I was recently approached by an ex-employee of the State Penitentiary Service (hereinafter referred to as the State Penitentiary Service), who was charged with late submission of a declaration after her release. Anti-corruption law requires an electronic declaration to be filed on the day of release, but under certain circumstances it filed a declaration 30 days after release.
It sounded quite threatening: the protocol on an administrative offense related to corruption, provided for in Part 1 of Art. 172-6 КУпАП for untimely submission without valid reasons of the declaration of the person authorized to carry out functions of the state or local government. The protocol was drawn up by the operative officer of one of the inter-district departments of the regional Department of Economic Protection of the Department of Economic Protection of the National Police of Ukraine.
Grounds for release from liability
From the beginning, I began to check for "weaknesses" - the authority of the person who drew up the protocol; terms of prosecution; gaps in the drawn up protocol; gaps in anti-corruption legislation and the Code of Administrative Offenses. He then began to analyze the case law, which turned out to be disappointing. In most cases, in similar cases, the courts prosecuted the perpetrators, and in some cases they closed the case after the statute of limitations expired. In some cases, courts also acquitted him of insignificance. This reason attracted attention, because in the case of my client there were no other clues, especially since she no longer planned to work in the civil service.
Exemption from liability due to insignificance
Article 22 of the Code of Administrative Offenses stipulates that in case of insignificance of the committed administrative offense, the body (official) authorized to decide the case may release the violator from administrative liability and limit himself to oral remarks.
The advantage of insignificance is that you will avoid paying a fine (under Part 1 of Article 172-6 of the Code of Administrative Offenses - from UAH 850 to UAH 1,700) and the court will issue a decision to close the case. The downside is that in this case the court must find the person guilty of committing a corruption administrative offense.
The legislation does not enshrine the definition of a minor offense and there are no indications of its signs. As stated in the Resolution of the Supreme Administrative Court of Ukraine of 14.12.2016 in case K / 800/17615/16, in each case the court must decide on the recognition of the act insignificant, based on the fact that its consequences do not pose a great public danger, did not cause or are not capable of causing significant harm to the public or state interests, rights and freedoms of others.
Protection in cases of corruption offenses
What circumstances could the court have considered in this case in order to apply insignificance?
First, the circumstances that will indicate lack of intent not to file a declaration. During the period covered by the day of release, the person was hospitalized due to the illness of a minor child. According to Part 2 of Article 150 of the Family Code of Ukraine, parents are obliged to take care of the child's health. Thus, the offense is committed provided that it is necessary to fulfill the parental duty to care for a sick child. However, the hospital did not answer the question why the declaration was not filed immediately after recovery.
Another circumstance. Upon detection of non-submission of the declaration, the NAPC sends a letter specifying the 10-day period during which the person is obliged to submit the declaration. If you have filed a declaration within the period specified by the NAPC, it will also indicate the fulfillment of the obligation under Part 2 of Article 45 of the Law of Ukraine "On Prevention of Corruption". In such circumstances, it can be proved to the court that the delay of one month in submitting the declaration did not cause significant harm to the public or state interests.
It is also advisable to point out to the court other circumstances that will help to conclude that the offense is insignificant. In our case, it was the status of a single mother; official employment with a minimum wage; care for a minor child; non-payment of alimony from the ex-husband.
Thus, there were circumstances in the case that allowed the court to apply insignificance and release the person from administrative liability. It remains to bring the court to a final decision: to release from administrative liability in connection with the insignificance of the committed administrative offense and to limit itself to oral remarks, as well as to close the case in accordance with Part 2 of Article 284 of the Code of Administrative Offenses.
PS In this case, the court released the client from administrative liability on the basis of Article 22 of the Code of Administrative Offenses. At the same time, I came to the conclusion that many ordinary people do not understand at all - when, where and why to file a declaration. From TV screens, people know about fines for officials, about the confrontation between the NAPC and other government agencies and the level of salaries of the NAPC chairman. However, few people know about their own responsibilities, as a result of which such unpleasant situations occur.
