Distinguishing between Constituent Elements of Criminal Offenses in Light of the Practice of the Supreme Court of Ukraine

The problem of distinguishing between the offenses provided for in Part 2 of Article 191 and Article 364 of the Criminal Code of Ukraine lies in the complexity of establishing a legally significant boundary between abuse of official position as a means of misappropriating another person’s property and abuse of power without elements of embezzlement. The key feature that distinguishes the offense under Part 2 of Article 191 is the unlawful, gratuitous transfer of property into the ownership of the offender or other persons through the use of official position. This gives rise to judicial practice that requires a precise analysis of the scope of the subject’s authority, the legal status of the property, and the nature of the damage caused or benefit obtained, since misclassification of such actions may result in violations of the rights of participants in criminal proceedings and the issuance of unfounded decisions.

The object of Part 2 of Article 191 of the Criminal Code of Ukraine is that of proprietary relations. From an objective standpoint, this provision covers the appropriation, embezzlement, or taking possession of another person’s property through the abuse of official position by an official. The distinguishing feature of this form is that the property misappropriated by the offender is neither entrusted to them nor under their direct control; however, due to their official position, the subject of the criminal offense has the authority to manage or operate this property.

An essential element of the offense under Part 2 of Article 191 of the Criminal Code is the existence of specific powers vested in the accused to dispose of the relevant property. In cases involving allegations of misappropriation of another person’s property through abuse of official position, it must be proven that the accused had the right to exercise operational control over the property or possessed authority enabling them to influence those to whom the property was entrusted or who were responsible for it. In order to establish the guilt of an official of a private enterprise in the alleged offense, the prosecution was required to prove that, by virtue of their official position, the accused had the ability to influence the management of the university’s property and used that opportunity to convert the property to their own benefit. However, as determined during the trial, although the accused held an official position, their authority was limited to managing property owned by the private enterprise. Criminal Chamber of the Supreme Court of Ukraine, Decision of 16 April 2024, Case No. 404/6810/20 (Proceedings No. 51-4201km23).

A person who has reached the age of 16 may be held criminally liable for appropriation, embezzlement, or misappropriation of property through abuse of official position. In this context, the subject of appropriation or embezzlement may be either a private individual or an official, whereas the subject of misappropriation of another person’s property through abuse of official position may only be an official.

Only an official may be the subject of appropriation, embezzlement, or misappropriation of another person’s property through abuse of official position (Part 2 of Article 191 of the Criminal Code). In determining whether a person qualifies as an official, the definitions provided in paragraphs 1 and 2 of the Note to Article 364 of the Criminal Code shall apply.

Abuse of official position as a means of acquiring another person’s property refers to a situation where a person exceeds or violates their authority and uses organizational, managerial, administrative, or economic functions contrary to the interests of the service, in order to unlawfully and gratuitously convert another person’s property to their own benefit or to the benefit of others; gives unlawful instructions to a materially responsible subordinate to issue property; or obtains property based on fictitious documents, etc. – Resolution of the Supreme Court of 16 January 2024 in case No.  642/5561/14-k.

As determined by the Supreme Court in its Resolution of 30 November 2023 in case No. 521/14131/20, only an official may be the subject of misappropriation of another person’s property through abuse of official position. Such actions may only concern property that falls within the official’s competence, lies within their sphere of authority, has been entrusted to them, or over which they have been granted operational management powers by virtue of their position. Therefore, establishing the subject of the crime under Article 191 of the Criminal Code of Ukraine is inextricably linked to confirming the perpetrator’s status as an official.

At the same time, the panel of judges highlighted the established practice of the Supreme Court, according to which the defining feature that distinguishes the misappropriation of another person’s property through abuse of official position from other forms of unlawful encroachment on property is that the gratuitous conversion of such property for the benefit of the offender or other persons occurs through the deliberate and unlawful use of the opportunities provided by the official position. Such criminal use of authority may be expressed in the form of decisions, instructions, or other motivating (mandatory or otherwise) communications (Resolution of the Supreme Court of 1 June 2023 in case No. 461/1315/19).

