THE LAWYER - ARTICLE 364 OF THE CRIMINAL CODE OF UKRAINE. Abuse of official position

Lawyer EUSUITIN Alexander and other lawyers - partners to specialize on criminal law and process in respect of officers on the facts of abuse of official position, embezzlement and assignments of property.

There is extensive practice with positive results. Even in the High specialized court for civil and criminal case

s when from the courtroom was the defendant previously convicted by the district court to 8 years imprisonment, acquitted him under article 191 of part 5, 364 part 2, 209 criminal code of Ukraine, and freed from punishment under Art. 366 of the criminal code of Ukraine.

The managing partner of the firm lawyer Alexander. personally involved in the issues of qualification of crimes under article 364 of the criminal code of Ukraine of 2001, being investigator and Prosecutor of the Prosecutor's office, overseeing the units of the investigative Department of the Prosecutor's office, "OP", OCD and UAS, investigating cases of this category, has always defended the law and prevent the involvement of innocent to criminal responsibility. Since 2007, he conducts a personal practice in these cases, using the experience.

Law enforcement officers in most cases exceeding their authority unnecessarily trying to accuse the Commission of such grave and particularly grave crimes as specified in articles 191, 364, 365, 368 criminal code of Ukraine of sanctions for the Commission of which reach the terms of imprisonment to 12 years. and in conjunction with articles 209 and 212 of the Criminal Code of Ukraine, may exceed such terms. However, these offences are very peculiar, have a number of required aggravating circumstances and really difficult to prove. We recommend not to testify without consulting with an experienced lawyer specializing in this category.

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The commentary to article 364 of the Criminal code of Ukraine

Abuse of power or official position

1. Abuse of power or official position, ie, deliberately, from mercenary motives or in other personal interests or in interests of third parties, the use of official authority or official position contrary to interests of service, if it caused substantial harm to legally protected rights and interests of individual citizens or state or public interests, or interests of legal entities,-

is punished with correctional labor for up to two years, or with arrest for the term up to six months, or restraint of liberty for a term up to three years, with deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.

2. The same acts, if they caused grave consequences,-

shall be punished by imprisonment for the term from five till eight years with deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.

3. The actions provided by parts of first or second present article, if committed by a law enforcement officer,-

shall be punishable by deprivation of liberty for a term of five to twelve years with confiscation of property and with deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.

Notes: 1. Officials are persons permanently or temporarily performing the functions of the authorities and occupying permanently or temporarily in enterprises, institutions or organizations regardless of their ownership positions related to the implementation of organizational-administrative or administrative-economic duties or perform such duties under special authorization.

2. Service persons shall be foreigners or stateless persons who perform the duties referred to in paragraph 1 of this note.

3. Substantial damage in articles 364. 365, 367, if it is causing material damage, is considered such a pity that a hundred or more times exceeds tax-free minimum incomes of citizens.

4. Severe consequences in articles 364-367, if they are causing property damage, are those which two hundred fifty and more times exceeds untaxed minimum incomes of citizens.

1. Abuse of power or official position considered a crime in the presence of

three special features in their entirety:

1) use official authority or official position contrary to interests of service;

2) Commission of such acts from mercenary motives or in other personal interests or in the interests

third parties;

3) such actions causing substantial harm to legally protected rights and interests of individual citizens or state or public interests, or interests of legal entities.

The absence of one of these signs indicates the absence of a crime under article 364. That is, there must be credible evidence of all three features, and in the absence of one of them, the offense otsutstvuet.

From the objective party (action, the consequence and the causal connection between them) this crime may take the following forms:

1) abuse of power, causing significant harm;

2) abuse of office that caused substantial harm.

Under the abuse of power it is to be understood the deliberate use by an official who has the powers contrary to interests of service of their rights regarding the claims, as well as making decisions binding on other persons or legal entities. Abuse of power can as a representative of the authorities, and officials performing organizational and administrative duties, since the latter also has authority applicable to subordinate entities.

Malpractice is any deliberate use by an official contrary to the interests of the service of their rights and opportunities associated with his office. In General, malpractice is a broader term, it encompasses abuse of power, as used contrary to the interests of the service official might and power rights and opportunities, if it has them.

Abuse of power or official position provides a link between the official position of the perpetrator and his behavior, which is expressed in illegal action or omission.

Official when abuse in any form committed to use his official position, which involves both the presence of provided for by laws and other normative-legal acts of the powers (rights and duties) and the presence of the actual opportunities offered to her the authority of the position (it is generally accepted weight, importance, consequence).

The phrase contrary to the interests of the service provides that the officer does not wish to reckon with its law or other regulatory legal act of the duties, acts contrary to them, does not pay attention to job interests.

Under the interests of the service, you should understand primarily the interests of a particular organ, enterprises, institutions or organizations that do not contradict, are not opposed to the interests of the state. Therefore, the actions of officials, committed in the narrow departmental interests over the state interests or the interests of other enterprises, institutions and organizations can also admit perfect contrary to the interests of the service.

The actual occurrence of significant harm it is necessary to consider that the crimes ended because of it by design is the material.

A necessary sign of the objective party of a crime is the causal relationship between the abuse of power or official position and significant damage.

2. The subject of the abuse of power or official position can only be official.

3. From the subjective party the crime is characterised by deliberate or a mixed form of guilt.

Ulterior motive, other personal interests and the interests of third parties are necessarily a sign of abuse of power or official position and underscore the fact that this offence may be committed under the influence of such motives.

A selfish motive can be defined as the desire of officials through abuse of power or official position to obtain unlawful material benefit (receive property, property rights, free from personal property expenses, etc.).

Other personal interests as the motive for the abuse of power or official position are in aspiration to benefit non-property character, caused by such promptings as a careerism, jealousy, protectionism, the desire to receive mutual service, to enlist support in the decision of a question, to hide their incompetence, etc. and Other personal interests may occur in connection with the desire to get back at someone, to gain advantage in unfair competition etc. For example, a sense of careerism encourages a service person to take actions that may satisfy her desire to advance in employment that does not match the experience, knowledge, moral qualities of the person.

The interests of third parties must be understood as such. what is not protected in this case by law. The desire to satisfy them is a kind of immoral, the motive of the official. Such a desire may coincide, for example, with a negative understanding of careerism above, if the career is dependent on a third party, or there could be illegal providing of services, benefits to a relative, friend, release them from Their statutory duties, dogdirect to the head, etc. Third parties may be relatives, friends, acquaintances, superiors, officials who wish together with the last to exercise the rights which belong to it ex officio, or related position opportunities.

Lawyers ACB "UIP" specialize in matters under article 364, 365, 367 of the criminal code of Ukraine. Bureau Director - counsel EUSUITIN A. personally practices cases in this category since 2002 as a Prosecutor, and since 2005 as a supervising attorney and since 2007 as a lawyer.

LAWYER - ARTICLE 366 OF THE CRIMINAL CODE OF UKRAINE - OFFICIAL FORGERY 

ATTORNEY - 191 ARTICLE OF THE CRIMINAL CODE OF UKRAINE - EMBEZZLEMENT OF ENTRUSTED PROPERTY, OFFICIAL 

LAWYER - ARTICLE 368 OF THE CRIMINAL CODE OF UKRAINE. BRIBE. 

ATTORNEY - ST. 212 OF THE CRIMINAL CODE OF UKRAINE - INTENTIONAL EVASION OF TAXES, DUTIES AND OTHER MANDATORY PAYMENTS