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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE

of April 26, 2002 No. 5

About court practice in cases on bribery

For the purpose of ensuring identical and correct application of the legislation in cases on bribery and in connection with the questions arising in court practice, the Plenum of the Supreme Court of Ukraine DECIDES:

1. Draw the attention of courts that according to the current law only officials can bear responsibility for taking of a bribe. In case of permission of question whether this or that person is official, it is necessary to be guided by rules which are stated in Items 1 and 2 of the note to Art. 364 of the Criminal code of Ukraine (further UK).

At the same time it must be kept in mind that employees of state bodies and their device who are given the right in limits of the competence to put requirements belong to public agents, in particular, and also to make the decisions obligatory for accomplishment by legal entities and physical persons irrespective of their departmental accessory or subordination.

Organizational and administrative obligations are obligations on implementation of management of industry, labor collective, the site of work, productive activity of certain workers at the companies, in organizations or the organizations irrespective of pattern of ownership. Such functions are performed, in particular, by heads of the ministries, other central executive bodies, state, collective or private enterprises, organizations and organizations, their deputies, heads of structural divisions (chiefs of workshops, managers of departments, laboratories, departments), their deputies, persons who direct sites of works (masters, foremen, foremen and so forth).

Administrative type duties are obligations on management or the order of the state-owned, collective or private property (establishment of procedure for its storage, conversion, realization, ensuring control of these transactions and so forth). In this or that amount chiefs of the planned and economic, supplying, finance divisions and services managing warehouses, shops, workshops, studio, their deputies, heads of departments of the companies, departmental auditors and controllers and so forth have such powers.

Person is official not only when it performs the corresponding functions or carries out obligations constantly and and when it does it temporarily or on special powers provided that the specified functions or obligations are assigned to it by authorized body or the competent official.

Employees of the companies, organizations, organizations which carry out professional (the lawyer, the doctor, the teacher and so forth), production (for example, the driver) or technical (the typist, the security guard, and so forth) functions, can be recognized officials only provided that together with these functions they carry out organizational and administrative or administrative type duties.

Officials can be recognized both citizens of Ukraine, and foreigners and stateless persons.

2. Responsibility for taking of a bribe comes only provided that the official received it for accomplishment or failure to carry out of such actions which it could or owed execute with use of the power provided to it, assigned to it organizational and administrative either administrative type duties, or such which it was not authorized to make, but to making of which by other officials could take measures thanks to the official position.

Receipt of illegal remuneration by the official from subordinate or under control persons for patronage or connivance, for the decision in their advantage of questions which enter its competence it is also necessary to regard as taking of a bribe.

It is necessary to recognize actions of guilty persons as giving and taking of a bribe and when conditions of receipt of material values or services though specially and did not make a reservation, but participants of crime realized that person bribes for the purpose of satisfaction of these or those own interests or interests of the third parties.

3. Courts should mean that the objective party of the crime provided by Art. 368 of UK consists in taking of a bribe in any kind. As accomplishment or failure to carry out by the official of the corresponding actions is behind borders of the objective party of this crime, responsibility comes irrespective of, to or after making of these actions the bribe was got, was or it was not caused before their making, executed or the official caused did not execute it was going or not to do it.

If the actions executed by the official in connection with taking of a bribe are criminal (office counterfeit, authority misuse or official position and so forth), committed it is necessary to qualify on cumulative offenses.

4. As taking of a bribe is crime for profit, its subject has exclusively property nature. The property (money, values and other things), the right to it (documents which grant the right to receive property, to use it or to require accomplishment of obligations and so forth), any actions of property nature (transfer of property benefits, refusal of them, refusal of the rights to property, unpaid provision of services, sanatorium or tours, carrying out construction or repair work and so forth) can be it.

Services, privileges and benefits which have no property nature (the laudable characteristic or performance in the press, provision of prestigious work and so forth) cannot be recognized bribe subject. Obtaining them can be regarded as other (not mercenary) interest in case of authority misuse or official position and in the presence to that the bases to be qualified by the corresponding part of Art. 364 of UK.

5. The actus reus, UK provided by Art. 368, is available not only when the official got bribe for itself personally and and when it made it for the benefit of persons close to it (relatives, acquaintances and so forth). At the same time does not matter, the bribe subject how exactly was actually used.

6. Bribery consists in transfer to the official of property, the right to property or making to its advantage of actions of property nature for accomplishment or failure to carry out of action which it shall or could execute with use of official position or the power provided to it. The structure of this crime is available not only when it is bribed for making of certain actions for the benefit of the one who gives it and and when it becomes for the benefit of other physical persons or legal entities.

7. Giving and obtaining as bribes of objects which sale and acquisition is independent actus reus (fire (except smooth-bore hunting), cold weapon, ammunition or explosives, drugs, toxic or strong agents and so forth) forms cumulative offenses and is qualified by the corresponding part of Art. 369 or Art. 368 and that article of the Criminal Code which provides responsibility for sale or acquisition of these objects.

8. Courts should mean what can be bribed and turn out also in the veiled form - under the guise of the conclusion of the legal agreement, groundless charge and salary payment or awards, nonequivalent fee of different nature (consultation, examination and so forth).

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