The subjective aspect of the crime is characterized by direct intent, a mercenary motive, and a specific purpose.

According to Part 2 of Article 191 of the Criminal Code of Ukraine, liability is established only for the intentional appropriation, embezzlement, or misappropriation of another person’s property through abuse of official position by an official, provided that the perpetrator’s actions are marked by direct intent, mercenary motives, and the corresponding goal.

The mandatory subjective characteristics of embezzlement of property through abuse of official position by an official include a mercenary motive – the desire to unlawfully enrich oneself at the expense of another’s property – and a mercenary purpose – the goal of enriching oneself or unlawfully enriching other persons whose interests the perpetrator supports.

The Resolution of the Supreme Court of Ukraine dated 9 February 2022, in case No. 707/661/17, establishes that the objective side of the crime under Part 1 of Article 364 of the Criminal Code of Ukraine comprises three mandatory elements:

• the act of a public official using authority or official position contrary to the interests of the service, which consists of specific actions or omissions by the subject aimed at obtaining any unlawful benefit for themselves or another natural person or legal entity;
• consequences manifested in causing significant harm to the rights, freedoms, and interests of individual citizens protected by law, or to the interests of the state, society, or legal entities; and
• a causal link between the act and the resulting consequences. Abuse of power, in turn, is characterized as the use by an official—who is a representative of the legislative, executive, or judicial branch—of their powers and opportunities to issue binding demands and make decisions affecting other individuals or legal entities, contrary to the interests of the service.

The subject of the crime is special: it can only be a representative of the authorities, local self-government, or another public law official.

According to the provisions of Part 3 of Article 18 of the Criminal Code of Ukraine, public officials are individuals who permanently, temporarily, or by special authority perform the functions of representatives of the authorities or local self-government, as well as those who permanently or temporarily hold positions in state authorities, local self-government bodies, enterprises, institutions, or organizations related to the exercise of organizational, administrative, or economic functions, or who perform such functions under special authority granted by an authorized state authority, local self-government body, central state administration body with special status, authorized body or official of an enterprise, institution, organization, court, or law-enforcement agency.

Given the systemic interconnection of the provisions contained in Articles 18, 364, and 191 of the Criminal Code of Ukraine, it follows that an official who is a representative of the authorities or local self-government may abuse only his or her authority, the limits of which are defined by the relevant law or other regulatory legal acts. Meanwhile, an official holding a position related to the performance of organizational, administrative, or economic functions, who must act within the scope of the official rights and duties specifically assigned to them, may abuse only his or her official position.

Regarding the relationship between the forms of criminal offense provided for in Article 364 of the Criminal Code, namely abuse of power and abuse of official position.

Representatives of the authorities differ from other categories of public law officials in that they have the right to issue demands and make decisions that are binding on individuals and legal entities regardless of their subordination or departmental affiliation, as well as to exercise other authoritative powers.

The commission of a criminal offense under analysis in these proceedings by a representative of authority is carried out in the form of abuse of power.

It should be noted that an official may simultaneously perform the functions of a representative of authority and also carry out organizational, administrative, or economic functions (for example, managing a certain team or area of activity). In such cases, if the official abuses these relevant powers, they may commit a criminal offense under Article 364 of the Criminal Code through abuse of official position.

The distinction between forms of socially dangerous acts constituting a criminal offense under Article 364 of the Criminal Code – namely, abuse of power versus abuse of official position—is determined by the content of the powers, rights, duties, and opportunities granted to the person for performing their assigned functions.

The Supreme Court rulings of 2 November 2022, in case No. 724/1590/19 and 16 November 2022, in case No. 755/12530/18, clarify the subjective aspect of the criminal offense under Article 364 of the Criminal Code of Ukraine.

The subjective aspect of abuse of office is characterized by guilt in the form of intent. A mandatory feature of this subjective aspect is the goal: to obtain any unlawful benefit for oneself or for another natural person or legal entity. Although the text of the criminal law does not explicitly mention the motive for committing this offense, the purpose of obtaining unlawful benefit – whether for oneself or another – is inherently connected to the motives of the perpetrator or third parties. These motives are immanent to the inner mental sphere of the offender and serve as a driving force behind the unlawful conduct.

