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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of May 25, 1998 No. 13

About practice of consideration by courts of cases on the corruption actions and other offenses connected with corruption

(as amended of the Resolution of the Plenum of the Supreme Court of Ukraine of 03.03.2000 No. 5)

Courts quite often accept in the production the constituted protocols, in particular in what legal status of person and nature of the action made by it is not specified are more unseemly. Thereof persons who are not subjects of corruption offenses are brought to responsibility or made actions which do not concern to the last.

Separate courts are appointed to persons who made corruption offenses, penalties in smaller size, than it is provided by the Law. Cases of unreasonable release of guilty persons from the administrative responsibility, violation of terms of hearing of cases take place. Judges not always react to violations of legality in case of permission of the questions connected with involvement of citizens to responsibility for corruption offenses and also to the delay facts when checking circumstances of their making, in case of creation of protocols and their sending for consideration of courts.

Taking into account the increased public danger of corruption which breaks normal activities of the state institutes, discredits public authorities, local self-government and their device, and for the purpose of the correct application of the legislation, prevention of mistakes by hearing of cases of this category, the Plenum of the Supreme Court of Ukraine DECIDES:

1. By hearing of cases about corruption offenses courts shall provide exact and steady application of the Law as it is indispensable condition of prevention of penal manifestations of corruption, first of all to bribery and other crimes of official, and also organized crime.

The offenses connected with use by officials in personal or other neprisutstvenny purposes of the public funds provided to them in office use of rooms, automobiles or bonds, the equipment or other state-owned property do not belong to corruption actions. Responsibility for such offenses is provided by Art. 184-1 of the Code of Ukraine about administrative offenses (further - the Administrative Code).

2. In cases of creation of the protocol by the official, unauthorized on that, or without observance of requirements of Art. 256 the Administrative Code, non-alignment to it of documents which confirm provision to person who is made responsible, of powers on execution of functions of the state, or the copy of the court order (in case of repeated involvement of person to responsibility based on the Law) the judge shall return the resolution the protocol to the relevant law enforcement agency for proper registration.

3. For this category courts shall provide timely, comprehensive, complete and objective investigation of all circumstances provided by articles 247 and 280 Administrative Code. At the same time special attention needs to be paid on examination in each case of such questions:

whether the offense for which person is made responsible took place;

whether the structure of the corruption offense provided by the Law contains action;

whether the personality is guilty of its making;

whether it belongs to subjects of this offense;

whether contains offense of essential elements of offense;

whether the terms provided by Art. 38 the Administrative Code ended at the time of consideration of the case;

whether there are no other circumstances which exclude proceeedings.

Courts shall find out also motive and nature of committed action, power of the person which made it, availability of causal relationship between action and accomplishment by the last of tasks and functions of the state, and in the cases provided by the item "and" p.1 Art. 5 and the Items "and", "b" of the p. 3 of Art. 5 of the Law - the offense purposes.

4. If in actions of person made responsible based on the Law essential elements of offense are established, the judge shall accept the resolution on closing of legal proceedings on administrative case and transfer of materials to the prosecutor for permission of question of involvement of this person to criminal liability.

5. According to the Law only persons authorized on accomplishment of functions of the state are brought to responsibility for making of corruption offenses namely:

government employees;

deputies of all levels;

rural, settlement, city chairmen and chairmen of regional and regional councils;

At the same time it is necessary to consider that on the separate provisions of the law only special subjects can bear responsibility, namely:

government employees who are officials, according to the p. 3 of Art. 5;

heads of the ministries and departments, state companies, organizations and organizations or their structural divisions - according to Art. 10;

persons who shall constitute protocols on making of corruption offenses or submit these protocols to court, - according to Art. 11.

Except the called persons judges, prosecutors, investigators, faces of ordinary and command structure of law-enforcement bodies, security service specialists, officials of tax administration and tax police, Customs Service and other law enforcement agencies listed in p.1 Art. 2 of the Law of Ukraine of December 23, 1993 treat subjects of corruption offenses. "About the state protection of employees of court and law enforcement agencies", and also workers of the office of court, prosecutor's office and other specified bodies, the states authorized on execution of functions.

6. Courts shall accept in attention that person acquires the status of the government employee from the moment of decision making about transfer it to position of the government employee irrespective of, it took the oath or not and also whether the rank is appropriated to it and whether it is warned it about the restrictions set by Art. 5 of the Law.

To category of positions of the government employees listed in the p. 2 of Art. 9 and Art. 25 of the Law of Ukraine of December 16, 1993. "About public service", the Cabinet of Ministers of Ukraine is granted the right in coordination with the relevant state bodies to carry also other positions. Therefore in each such case courts shall check availability of the act of the Cabinet of Ministers of Ukraine of reference of position of person which is made responsible, to category of government employees.

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