In the report on the results of the analysis of judicial practice in the consideration of cases of administrative offences related to corruption (for 2014–2024), prepared by the NACP in conjunction with experts from the Centre of Policy and Legal Reform with the support of the EU Anti-Corruption Initiative in Ukraine, particular attention is paid to the study of law enforcement issues and the quality of legislation.
In particular, the report analyses the application by courts of the provisions of the Code of Ukraine on Administrative Offences (CUAO), systematizes trends in case resolution, identifies legislative gaps, problems in determining the time limits for bringing persons to justice, and mechanisms for resolving conflicts of interest.
The analysis showed the gradual formation of a coordinated approach by the courts to the consideration of cases concerning violations of restrictions on concurrent employment and combination of positions (Article 172-4 of the CUAO) in the context of bringing military officials to justice.
With regard to military personnel called up during mobilization or accepted into military service during a special period who were accused of engaging in other paid or entrepreneurial activities in conjunction with military service, the courts concluded that their actions did not constitute an administrative offence. This is due to the specific legal status of such persons, which is based on the provisions of Article 39 of the Law of Ukraine ‘On Military Duty and Military Service’.
Within the framework of the analysis of judicial practice under Article 172-4 of the Code of Administrative Offences, it was found that when deciding on the closure of a case due to the absence of an event or the elements of an administrative offence, the courts take into account the fact of receiving income from other paid activities. In doing so, they pay attention not only to the mere fact of a person's possible involvement in other paid activities, but also carefully analyse whether income was actually received and whether it is related to the activities to which the restrictions apply.
At the same time, it should be noted that in some cases, courts recognize the absence of an offence under Article 172-5 of the Code of Administrative Offences if the specially authorized entity that drew up the report on the administrative offence did not substantiate the minimum market value of the gift. This makes it difficult to bring persons to justice under the law.
To date, courts have demonstrated different approaches to determining the date of commission and the date of detection of an administrative offence under Article 172-6 of the Code of Administrative Offences (violation of financial control requirements). In addition, in approximately 8% of cases, the criterion of insignificance is applied, which is the basis for exempting a person from liability under Article 22 of the Code of Administrative Offences. It is also interesting that the absence of an event and the elements of an administrative offence in the decisions of the courts of appeal is usually justified by the presence of the elements of a criminal offence in the actions of the person or the absence of intent.
It has also been established that more than half of the cases under Article 172-8 of the Code of Administrative Offences (illegal use of information that became known to a person in connection with the performance of official or other powers defined by law) were closed due to the absence of the elements or occurrence of an offence. This indicates a general trend: courts and authorized bodies carefully check for the existence of an offence, but often do not differentiate between the methods of committing the violation (disclosure or use of information). At the same time, such cases are mostly multi-episodic, and the criterion of insignificance is rarely applied.
The analysis of regulatory and legal provisions in this area revealed several problems. In particular, the study showed that the issue of the time limits for imposing penalties in cases where a person fails to appear in court or to draw up a protocol for valid reasons or without them remains unregulated. It is reasonable that in such cases the time limits should be suspended in order to avoid the possibility of evading responsibility and causing harm to the state and society.
Once again, the unjustified restriction of the prosecutor's right is emphasized: the inability to appeal the decision of the court of first instance, while this opportunity is only given to the person being prosecuted. This leads to the closure of many cases and makes it impossible to develop a uniform practice that could be implemented through the Office of the Prosecutor General.
One of the issues is insufficient regulation of conflicts of interest: the legislation does not define mechanisms for resolving conflicts involving officials who cannot be dismissed within 15 days. This primarily concerns cases where close relatives work together. At the same time, according to Article 27 of the Law of Ukraine ‘On Prevention of Corruption’, a person who is subordinate to another person is subject to dismissal from their position, not the person who was appointed to the position later.
An analysis of judicial practice and legislation shows certain positive trends, but also reveals problems that need to be addressed by amending legislation and harmonizing judicial practice.
The full text of the Report is available at: https://cutt.ly/ttiMUcgH
Presentation 1 (analysis of legislation): https://cutt.ly/0tiM4MAS
Presentation 2 (analysis of judicial practice): https://cutt.ly/6tiM53MA
Video recording of the discussion of the research results is available at: https://surl.li/agkmla