Particular attention should be given to the rulings by the Supreme Court of Ukraine of 23 April 2024, in cases No. 686/25943/18 and No. 278/1664/20, which established the legal position regarding the necessity to prove the motives of interest of a person accused of abuse of office in obtaining unlawful benefits for another individual.

In judicial practice, it is important to distinguish between the elements of criminal offenses provided for in Part 2 of Article 191 and Article 364 of the Criminal Code of Ukraine. Abuse of official position by an official in committing the crime under Part 2 of Article 191 is considered a means of appropriating another person’s property and, therefore, constitutes a special type of abuse of office.

For a crime to be qualified under Part 1 of Article 364 of the Criminal Code, the official’s actions must be motivated by their official position, and the acts performed or omitted improperly must fall within the scope of their official duties. Thus, it follows from this legal position that an official’s actions are subject to evaluation under Article 364 of the Criminal Code only if the consequences arise from the proper or improper performance of their official duties (Decision of the Criminal Court of Cassation of 18 July 2023, in case No.  991/3966/20).

The appropriation of another person’s property through abuse of official position should be distinguished from abuse of power or official position committed for mercenary motives, which constitutes a crime under Article 364 of the Criminal Code. Abuse of official position by an official in committing a crime under Part 2 of Article 191 of this Code is a means of acquiring another person’s property and, therefore, represents a special form of abuse of office. In contrast, mercenary abuse of power or official position, as provided for in Article 364 of the Criminal Code, involves the official not taking possession of another person’s property, but acting contrary to the interests of the service and unlawfully deriving benefits from their official position, damage to property owned by the owner was caused. Thus, the distinction lies in the fact that in a crime under Article 364 of the Criminal Code, the official’s abuse of position causes property damage to the owner without at least one element of theft of another person’s property. Unlike the offense under Part 2 of Article 191 of the Criminal Code, abuse of power or official position under Article 364 may be accompanied by paid seizure of another person’s property, where the property is replaced by an equivalent item – such as other property, money, or use of another’s property for personal needs without intent to take possession – including overvaluation of the cost of work performed.

A systematic analysis of legal provisions establishes that when an official abuses their position as a means of embezzling another person’s property – where the guilty party unlawfully seizes and disposes of the property for their own benefit or that of third parties – such actions constitute a specific form of abuse of official position and should be classified under Article 191 of the Criminal Code. Conversely, if the abuse of official position is not accompanied by theft of another person’s property in any form, is not related to the unlawful seizure or gratuitous conversion of such property into one’s own property or third-party property, but results in the acquisition of other benefits, these actions fall within the scope of Article 364 of the Criminal Code. (For more details, see the Supreme Court of Ukraine ruling of 23 August 2018, in case No. 0912/1638/12 (Proceedings No. 51-2735km18) at the following link: http://reyestr.court.gov.ua/Review/76207261).

The problem of distinguishing between the crimes provided for in Part 2 of Article 191 and Article 364 of the Criminal Code of Ukraine lies in the complexity of differentiating abuse of office as a means of acquiring property from abuse of power without any signs of embezzlement. The main difference is the nature of the benefit obtained: Part 2 of Article 191 concerns the gratuitous, illegal seizure and conversion of another person’s property into the property of the guilty party or third parties, while Article 364 covers other forms of unlawful benefit without the fact of appropriation.

Thus, the criminal offenses under Part 2 of Article 191 and Article 364 share common features –presence of material damage, direct intent, and a special subject. The key difference lies in the focus of the act: in the first case, abuse of official position is a means of embezzlement, while in the second, it is an independent means of obtaining unlawful benefits. This distinction often causes difficulties in practice, leading to frequent reclassification of offenses during investigation. This situation indicates the need for clearer legislative specification of the elements of official crimes in future editions of the Criminal Code of Ukraine.