It is quite common practice for officials to gain access to electronic databases, registers and use such information in their activities. However, the possible leakage of confidential information or its use for personal purposes is not allowed.
And yet, prosecution is often illegal. Therefore, in this article we will analyze what is prohibited and what to do in case of prosecution.
Who are the requirements for?
The situation is quite interesting. Article 43 of the Law of Ukraine “On Prevention of Corruption” (hereinafter - the Law № 1700-VII) prohibits the disclosure of confidential information persons authorized to perform state functions or local self-government (paragraph 1 part 1 of Article 3 of the Law № 1700-VII) and officials of legal entities under public law and others persons specified in paragraph a) of paragraph 2 of Part 1 of Article 3 Law № 1700-VII.
Part 3 of Art. 6 of the Law of Ukraine "On Prevention of the Impact of Corruption Offenses on the Results of Official Sports Competitions" (hereinafter - Law 43743-VIII) prohibits athletes, persons of auxiliary sports personnelparticipating in a sports competition, officials in the field of sports disclose and otherwise use exclusive sports information.
In this case, analyzing Part 1 of Art. 1728 КУпАП, it is seen that from the list of subjects disappear officials of legal entities of public law and other persons specified in paragraph a) of paragraph 2, part 1 of Article 3 of the Law № 1700-VII. instead new subjects appear:
– representatives of public associations, scientific institutions, educational institutions, experts of the corresponding qualification, others persons who are members of competition and disciplinary commissionsestablished in accordance with the Law of Ukraine “On Civil Service”, the Law of Ukraine “On Service in Local Self-Government Bodies”, other laws (except for non-resident foreigners who are members of such commissions), the Public Integrity Council established in accordance with the Law of Ukraine judicial system and the status of judges ".
- persons who coerced or incited athletes, sports support staff, sports officials to offenses or conspired with them.
Pay attention! Part 2 of Art. 1728 КУпАП in general does not establish the separate list of subjects, and therefore it is seen that all subjects which are defined in Art. 3 of the Law № 1700-VII, as well as other regulations that establish these anti-corruption "safeguards".
▲Recommendation. Therefore, in the case of drawing up a report, we recommend that you carefully analyze for which violation of the normative act the report was drawn up, which part of the article the person is accused of and whether he belongs to the list of subjects of the offense.
If you need advice or professional protection in a case of corruption administrative offense, contact us for help
What is the responsibility for?
Illegal disclosure or using otherwise a person in their interests information that became known to her in connection with the implementation official or other prescribed by law powers.
Illegal disclosure or other use by a person in their interests or in the interests of another natural or legal person information about the whistleblower, his relatives or information that can identify the person of the whistleblower, his relatives, who became known to him (them) in connection with the performance of official or other statutory powers.
As you can see, to establish the fact of the offense and its proof must be present several factors:
- Person must disclose or otherwise use the information.
- Disclosure information should be carried out in the interests of the person disclosing.
- Information, which a person disclosed or used, became known to him during the performance of official duties, and not otherwise.
- Goal disclosure of information about the whistleblower (Part 2 of Article 1728 КУпАП - in own interests or interests of other persons) does not matter, however such information should also be received during service.
- A person must pay for the disclosure or use in his interests of information obtained in the course of the performance of official or other powers. a fine in the amount of UAH 1,700 to UAH 2,550.
- For disclosing or using in their own interests or in the interests of another person information about the whistleblower, his relatives or information that can identify the person of the whistleblower, his relatives, who became known to him (them) in connection with the performance of official or other powers threatens much greater fine - from UAH 17,000 to UAH 42,500 with deprivation of the right to hold certain positions or engage in certain activities for a period of one year.
To better understand how these offenses may manifest themselves and what position the courts take in such cases, here are a few examples.
- Police officers have the right to disseminate information obtained during their service, only in cases provided by law.
Plot: the inspector of the district police department, being in a daily dress and receiving information about the alleged commission of a criminal offense by a person with whom he was on friendly terms, informed this person the information received, as well as the personal data of the victim. The evidence of the person's guilt in this case was indisputable: audio recordings of telephone conversations were provided from the inspector's number to the number of the person allegedly involved in the offense, and witnesses were interrogated who confirmed the person's dress and registration of the victim and his personal data. police (Resolution of 04.05.2020 №173 / 543/20 Verkhnodniprovsky District Court).
As a result, the court found the person guilty.
- The use of information about a person does not constitute an administrative offense.
Plot: A report was drawn up against the person for having access to the State Register of Real Property Rights formed an information certificate on his property, which he later used in his private interests by submitting to the court during the civil dispute. (Resolution of 30.01.2020 № 577/5/20 Konotop City District Court).
During the trial it was established that, first of all, the information was received by the person not as a result of the use of official powers, but because it is his property and it is obvious that the person knows about its existence. In addition, such information is not restricted information and can be obtained by anyone.
In this regard, the court closed the proceedings for lack of administrative offense in the actions of the person.
- The protocol must contain information on the actions of the person in which the fact of disclosure or other use of official information is seen.
Plot: The head of the Secretariat of the High Council of Justice was prosecuted for allegedly illegal use of answers during one of the exams during the competitive selection for the position of the Head of the State Judicial Administration of Ukraine. The essence of the accusation was that the person had previously signed an agreement on confidentiality and non-disclosure of information, according to which information materials were passed to check the level of English language proficiency for candidates for civil service positions of category "A" (Resolution of 24.12.2019 № 761/26744/19 Kyiv Court of Appeal).
During the appellate review, it was found that the said person had only signed the contract, but the confidential information specified in the contract was contained on a flash drive, which was accessed by two other persons. In addition, the court pointed out that the protocol does not contain all the circumstances of the offense under Art. 172-8 of the Code of Administrative Offenses, namely: there is no information where and from whom the person received information with limited access. There was also no evidence in the case file to indicate the use of restricted information.
Thus, the appellate court annulled the illegal decision of the first instance and closed the proceedings for lack of corpus delicti.
- The service EDS should be used with caution.
Plot: While working in the police, the person used a qualified electronic digital signature obtained for business purposes to prepare an information certificate from the State Register of Real Property Rights in the name of the ex-husband and subsequently submitted this certificate to the court in the case of alimony collection. (Resolution of 27.05.2020 № 712/4115/20 Sosnivsky District Court of Cherkasy).
The court found that the use of access to information that was not confidential to the individual, as the latter was well aware of the information in the State Register of proper real estate, as stated in the request for a certificate, did not constitute an offense. In addition, the personal data of the ex-husband of the person was reliably known, as she was married to him.
Thus, it is clear that the proceedings were also closed for lack of corpus delicti.
Conclusions. Each situation is individual and court decisions can be radically different. Therefore, in each case it is necessary to separately examine the circumstances of the case, the attached evidence and the protocol itself. Experience shows that a strong and reasoned position of the defense will avoid negative consequences.