure to comply with anti-corruption duties (Articles 11).
Acts of corruption do not include offenses related to misuse of state funds, official premises, transport or communication facilities, equipment or other state property by officials for personal or other unofficial purposes. Liability for such offenses is prescribed by Article 1841 of the Ukrainian Code of Administrative Offenses (CAO).
2. If the report on the event was drawn by an official who was not properly authorized to draw it or without compliance with requirements set forth in Article 256 of the CAO, in case of a failure to attach documents to it to confirm that the prosecuted person had been vested with the powers to exercise state functions or attach a copy of the court order (in case of repeated prosecution under the Law), the judge is obliged to order to refer the report back to the relevant law enforcement authority who should redraw it properly.
3. In cases of this category, courts should ensure timely, comprehensive, full and unbiased examination of all circumstances as set out in Articles 247 and 280 of the CAO. Special attention must be paid to ascertaining in each case:
Courts should also clarify the motive and nature of the committed act, powers of the person who committed the act, any causal relationship between the act and the exercise of state functions by this person, and the purpose of the offense in cases stipulated in Article 5(1)(a) and Article 5(3)(a) and (b).
4. If any features of a criminal offense were found in actions of the person prosecuted under this Law, the judge should order to close the administrative case and open a criminal case. This order and the case file should be referred to the prosecutor for preliminary investigation.
5. Only the following persons authorized to exercise state functions can be liable for corruption offenses under the Law:
It should also be taken into consideration that only the following special persons are liable under some rules of the Law, namely:
Other persons liable for corruption offenses include judges, prosecutors, investigators, rank and file members and commanding officers of internal affairs agencies, security service officers, tax administration and tax police officials, customs service officials, members of staff in courts, prosecution agencies and other above-mentioned agencies, who are authorized to exercise functions of state.
6. Courts should note that a person acquires the status of a civil servant from the date of decision to appoint him or her to the position of civil servant, whether or not that person took the oath or a rank was conferred on this person or he or she was informed of restrictions set forth in Article 5 of the Law.
The Cabinet of Ministers of Ukraine was also given the right to refer other positions to the category of positions of civil servants listed in Article 9 and Article 25 of the Law of Ukraine of 16 December 1993 on “Civil Service” on agreement with other appropriate governmental agencies. Therefore, in every such case, the courts should check if any acts of the Cabinet of Ministers refer the positions of the prosecuted person to the category of civil servants.
7. The courts should take into account the fact that a person is liable for unlawful acceptance of tangibles, services, privileges or other advantages (Article 1(2)(a) of the Law) on condition that he or she acted so in connection with the exercise of state functions. At the same time, receiving credits or loans, buying securities, immovable or other property by making use of privileges or advantages not prescribed by law (Article 1(2)(b) of the Law) is recognized unlawful whether or not these actions are related to the exercise of state function by the given person.
Tangibles or services may be accepted personally by the person or through family members, third persons, by mail or other ways. Persons listed in the Law are liable for acceptance of tangibles, services, privileges or other advantages either personally for themselves or for their relatives, friends, etc.
8. It should be explained to the courts that the objective side of acts of corruption prescribed by Article 1(2) of the Law consists in unlawful acceptance of tangibles, services, privileges or other advantages of any kind. Whether or not the person made an action (or omission) in favor of the person who provided tangibles, services, privileges or other advantages and whether or not these acts resulted in any consequences is not important for liability under this rule of the Law.
Accepting an honorarium or any other remuneration for academic work, lecturing, artistic activity or medical practice by a person authorized to exercise state functions is not prohibited by the Law and therefore is not an act of corruption.
9. The courts should distinguish between acts of corruption, official offenses and criminal offenses set out in Article 1912 of the Criminal Code, noting that the administrative liability under Article 1(2) of the Law applies only if actions (or omissions) of the person authorized to exercise state functions do not comprise any elements of crime.
10. An act of corruption is considered to be completed at the time of unlawful acceptance of tangibles, services, privileges or other advantages, while failure to comply with special restrictions is recognized completed at the time when the acts or omissions listed in the disposition of the Article take place, and the liability for it comes into play irrespective of the fact of acceptance of tangibles, services, privileges or other advantages.
11. It should be explained to the courts that a person liable for a corruption offense shall be liable for assistance to natural persons and legal entities in carrying on any business, foreign business, credit and banking or other activity and in obtaining subsidies, subventions, dotations, credits or benefits (Article 5(1)(a) and (3)(a) of the Law) on condition that the person used its official position for the purpose of unlawful obtaining of tangibles, services, privileges or other advantages in return for the above.
