Weekly analytics for 30 August — 5 September

Corruption is not as terrible as the MPs’ attempts to combat it

Event

Shortly after the President’s statement regarding the need for equating corruption during wartime to treason, a draft law № 9659 of August 30, 2023 “On Amending Certain Legislative Acts Regarding the Equivalence of Criminal Corruption Offenses to Treason During the Martial Law in Ukraine” was introduced in Parliament (Ukrainian version of the title contains mistakes).

As noted by the authors in the explanatory note accompanying the draft law, “Criminal corruption offenses during martial law should carry extremely severe penalties, on the same level as treason, as the consequences of these crimes are at similar level”.

It is proposed to supplement the Criminal Code of Ukraine with Article 111-3 “Committing a criminal corruption offense during martial law”. This article incorporates separate components of corruption criminal offenses, namely: embezzlement; waste of property or possession through abuse of official position; inappropriate use of budget funds, or implementation of budget expenditures or provision of loans from the budget without established budgetary allocations or in excess of such allocations; abuse of power or official position; acceptance of an offer or a promise, or receipt of an illegal benefit by an official; illicit enrichment; and abuse of influence. At the same time, the elements of these crimes are supplemented by a qualifying feature – the commission of a corresponding act during martial law. Only a specially designated entity can be charged with these crimes – i.e., officials who hold a responsible or particularly responsible position.

The investigative jurisdiction regarding the new Article 111-3 of the Criminal Code of Ukraine is transferred to the National Anti-Corruption Bureau of Ukraine. Accordingly, procedural management will be carried out by the Specialized Anti-Corruption Prosecutor’s Office. Jurisdiction over this crime is assigned to the High Anti-Corruption Court.

The President of Ukraine has not yet submitted his promised draft law to the Parliament.

CPLR’s assessment

The acts provided for by the draft law, without taking into account the qualifying features, are currently defined by legislation as criminal offenses.

Thus, in essence, there is significantly enhanced criminal responsibility for the mentioned corruption criminal offenses if they are committed by an official who holds a responsible or particularly responsible position and in conditions of martial law; for any of the specified actions, it is proposed to impose criminal sanction in the form of imprisonment for a term of fifteen years or life imprisonment, with confiscation of property – that is, the same penalty as provided for in current Part 2 of Art. 111 of the Criminal Code of Ukraine for treason during martial law.

The current version of the Criminal Code of Ukraine provides for punishment – e.g., for embezzlement, waste of property, or possession through abuse of official position (Part 2 of Article 191) – that can result in imprisonment for up to five years or deprivation of liberty for the same term, with the additional penalty of debarment from holding certain positions or engaging in certain activities for up to three years. Inappropriate use of budget funds, implementation of budget expenditures, or provision of loans from the budget without established budgetary allocations or in excess of such allocations (Part 1 of Article 210) carries a fine ranging from one thousand to four thousand non-taxable minimum incomes or correctional works for a period of up to two years, or restriction of freedom for a period of up to three years, with or without debarment from holding certain positions or engaging in certain activities for a period of up to three years.

One can agree that the very fact of recognizing certain acts as criminal offenses or enhancing criminal responsibility has a certain preventative effect and may deter a certain share of potential criminals from engaging in illegal activities, including corruption. However, the absence of an effective mechanism of criminal justice that can guarantee the inevitability of punishment for the committed offences can reduce the effectiveness of sanctions, regardless of their severity. Secondly, the effectiveness of combating corruption depends on the efficiency of bodies authorized to counter it. In the absence of these two factors, the enhancement of penalties for corruption-related crimes, as well as for any other offenses, is not a panacea.