Late filing of a declaration is one of the most common grounds for drawing up a report for violation of financial control requirements. But the law obliges to declare not only property and income. If you bought a car, sold a plot of land, inherited or opened a foreign currency account with a non-resident bank, this must also be reflected in the declaration.
Violation of such requirements is subject not only to administrative liability with possible confiscation of income and dismissal, but also to criminal liability. Therefore, in this article we will talk about the features of financial control and in which cases the responsibility arises.
Who are the requirements for?
Persons authorized to perform the functions of the state or local self-government and equated to them, except for persons who provide public services. You can view the full list lower.
What is the responsibility for?
- Untimely submission without good reason of the declaration of the person authorized to perform the functions of the state or local self-government (Part 1 of Article 1726 КУпАП).
- Failure to notify or untimely notification of the opening of a foreign currency account in a non-resident bank or of significant changes in property status (Part 2 of Article 1726 КУпАП).
- Submission of knowingly unreliable information in the declaration of a person authorized to perform the functions of the state or local self-government (Part 4 of Article 1726 КУпАП, ст. 3661 KKU).
At the same time, when bringing a person to justice for each of these offenses has its own characteristics. Consider them in more detail.
- Untimely submission without good reason of the declaration of the person authorized to perform the functions of the state or local self-government
Here, the presence or absence of valid reasons for late submission of the declaration is important. Yes, if a person missed the deadline for filing a declaration due to illness, mobilization, business trip or for other valid reasons, liability is excluded.
Keep in mind that after dismissal, you must also file a return for the previous year. Most civil servants and officials are prosecuted immediately after dismissal, as the employer did not explain such requirements before dismissal.
!!! Please note that persons who are released are also required to file a declaration for a period not covered by previously submitted declarations.
- Failure to notify or untimely notification of opening a foreign currency account in a non-resident bank or of significant changes in property status
Notification of opening of accounts and significant changes in property status is an additional measure of financial control and does not apply to all subjects of declaration.
With regard to the opening of accounts, the obligation to notify arises only in the case of opening an account in a bank that is a non-resident, ie one that is outside the territory of Ukraine (or its branch, representative office) and in its activities governed by the laws of the country. location.
Report account openings and property changes are obliged only:
- officials holding a responsible and especially responsible position *
* The full list of such persons is defined in the note to Art. 50 of the Law of Ukraine "On Prevention of Corruption", which can be revised by the link.
declaring entities holding positions associated with a high level of corruption risks **
** The list of such positions was approved by the NAPC decision of June 17, 2016 № 2 and can be viewed by the link.
Such changes must be notified within 10 days of the occurrence of these circumstances. Other declaring entities should report this information only when submitting the annual declaration.
Not a violation failure to notify of such changes in the event that the property status changes by an amount that is less than 50 subsistence minimums established for able-bodied persons on January 1 of the relevant year (in 2020 it is UAH 105,100).
It should also be noted that it is necessary to report changes in property status in the direction of reduction. That is, if such a declarant donated property, repaired a house or incurred other expenses, he must also notify.
- Submission of knowingly unreliable information in the declaration of a person authorized to perform the functions of the state or local self-government
Here it is important to establish the absence of guilt of the person in providing inaccurate information. The person must prove that such information was provided unintentionally. For example, if the person at the time of filing the declaration was not aware of certain information about the acquisition of property or loan by family members, the composition of the offense is absent.
Please note that the provision of inaccurate information may result in both administrative and criminal liability.
Administrative liability arises if the information in the declaration differs from the reliable in the amount of 100 to 250 subsistence minimums for able-bodied persons (as of today - it is from 210,200 UAH to 525,500 UAH).
Criminal liability arises if the difference in information is more than 250 subsistence minimums for able-bodied persons.