Assistance in carrying on business may for example consist of help to a businessman to obtain a license or certificate by circumventing procedures prescribed by law, help to register or reregister a firm, partnership, etc., transfer facilities, equipment, organize logistical support (transportation, communications) or provide informational (computer) services to a businessman, adopt regulations which secure more favorable markets for the sale of goods and provision of services.
Assistance in carrying on foreign business activity includes in particular the enlargement of export or import quotas, issuance of licenses, exemption from or decrease of taxes, customs duties, unjustified simplification of customs control, assistance in transferring foreign currency outside Ukraine or in transit of goods, etc.
Other activities referred to in Article 5(3)(a) include in particular privatization activity, organization of elections, legal registration of political parties or associations of citizens, conferring governmental awards, honorary or special titles, determining legal status of certain groups of civil servants, carrying out passport control, special insurance and also episodic business activity of various funds, associations, etc.
Assistance to natural persons or legal entities in carrying on the above types of activity, which is not related to abuse of official position, for instance consultations, is not an offense prescribed by Article 5(1)(a) or (3)(a) of the Law.
12. When determining a matter on liability of a person authorized to exercise state functions for business activity (Article 5(1)(b) of the Law), account should be taken of the fact that in accordance with Article 1 of the Law of Ukraine of 7 February 1991 “On Entrepreneurship” business activity is understood as an officially recognized, independent, systematic activity undertaken on one’s own risk to manufacture products, perform work, provide services or engage in commerce for the purpose of gaining profit. Therefore, carrying on business without state registration or without a special permit (or license) prescribed by the law gives rise to liability not under the Law but under Article 164 of the CAO and where the same actions were repeated within a year it gives rise to liability under Article 148-3 of the Criminal Code after imposition of the administrative penalty.
The courts should remember that the Law does not impose any restrictions on persons authorized to exercise state functions with regard to investing in joint stock enterprises, holding shares and receiving dividends as common shareholders. This activity is not business under the Law “On Entrepreneurship” and the Law of Ukraine of 18 June 1991 “On Securities and Stock Exchange” and therefore it does not entail liability for corruption offenses.
However, direct participation of such person in an enterprise as its founder should be viewed as business activity, since under Article 8 of the Law “On Entrepreneurship”, the founder acquires the status of businessman as of the time of enterprise registration. In this case, such person is liable under Article 5 (1)(b) (Article 8) of the Law whether or not this person received dividends.
Within the ambit of Article 5(1)(b) of the Law, by-jobs include any paid jobs other than the main job, whether or not contracts for such jobs were made. Academic work, lecturing, artistic activity, medical or veterinarian practices are not regarded as by-jobs. When determining if any job is the by-job, the courts should be guided by Resolution No. 245 of the Cabinet of Ministers of Ukraine of March 3, 1993, Regulations on Terms of By-Jobs for Employees of State-Owned Enterprises, Institutions and Organizations (approved by the Order No. 43 of June 28, 1993 of the Ministry of Labor*, Ministry of Justice and Ministry of Finance) and the List of Jobs That Are Not By-Jobs attached to these Regulations.
13. Attention of courts should be drawn to the fact that persons authorized to exercise state functions are not allowed to be members, whether personally or through an agent or substitutes, in any board of directors or other executive bodies of enterprises, credit and finance institutions, economic corporations, organizations, unions, associations, cooperatives, etc. engaged in business. However, membership of such persons (other than those listed in Article 120 Constitution of Ukraine) in any supervisory board established under Presidential Decree of 15 June 1993 “On Corporatization of Enterprises” and Regulations on the Supervisory Board (approved by Resolution No. 556 of July 19, 1993 of the Cabinet of Ministers of Ukraine) is not an offense prescribed by Article 5(1)(c) since in its substance this board is not an executive body.
Membership in any editorial boards of periodicals (newspapers, magazines), jury, conciliums can not be regarded as a corruption related offense even if such persons is remunerated for such activity since these bodies are set up to promote science, culture, arts and improve medical practice.
14. When determining the guilt of a person for the failure to provide information or impediment of such information or provision of false or incomplete information (Article 5(1)(d) of the Law), the courts should be guided by requirements of the Law of Ukraine of October 2, 1992 “On Information” and other relevant laws and regulations on information relations in this state.
Account must be taken of the fact that any person authorized to exercise state functions may rightfully refuse to provide information or provide it not in full in cases prescribed by Articles 28 to 38 and 46 of the above Law, particularly when this information is one of the following:
15. Offenses prescribed by Article 5(3)(b) of the Law include any unlawful intervention of an official in activity of another official or government agency in order to prevent them from exercise of their powers. Such intervention includes any persuasion, blackmail, intimidation, threats, statements about disclosure of compromising information, etc.
