The fight against officials who steal state property or profit from procurement procedures is gaining momentum in Ukraine. Corrupt elements and schemes are exposed, and punishment is increasingly applied to the guilty.
In recent months, the number of detected crimes under Article 364 of the Criminal Code of Ukraine has increased several times.
Therefore, it is necessary to understand what characterizes the essence of this criminal offense.
For crimes in the field of professional and official activities, which are related to the provision of public services, the presence of three features is mandatory:
• an act that must be related to the person's use of his official position or power. It can be expressed both in inaction and in active action;
• consequences that cause significant damage to the freedoms, rights or interests of the state, enterprise or citizen;
• a causal connection between the act committed by the person and the consequences that occurred.
For the correct qualification of the offender, law enforcement agencies must establish the connection between the person's actions and his official duties and the position he had at the time of committing the offense. For example, in the resolution of the Supreme Court of November 2, 2022 in case No. 724/1590/19, it is noted that inaction in the form of failure to check the product for compliance with the requirements of the national standard may indicate the presence of a criminal offense under Article 364 of the Criminal Code of Ukraine, since the involvement of specialists to carry out actions with special knowledge included in the scope of duties of an official.
In addition, the purpose of committing a criminal offense also gains importance, since the act can be committed both in the interests of third parties and in the interests of the official himself.
Therefore, the correct definition of the signs and elements of a criminal offense is the key to success in defending a client in criminal proceedings, because the prosecution usually does not fully establish the connections between its main and additional elements.
Oleksandr Chornukha, attorney at Dynasty law & investment
