The lecturer thoroughly analyzed with the participants the criminal liability for abuse of power, official position, or authority under the Criminal Code of Ukraine, namely:
1. General composition of “Abuse”.
- 1.1. Opportunities of special status.
- 1.2. What constitutes “Abuse”.
- 1.3. General composition of “Abuse” reflected.
2. Special types of Abuses.
2.1. Special or Specific norms.
3. Exceeding authority or official powers =/≠ Abuse.
4. Signs of Excess.
5. Official forgery.
6. “New” specific forms of Abuse.
Within the characterization of criminal liability for abuse of power, official position, or authority, the focus is on the following:
1. General composition of “Abuse”:
- Abuse of power or official position, that is, intentional, for the purpose of obtaining any unlawful benefit for oneself or another natural or legal person, the use by an official of power or official position contrary to the interests of the service, if it has caused substantial harm to the protected by law rights, freedoms, and interests of individual citizens or state or public interests, or the interests of legal entities.
- Abuse of authority, that is, intentional, for the purpose of obtaining an unlawful benefit for oneself or other persons, using contrary to the interests of a legal entity of private law regardless of the organizational and legal form by an official of such legal entity his powers, if it has caused substantial harm to the protected by law rights or interests of individual citizens, or state or public interests, or the interests of legal entities.
- Abuse of one’s powers by an auditor, notary, appraiser, authorized person or employee of the Fund for Guaranteeing Deposits of Individuals, another person who is not a public servant, an official of local self-government, but carries out professional activities related to the provision of public services, including expert services, specialist services, arbitration manager, private executor, independent mediator, labor arbitration member, arbitrator (while performing these functions), or state registrar, subject of state registration of rights, state executor, private executor for the purpose of obtaining an unlawful benefit, if it has caused substantial harm to the protected by law rights or interests of individual citizens, state or public interests, or the interests of legal entities.
Some conclusions from the analysis of these definitions:
– actions under these criminal offenses are denoted by the same term – abuse. At the same time, the first two dispositions contain definitions of the corresponding concept, which can be generalized as follows: the use of special status opportunities (power, official position, powers) contrary to the interests of the employer/trustee (service or legal entity of private law regardless of the organizational and legal form).
– all the criminal offenses listed in the construction of the objective side are material – the encroachment is considered completed from the moment of the occurrence of the specified socially dangerous consequences – substantial harm to the protected by law rights or interests of individual citizens, state or public interests, or the interests of legal entities. The content of this feature is the same for all these offenses;
– the constructions of the criminal offenses listed in the dispositions should be adjacent by the feature of the subject of the criminal offense – none of the respective special subjects should be a type of another. However, the understanding of the concept of a special subject of offenses in Chapter XVII of the Special Part of the Criminal Code of Ukraine puts this conclusion into doubt. However, this seems to be related to defects in legal regulation and is not part of criminal policy;
– all the listed criminal offenses are committed exclusively with direct intent, as evidenced by the indication of the presence of a special purpose in the respective behavior – obtaining an unlawful benefit.
1.1. Opportunities of special status
Use of the opportunities provided by special status:
- For the purpose of obtaining an unlawful benefit that caused substantial harm;
- For the dismissal of an employee for personal reasons;
- For non-payment of wages;
- For obtaining someone else’s property.
1.2. What constitutes “Abuse”
Possible approaches to filling the content of the subject “Abuse”:
Narrow (reduces the scope of criminalization): Authority – officially granted someone the right to certain activities, business conduct. Authority is both a right and a duty. A person who has authority has certain additional opportunities, but cannot use them at their discretion, only in a formally defined manner.
Broad (expands the scope of criminalization): Official position (opportunities of special status) – authority in the given content + opportunities associated with the special status of the subject, which are not powers in the sense mentioned.
Resolution of the Supreme Court of 27.11.2023 in case No. 991/3966/20: Abuse of power is the unlawful use of powers, authorities, and opportunities derived from rights, duties, guarantees, as well as privileges and other benefits directly related to the performance of the functions of a government representative.
1.3. General composition of “Abuse” reflected
The content of the features of the general composition of “Abuse” and its reflection in the Criminal Code of Ukraine (construction):
- use;
- by a special subject;
- contrary to;
- for the purpose of obtaining an unlawful benefit;
- caused substantial harm.
2. Special types of Abuses
Signs characterizing the subject of abuse are sometimes directly indicated in the dispositions of the articles of the Special Part by referring to the term “official.” The content of this concept is established based on the provisions of Art. 18 of the Criminal Code of Ukraine and encompasses all types of officials – the so-called “general official.” In many cases, the legislator “repeats” the features indicating abuse by a person of the opportunities of their special status – “official using official position.” This characterization seems redundant, as the responsibility of officials in criminal law is established/differentiated not by the status of the person but by the behavior with the use of the competencies of their special status; – for all the special types of abuse listed, the legislator did not define any motive or purpose that would exclude the purpose of obtaining an unlawful benefit in the understanding of this phenomenon, which corresponds to the provisions of the Law of Ukraine “On Prevention of Corruption” and notes to Art. 354 and 3641 of the Criminal Code of Ukraine.
In all the constructions of the listed special types of abuse using the opportunities of special status, it is possible to imagine the occurrence of consequences that, although often lie beyond the scope of the composition of the respective criminal offense, but are intended to be calculated in monetary terms and constitute an amount equivalent to or exceeding 100 non-taxable minimum incomes of citizens.
In cases where the legislator establishes in the norm the composition of a criminal offense that contains socially dangerous consequences in sizes that exceed the size of “substantial harm” characteristic of the general composition of abuse, the respective norm is special only if the sizes of the harm caused coincide.
