Oksana Epel: Approbation of the practice of preventing corruption has led to controversy.
The first years of testing the practice of the law “On the Prevention of Corruption” have created contradictions with regard to the extension of its provisions to certain categories of persons. And one of the top-issues is the problem of identifying such elements of the offense as the subject and the subjective side.
And one of the top-issues is the problem of identifying such elements of the offense as the subject and the subjective side. Oksana Epel, judge of the Kyiv Appeal Administrative Court (the KAAC), wrote about this in her report “The Problem of Identifying of the Subject and Subjective Side of Corruption-Related Offenses” and spoke with it at the round table “Prevention and Counteracting Corruption in Ukraine”.
“One of the issues that have caused the greatest argument was the classification of the cadets in management of the state penal service, who have the military rank “private” as the subjects of anti-corruption offenses. Thus, Clause 1, part 1, Article 3 of the Law of Ukraine “On Prevention of Corruption” stipulates that the persons subject to the anti-corruption legislation shall include privates and commanders of the state penal service (the SPS).
At the same time, the website of the National Agency of Corruption Prevention (the NACP) announced that the Law of Ukraine “On Prevention of Corruption” does not apply to cadets of higher military educational institutions, but so far there are no official explanations of the NACP in this regard”, said Oksana Epel.
She added that Article 3 of the Law “On Prevention of Corruption” is not subject to extended interpretation, and in case of uncertainty or inaccuracy of its certain provisions, it should be applied in favor of a person, and not otherwise.
The KAAC judge also refers to the practice of the European Court of Human Rights. “In the case “Shchokin vs. Ukraine”, the ECHR emphasized that the lack of necessary clarity and unambiguousness in national legislation violates the requirement of “the quality of the law”. In case that national legislation has given rise to ambiguous interpretations of the rights and obligations of individuals, the state authorities have to rely on the most beneficial approach for the individuals. Thus, the above mentioned collision in the anti-corruption legislation should be resolved in favor of the individual”, said Oksana Epel.
She noted that similar issues arise regarding the inclusion into the category of subjects of anti-corruption offenses of officials of the universities of the SPS of Ukraine, who are also entitled with certain military ranks, because of which the supervisory anti-corruption authorities attribute them to the category of persons under subparagraph “d”, paragraph 1, part 1 of Article 3 of the Law of Ukraine “On Prevention of Corruption”.
“This approach does not only contradict the above-mentioned ECHR practice, but is also a direct violation of Art. 45 of this Law, which stipulates that the Section VII of this Law on financial control, does not apply to the officials of institutions and organizations which carry out the main activity in the field of education, except for heads of institutions of higher education and their deputies”, – emphasized Oksana Epel .
The judge of the KAAC also noticed that these problematic issues have already been tested by court practice and for both categories of persons (cadets and officials of the universities of the SPSU) the court has resolved the dispute in favor of a person. (For example, the resolution of the Chernihiv Regional Administrative Court dated 15.08.2017 and the resolution of the Kyiv Administrative Court of Appeal dated 06.12.2017 in case No. 825/1147/17).
As for the other element – the subjective side of the offenses related to corruption, Oksana Epel said that they are characterized by fault-base in the form of direct or indirect intent, and according to her, the commission of the corresponding act through negligence excludes the grounds for bringing the person to justice.
In the context of this issue, the judge KAAC gave an example: “Establishing a subjective criterion of an offense when brought to the administrative responsibility within Art. 1726 (for failure to submit, unreasonable untimely submission of an electronic declaration or provision of information known to be unreliable) the need to find out the feasibility of the subject to fulfill his obligation stipulated in Art. 45 of the Law of Ukraine “On Prevention of Corruption“, the existence of legitimate reasons, which prevented him from fulfilling his obligations properly”, – said Oksana Epel, the judge of KAAC.
According to her, “Failure to submit or untimely submission by the subject of the electronic declaration or distortion of the data specified therein as a result of technical failures of the official website of the NACP excludes the existence of the subjective side of the said offense and makes it impossible to bring the person to administrative liability”.
We should recall that the Verkhovna Rada of Ukraine on June 21 voted for the draft law “On the formation of the High Anticorruption Court”.
The Law provides for the establishment of the High Anticorruption Court.
According to the Law, the location, territorial jurisdiction and the status of the Supreme Anticorruption Court are determined by the Law of Ukraine “On the High Anticorruption Court”.
This Law comes into force from the day following the day of its publication.
Recall, the Law No. 2447-VIII “On the High Anticorruption Court” was adopted by the Verkhovna Rada of Ukraine on June 7, signed by the President of Ukraine on June 11 and came into force on June 14.