The new article 366-1 of the Criminal Code of Ukraine (hereinafter – the CC of Ukraine) entered into force on the 26th of April 2015 (by the Law of Ukraine dated 14.10.2014 No.1700-VII), however it actually started to operate since September 2016 – together with the beginning of electronic declaration.
Two previous years have shown that this provision is widely used by law enforcement agencies, bills of indictments are sent to the courts.
So, as of February 2018, 194 criminal proceedings were registered, 136 of which (70%) were investigated by the National Police authorities, and 57 (30%) – by prosecution investigators (according to Alexander Lemenov, chief expert of Anti-corruption group of Intensive Care package of reforms). According to the information of Expert organization State Watch, many people at local levels were not aware of the changes in legislation, which had led to bringing of foresters, land surveyors, inspectors, local authorities representatives to criminal responsibility, due to which the law enforcers made statistical indicators of detection.
We will focus on approaches that took place in the courts at making decisions for this category of cases.
At the end of September 2018 in the Unified State Register of Judgments there were about 70 court decisions under Article 366-1 of the Criminal Code of Ukraine.
The vast majority are judgments of conviction, by guilt recognition agreement, on act characterization “deliberate failure to submit corresponding declaration by the declarant.”
However, for example, Vynohradivskyi district court of Transcarpathian region has made acquitting judgement dated the 20th of February 2018 in the case No. 299/3444/17, in which:
- administrative and criminal liability of the person were delimited. It is stated that Chapter 13 “Administrative offences related to corruption” of the Code of Administrative Offences of Ukraine contains article 172-6 “Violation of financial control requirements”, the theory of which provides for late filing of the declaration without a valid reason by the person authorized to perform state or local government functions. In this criminal proceedings the declaration the was filed, though behind the time limit;
- with reference to the Decision of the European Court of Human Rights in case “Shchekin against Ukraine” dated the 14th of October 2014 (law quality concept) the defendant’s argument that he was not aware of the obligation to submit electronic declaration because of the vagueness and ambiguity of legislation (although this Court’s position is an exception) was taken into account. At this, the grounding of the low quality of the law is more than convincing – with reference to the edition of the newspaper “ACCOUNTING: BUDGET” (No.2 dated the 16th of January 2017) and infographics on the official website of NACP, by which the defendant was guided.
There are also decisions in cases related to the provision of false information in electronic declarations; they are diverse. The observations are as follows.
The courts refer to the NACP clarifications regarding the filling of electronic declarations, which are posted on the official website of the Agency (available via link https://nazk.gov.ua/deklaraciya). For example, such link is contained in the decision of Krasnolimanskiy City Court of the Donetsk region dated 01.12.2017 in case No. 236 / 3186/17.
Assessing the declarant’s intention to provide false information Velykoberezyanskyi District Court of Transcarpathian region in acquitting judgement dated 02.07.2018 in case No. 298/1385/17 took into account the lack of explanations about filling specific information, namely, the rules of displaying indebtedness under court decision. It is also taken into consideration that the accused has made attempts to amend the declaration and in future provided such information. During the accounting year the debt itself was not actually returned, which in turn could not meaningfully change the property status of the accused – and the court concluded that it did not make sense for him to hide such indebtedness.
On the contrary, Krasnolimanskiy City Court in the Dnipropetrovsk region in judgment dated the 12th of June 2018 in case No.236/6/18 established that the accused did not receive instructions about the rules for completing the declaration, as well as clarifications on this matter from the Human Resources department, however he did not report anything about this matter to his management and did not apply for appropriate explanations to his immediate supervisor or to Human Resources department. “Engrossment at work” and the lack of sufficient skills of work with computers for which the defendant refers can not be regarded as valid reasons or force majeure. The accused did not use open-source opportunity to familiarize with explanation for the filing of declarations posted on the official website of the NAPC, while circumstances that would have prevented him from doing so were not established.
Introducing acquitting judgement dated the 3rd of July 2018 in case No.711/1506/18, Pridniprovskyi district court of Cherkasy emphasized that the essential feature which stipulates providing information about the property used by the declarant is not only the fact of use of the property for the end of the accounting year, but also systematic nature of such use (and it has not been proven).
The court also pointed out that expert’s opinion, which determined the market value of the car can not be regarded as proper evidence, since the examination was carried out without the object of study (at a cost of identical car). The court concludes that the absence of the real value of such movable property (wheeled vehicle) affects the determination of the difference between these distinguishing feature from verified, which should differ for the amount of more than 250 subsistence minimums for able-bodied persons, and therefore is significant in determining the limits of responsibility upon Article 366 -1 of the Criminal Code of Ukraine.
And the most interesting fact in this acquitting judgement is that the court rejected the results of operatively-search actions as evidence of property permanent use, because at the time of their conduct it was not known whether the person would declare such use – in other words it was not known about the crime, as it was not committed at that time.
We should take into account that the most part of the decisions – including acquitting judgements – has not gone through the appeals courts. However, some trends of judicial practice can be already considered established.
And although the criminal offence under Article 366-1 of the Criminal Code apply to minor offences, the presence of mandatory additional penalty of deprivation of the right to occupy certain positions or engage in certain activities for up to three years in the sanction makes declarants’ attitude on this issue serious.
Attorney at law of Barristers Lawyers Association