2.1. Special or Specific norms
Special norm:
- Contains all the features of the general;
- Contains at least one additional feature that distinguishes it from the general;
- Has a generally recognized advantage in law enforcement.
Specific norm:
- Contains a variety of the composition of a criminal offense;
- Has another “criminalizing feature” than the usual “general” norm;
- There are no generally recognized rules for resolving the relevant situations.
To speak of a norm as special, it must contain all the features of the general, namely:
- Action (use… contrary to…);
- Consequences (at least substantial harm);
- Subjective features (special subject and purpose).
Changing the content of the consequences in the general composition of “Abuse” from abstract to entirely concrete “transformed” special norms into specific ones:
- The phrase “the same action,” used in the disposition of part 2 of Art. 194 of the Criminal Code of Ukraine, indicates that the action provided for by this article should be considered only the destruction (damage) of property, and the damage in large amounts is a consequence that is a criminalizing feature only for part 1 of Art. 194 of the Criminal Code of Ukraine and is not necessary for the qualification under part 2 of this article. When qualifying cases of intentional destruction or damage to property by arson, explosion, or other generally dangerous means (part 2 of Art. 194 of the Criminal Code of Ukraine), the amount of the caused property damage is not legally significant. (resolution of the CCR of the SC in case No. 536/621/16-k (proceedings No. 51-3166k20).
- The Grand Chamber concluded that the objective side of the crime provided for in the second part of Article 365 of the Criminal Code is exhausted by the fact of committing actions that clearly exceed the powers granted to the law enforcement officer or the powers, which are derived from rights, duties, guarantees, as well as privileges and other benefits directly related to the performance of the functions of a government representative, accompanied by violence or a threat of violence, the use of weapons or special means, or painful and degrading acts that offend the personal dignity of the victim, without signs of torture. Causing consequences in the form of substantial harm within the meaning of the third point of the note to Article 364 of the Criminal Code is not a mandatory condition for the qualification of a person’s actions under the second part of Article 365 of the Criminal Code. (resolution of the GC of the SC in case No. 301/2178/13-k (proceedings No. 13-57ks18)).
3. Exceeding authority or official powers =/≠ Abuse
Law of Ukraine “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine regarding the implementation of the provisions of Article 19 of the UN Convention against Corruption”.
Article 19 Abuse of official position: Each State Party shall consider taking such legislative and other measures as may be necessary to recognize as a crime the intentional abuse of official powers or official position, that is, the commission of any act or the abstention from action that violates the law by a public official during the performance of their functions with the aim of obtaining any unlawful benefit for oneself or another natural or legal person.
In the generally accepted understanding, “abuse” encompasses any harmful, prohibited behavior – which consists of both actions that are generally allowed (they can be committed, they are within the scope of powers) but become abuse considering the goals of such behavior, as well as actions that go beyond competence.
In the previous version, which was in effect before the Law No. 46-VII of 21.02.2014, Article 364 provided a general norm, and Art. 365 – a special one. Therefore, changes in the special norm – exclusion from it of encroachments that consisted in exceeding authority not by representatives of power mean that the specified actions are covered by the general norm provided for in Art. 364;
4. Signs of Excess
The position that changes in Art. 365 meant the decriminalization of exceeding authority by all representatives of power and public officials (except for law enforcement officers) is absurd. Because exceeding authority or official powers is a much more serious encroachment than their abuse (as evidenced by the comparison of the sanctions of Art. 364 and Art. 365 in both the previous and current versions). There are no arguments in favor of the fact that responsibility for a less serious encroachment is preserved, and for a more serious one – excluded. The presumption of the rationality of the legislator’s actions.
All other articles of the Criminal Code that provide for liability for encroachments committed by persons endowed with special powers cover both actions within competence (which a person is generally authorized to commit) and beyond powers – which constitute their excess (for example, parts 3 of Art. 206, Articles 210, 211, 219, 232-2, 371-375). It is beyond doubt that the norm provided for in Art. 364 should be interpreted on the same principles.
5. Official Forgery
According to Art. 366 of the Criminal Code of Ukraine, official forgery constitutes:
- drafting, issuance by an official of knowingly false official documents,
- entering knowingly false information into official documents,
- other forgery of official documents.
6. “New” Specific Forms of Abuse
In the Special Part of the Criminal Code of Ukraine, types of “Abuses …” are provided (over 100 compositions in total):
- In the articles of Chapter XVII of the Special Part:
- Article 364-2. Voting by a member of the Verkhovna Rada of Ukraine at a plenary session of the Verkhovna Rada of Ukraine instead of another member of the Verkhovna Rada of Ukraine;
- Article 365-3. Inaction of a law enforcement officer regarding illegal activities related to the organization or conduct of gambling or lotteries;
- Article 366. Official forgery;
- Article 369-3. Unlawful influence on the results of official sports competitions.
- As separate main compositions of criminal offenses in different chapters of the Special Part:
- Article 172. Gross violation of labor legislation;
- Article 175. Non-payment of wages, scholarships, pensions, or other legally established payments;
- Article 212. Evasion of tax payments, fees (mandatory payments);
- Article 220-1. Violation of the database maintenance order for depositors or the reporting formation, etc.
As qualified compositions by the feature of “official”:
- Article 162. Violation of the inviolability of the home (part 2);
- Article 176. Violation of copyright and related rights (part 3);
- Article 191. Appropriation, embezzlement, or seizure of property by abuse of official position;
- Article 201. Smuggling of cultural values and weapons, etc.
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