Please note that the NAPC in its explanations indicates the possible disciplinary action if the information in the declaration differs from the actual amount of up to 100 subsistence minimums (as of today - is 210,200 UAH). It is seen that in this case, the decision on disciplinary action is left to the discretion of the head (pp. 3 item 127 of the explanation of the NAPC from 13.02.2020 №1).
If a person has been brought to criminal or administrative responsibility, but has not been deprived of the right to hold office, then disciplinary action cannot be avoided.
If you need advice or professional protection in a case of corruption administrative offense, contact us for help
What are the actions provided?
- Late submission of the declaration - fine from 850 to 1700 UAH (Part 1 of Art. 1726 КУпАП);
- Failure to notify or late notification of the opening of an account in a foreign bank or of changes in property status in the amount exceeding 50 subsistence minimums - fine from 1700 to 3400 UAH (Part 2 of Article 1726 КУпАП);
- Repeated during the year untimely submission of declarations or information on changes in property status or opening of accounts in non-resident banks - fine from 1700 to 5100 UAH with confiscation of income and deprivation of the right to hold certain positions or engage in certain activities for a period of 1 year (Part 3 of Article 1726 КУпАП);
- Submission of inaccurate information in the declaration in the amount of 100 to 250 subsistence minimums - fine from 17,000 to 42,500 hryvnias (Part 4 of Article 1726 КУпАП);
- Submission of inaccurate information in the declaration in the amount exceeding 250 subsistence minimums - a fine from UAH 42,500 to UAH 51,000 or public works for a period of 150 to 240 hours, or imprisonment for up to 2 years, with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years (Article 3661 KKU).
How to defend yourself in such cases?
Here are some examples from case law that will help to clearly understand how to build a position of defense and what is the general practice of courts in such cases.
- The time of detection of an offense is important for prosecution
After his release, the person did not submit a declaration to the NAPC on time. Instead, the National Agency, instead of finding out the fact of the offense, sent the materials to the regional bodies of the National Police. The police drew up a report on the person and sent it to the court, but it has been a long time since the NAPC received information from the person's former job. While the NAPC and the National Police were exchanging materials, a 3-month period of prosecution expired. Although the court recognized the actions of the person as an administrative offense, it closed the proceedings in connection with the expiration of the term of bringing to administrative responsibility at the time of consideration.
Quite often, the defense proves the expiration of the period for bringing to justice, but we recommend that you first examine the possibility of proving the absence of guilt. And the expiration of time can be used as an additional argument.
In this case, the late implementation of financial control by government agencies led to the closure of the case and release from the fine (Resolution of 04.05.2020 in the case № 180/1913/19 Nikopol City District Court).
- Technical failures in the operation of the NAPC website or the Internet during the submission of the declaration are valid reasons for the late submission of the declaration and exclude liability
The deputy of the village council tried to submit an e-declaration. However, he was confident that the declaration had been sent properly, as his e-mail had received a greeting, which he perceived as a successful submission of the declaration. However, he was later informed that the declaration had been retained as a "draft" and not as an "original". In his explanations, he suggested that this was due to a malfunction of the Internet, as he had previously successfully filed a declaration and no such problems arose.
The court closed the case for lack of corpus delicti, recognizing the technical reasons that prevented the timely submission of the declaration as valid. In addition, the court took into account the elderly and lack of computer skills. In addition, the person proved that he had taken actions to file a declaration by providing evidence of electronic correspondence with the NAPC. (Resolution of 18.03.2020 in the case № 314/164/20 Vilnia District Court).
- Failure to notify of significant changes in property status is not an offense if the person did not intend to violate the requirements of financial control
The deputy of the city council, having bought a car, the cost of which clearly exceeded 50 subsistence minimums, did not inform NAPC about changes in property status within 10 days. Instead, in the annual declaration, the deputy reflected the purchase of this car.
This was the proper proof of the lack of purpose to violate the requirements of financial control or prosecution of any corrupt interest. The court concluded that the person did not conceal the fact of purchasing the car and was not aware of the need for such notification by the NAPC. The case file did not contain a written acquaintance of the deputy with the specified requirements.