16. A law-enforcement officer may be liable for the failure to comply with his anti-corruption duties (Article 11 of the Law) only if he had a direct duty to draw reports on corruption offenses but willfully failed to draw any such report or had it drawn in an untimely manner. Actions of such person will contain no elements of crime, if the person had no actual possibility to draw such report or had no relevant powers to draw it.
Untimely drawing of a report is the failure to draw it within the period prescribed by Article 38 of the CAO, which should be calculated from the time the corruption offense was disclosed or information on it was received.
17. If a person authorized to exercise state functions failed to comply with any special restriction prescribed by Article 5(1) of the Law and unlawfully obtained any tangibles, services, privileges or other advantages for that, this act should be regarded as an act of corruption and should be classified only under Article 1(2) and the penalty should be imposed under Article 7 of the Law.
18. If unlawful acts of a person comprise any features set out both in the Law and CAO or any other law or regulation providing for administrative liability, acts of the guilty person should be classified under appropriate Article of the Law.
If a person committed two or more corruption offenses set forth by the Law, the final penalty should be determined according to the rules of Article 36 of the CAO. In this case, any additional penalty prescribed by appropriate rule of the Law is added to the primary penalty. For example, primary penalty consisting of a fine imposed under the sanction prescribed by Article 11 and additional penalty consisting of the ban to occupy positions in governmental agencies or be a member of their staff are imposed for a corruption act and willful failure to comply with anti-corruption duties under Article 7 of the Law.
19. The Ukrainian Code of Administrative Offenses does not provide for imposition of administrative penalty below the lowest margin prescribed by sanction of appropriate rule of the Law. Therefore, under Article 33 of this Code, primary and additional penalties must be imposed with the due account given to the nature of the committed corruption offense, personality of the offender, degree of his guilt, property status, circumstances mitigating or aggravating his liability under the sanctions set out in the rules of the Law.
20. According to Article 38 of the CAO, an administrative penalty may be imposed on a guilty person not later than in two months from the day on which the corruption offense was committed, or where the offense is lasting, such penalty may be imposed within two months from the day on which it was detected, and also not later than in one month from the day on which it was decided not to open a criminal case or to close the criminal case where the actions of the person comprise features of a corruption offense. The CAO does not provide for any renewal, prolongation or suspension of such periods. Therefore, proceedings must be dismissed if the periods for imposition of an administrative penalty expire.
Given the limited periods for prosecution of guilty persons for corruption offenses, courts are required to ensure timely and quality determination of such cases, execution of decisions and should keenly respond to any delays allowed.
21. Since in accordance with the current labor law, matters of dismissal of offenders or any other discharge from the exercise of state functions should be resolved under disciplinary procedure by relevant authority (manager), the courts should not consider this matter as they apply Articles 7 to 11 of the Law. At the same time, by finding a person guilty of a corruption offense prescribed by Article 1(2) of the Law, the court should make an order under Article 7(1) of the Law inhibiting this person from holding offices or occupying staff positions in governmental agencies for three years from the day of dismissal or any other discharging this person from the exercise of state functions, as this ban is an additional administrative penalty.
22. In accordance with Article 294(1) of the CAO, judicial order on a corruption case may be set aside or modified by the judge who made it upon a protest filed by a prosecutor, or by a chairman of a higher court regardless of whether or not such protest was filed.
23. In accordance with Article 12(6) of the Law, courts shall within three days refer orders on imposition of administrative penalties for corruption offenses to appropriate governmental agency or elective body for consideration of dismissal of the person from the office (including elective offices), other discharge from the exercise of state functions or pre-term termination of deputy mandate of that person.
Given the fact that imposition of penalties on offenders obliges relevant officials (or elective authority) to make decisions on dismissal or other discharge of such offenders from the exercise of state functions in cases set forth in the Law, the courts should monitor the execution of their decisions, request and receive appropriate written notifications.
24. Considering the exigence of prevention of corruption offenses and the need to ensure that guilty people are prosecuted lawfully, judicial chambers of the Supreme Court of Ukraine, the Supreme Court of the Autonomous Republic of Crimea, oblast, Kyiv and Sevastopol city courts, military courts of the regions and Naval Forces should ensure proper supervision over correct application of law in cases of the given category, review appropriate jurisprudence and take timely measures to eliminate discovered drawbacks.
V. F. Boiko
Chairman of the Supreme Court of Ukraine
Secretary of the Plenum,
Judge of the Supreme Court of Ukraine
* New name is the Ministry of Labor and Social Policy of Ukraine.
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