The Supreme Court, as a panel of judges of the Third Judicial Chamber of the Criminal Court of Cassation, considered case No. 752/4292/16-k , in which it was noted in which case criminal liability arises for violation of the prohibition on providing an unlawful benefit to an official.
Provocation of a crime: in which case liability arises for providing an unlawful benefit to an official
The circumstances of the case
It is known from the case materials that the man, while in the office premises, acting with direct intent, made an offer of an illegal benefit in the amount of 10,000 USD to a member of the competition commission of the National Anti-Corruption Bureau of Ukraine (NABU) 1 for the selection of candidates to fill vacant positions of civil servants in the NABU , who was an official in accordance with Note 1 to Art. 364 of the Criminal Code of Ukraine, as he performed the functions of a representative of the authorities under a special authority granted by the Director of NABU and the Law of Ukraine "On the National Anti-Corruption Bureau of Ukraine", for making a decision by him using his official position to elect him as a candidate for the vacant position of head of the division or deputy head of the detective division (department) of the main detective division of NABU.
According to the verdict of the Higher Anti-Corruption Court, the man was convicted under Part 1 of Art. 369 of the Criminal Code of Ukraine to the penalty of imprisonment for a term of 2 years. The Appellate Chamber of the High Anti-Corruption Court left the said verdict of the local court unchanged.
While considering the case, the Supreme Court noted that the Court considers the arguments of the defense regarding the provocation of a crime to be unfounded, because incitement occurs when the relevant law enforcement officers or persons acting on their instructions are not limited to passive investigation, but with the aim of establishing a crime, that is, obtaining evidence and initiating a criminal case affect the subject, predisposing him to commit a crime that otherwise would not have been committed. There is no such information in the case file, and no specific circumstances have been given in the cassation appeals of the defense parties.
The Supreme Court recalled that, according to the recommendations of the European Court of Human Rights, in order to verify compliance with the right to a fair trial in the case of the use of secret agents, the Court first checks whether traps were set (what is usually called the "material criterion of provocation"), and if so, then could the applicant in the national court use this for his defense ("procedural criterion of provocation"; paragraphs 37, 51 of the decision in the case "Bannikova v. Russia" dated November 4, 2010, application #18757/06).
The court defines entrapment as a situation when the agents involved – law enforcement officers or persons acting at their request – are not limited to purely passive observation of illegal activity, but exert a certain influence on the person being monitored, provoking him to commit an offense that he would otherwise, she did not do it, in order to record it, that is, to obtain evidence and initiate criminal prosecution (paragraph 55 of the decision in the case "Ramanauskas v. Lithuania" dated February 5, 2008, application No. 74420/01).
To determine whether the investigation was "purely passive," the Court examines the motives that justified the infiltration operation and the conduct of the state authorities that carried it out. In particular, the Court establishes whether there were objective doubts that the applicant was involved in criminal activity or was inclined to commit a criminal offense.
Thus, refuting the arguments of the defense regarding the provocation of a crime by law enforcement agencies, the panel of judges notes that criminal liability for violation of the prohibition on providing an illegal benefit to an official occurs when the person who provides an illegal benefit is aware that he is giving it to such a person, and in connection with the possibilities of her position, the significance, status and importance of this position, she is convinced that the goal she pursues will be achieved thanks to the possibilities of the position held by the specified official.
Thus, the courts of the first and appellate instances reasonably established that the convict was aware of the position held by the official, and precisely in connection with this he offered him an illegal benefit.
In addition, the courts of both instances, with reference to the relevant inspection protocols and audio and video monitoring, reliably established the absence of provocative actions on the part of NABU employees, taking into account the testimony of witnesses, in particular, the witness who confirmed at the court hearing that the convict had previously had a conversation with him about employment at NABU by solving this issue outside the established order.
The Supreme Court left the verdict of the High Anti-Corruption Court unchanged.