Thus, the lack of intent of the person related to such non-notification was proved (Resolution of 17.04.2020 № 311/3186/19 Vasylivka District Court).
- Too decent declarants can also be prosecuted
The civil servant sold a motorcycle, the value of which under the contract of sale was UAH 49,000. At the same time, in the declaration he stated the income from the sale of the motorcycle in the amount of UAH 324,000. This difference arose due to the fact that the civil servant additionally sold spare parts and units of this motorcycle and therefore received much more income than was confirmed by the contract.
In this regard, a report on violation of Part 4 of Art. 1726 КУпАП for submission of knowingly unreliable information in the declaration.
The court's position in this case was quite logical. The court did not see any motives in the person's actions to avoid financial control of the income received, as the income was obtained legally and from lawful sources and was larger than required by the report on the corruption offense. This indicates that he has no intention of concealing the fact of alienation of property.
In addition, as it turned out, the National Police officers did not have the authority to verify the declaration of this civil servant. Therefore, the case was closed for lack of corpus delicti (Resolution of November 5, 2018 № 359/7835/18 Boryspil City District Court).
Conclusions. There are many cases of drawing up reports and prosecuting for violating the requirements of financial control. In case of a call to the police or the NAPC, we recommend not to wait for the court and prepare for the defense. Law enforcement and the court need to find the right arguments and provide evidence that there are no violations of financial control requirements. This will guarantee the completion of the case in your favor.
Protection in cases of corruption offenses
List of persons who need to submit a declaration
- Persons authorized to perform the functions of the state or local self-government:
a) The President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, his First Deputy and Deputy Prime Minister, the Prime Minister of Ukraine, the First Vice Prime Minister of Ukraine, the Vice Prime Ministers of Ukraine, Ministers and other heads of central executive bodies , who are not members of the Cabinet of Ministers of Ukraine, and their deputies, the Chairman of the Security Service of Ukraine, the Prosecutor General, the Chairman of the National Bank of Ukraine, his first deputy and deputy, the Chairman and other members of the Accounting Chamber, the Verkhovna Rada Commissioner for Human Rights. protection of the state language, Chairman of the Verkhovna Rada of the Autonomous Republic of Crimea, Chairman of the Council of Ministers of the Autonomous Republic of Crimea;
b) people's deputies of Ukraine, deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, deputies of local councils, village, settlement, city mayors;
c) civil servants, local government officials;
d) military officials of the Armed Forces of Ukraine, the State Service for Special Communications and Information Protection of Ukraine and other military formations formed in accordance with the laws, except for conscripts, cadets of higher military educational institutions, cadets of higher educational institutions military institutes, cadets of faculties, departments and divisions of military training;
e) judges, judges of the Constitutional Court of Ukraine, Chairman, Deputy Chairman, members, inspectors of the High Council of Justice, officials of the Secretariat of the High Council of Justice, Chairman, Deputy Chairman, members, inspectors of the High Qualification Commission of Judges of Ukraine, officials of the Secretariat of this Commission State Judicial Administration of Ukraine, jurors (while performing their duties in court);
e) persons of the rank and file and chief staff of the state penitentiary service, tax police, persons of the chief staff of bodies and divisions of civil defense, the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine;
f) officials and officials of the prosecutor's office, the Security Service of Ukraine, the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine, the diplomatic service, the state forest protection, the state protection of nature reserves, the central executive body implementing state tax policy and the central body executive power, which implements the state customs policy;
g) Chairman, Deputy Chairman of the National Agency for Prevention of Corruption;
g) members of the Central Election Commission;
h) police officers;
i) officials and officials of other state bodies, authorities of the Autonomous Republic of Crimea;
i) members of state collegial bodies;
j) Head of the Office of the President of Ukraine, his First Deputy and deputies, advisers, assistants, commissioners, press secretary of the President of Ukraine, assistant judges.
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