Dmitry Nikiforov, lawyer
Full text of the decision:
Case № 320/9455/18
Resolution on behalf of Ukraine "14" February 2018
Judge of the Melitopol City District Court of the Zaporizhia region Redko OV, considering the case of an administrative offense, which was received from the Department of Economic Protection in the Zaporizhia region DZE NP of Ukraine on bringing to administrative responsibility PERSON_1, ІНФОРМАЦІЯ_1, citizen of Ukraine, does not work, who lives at the address: ІНФОРМАЦІЯ_2 forArt. 124 of the Code of Ukraine on Administrative Offenses,
With the participation of Prosecutor Kerimov EM
PERSON_1, being a junior inspector of the 2nd category of the Department of Regime and Protection of the State Institution "Melitopol Penitentiary № 144", being in accordance with subparagraph "d" p.1 partArticle 3 of the Law of Ukraine "On Prevention of Corruption"(hereinafter - the Law), the subject to which this Law applies, in particular in the mandatory submission of the declaration of the person authorized to perform state functions (hereinafter - the declaration), violated the requirements for the deadline for filing the declaration provided for in Article 45 of the Law, decision of the National Agency for the Prevention of Corruption dated 10.06.2016 № 3, was obliged not later than 24.10.2017, in connection with her dismissal, to submit a declaration of the person, which committed an administrative offense related to corruption under Part 1st.172-6 КУпАП.
At the hearing, PERSON_1 admitted his guilt in committing the offense in full, sincerely repented and confirmed the circumstances described in the minutes. In addition, she explained that she was a single mother, did not receive alimony, cared for an elderly person (disabled group I), cared for the child after her release, and also looked for a new job, asked to close the administrative case, given the insignificance of the act.
The prosecutor objected to the closure of the case on insignificance, asked to apply an administrative penalty in the form of a fine in the minimum amount provided by the sanction of part 1st.172-6 КУпАП.
After hearing the opinion of the person in respect of whom the report was drawn up, the opinion of the prosecutor, having examined the case file, I consider that the fault of PERSON_1 in committing an administrative corruption offense under Part.1st.172-6 КУпАП, is fully confirmed by the evidence examined at the hearing.
In particular, according to Part 1st.172-6 КУпАП, liability arises for late submission without good reason of the declaration of the person authorized to perform the functions of state or local self-government.
Thus, according to the order of the so-called Head of the State Institution "Melitopol Penitentiary № 144" from 14.04.2017 year року 39 / OS-17 PERSON_1 from 15.04.2017 year appointed to the position of junior inspector 2 category department of regime and protection of the specified state institution.
Due to the requirements in accordance with subparagraph "d" of paragraph 1 of Part 1Article 3 of the Law of Ukraine "On Prevention of Corruption"PERSON_1, was obliged upon release to file a declaration for the period not covered by the previously filed declarations. Despite the above obligations PERSON_1Yu filed a declaration only 25.11.2017 year.
Given the above, evaluating the evidence collected in the case, I come to the conclusion that PERSON_1 is guilty of committing an administrative offense provided.1st.172-6 КУпАП, however, given the insignificant nature and essence of the administrative offense, the insignificant degree of guilt of the offender, the absence of any consequences from the offense, I consider it necessary on the basisArticle 22 of the Code of Administrative Offensesrelease him from administrative liability and limit himself to oral remarks.
In accordance with Art.22,284 КУпАП, in case of insignificance of the committed administrative offense, the body (official) authorized to decide the case may release the violator from administrative liability and limit himself to oral remarks. When announcing an oral remark, a decision is made to close the case.
Guided by Art.22,283,284,294and Part 1 of Art.172-6 of the Code of Ukraine on Administrative Offenses, –
p o s t a n o v i v:
Recognize PERSON_1 guilty of committing an administrative offense under Part 1st.172-6 КУпАП, according toArticle 22 of the Code of Administrative Offensesrelease her from administrative liability limited to oral remarks.
Proceedings relativelyPERSON_1 - close.
The decision can be appealed to the Court of Appeal of Zaporizhia region through the Melitopol City District Court within 10 days from the date of the decision.
JUDGE: OV Rarely