Some Issues of Practical Application of Criminal Liability for Obtaining Illegal Benefit and Distinguishing it from Provocation of Bribery

The subject of provocation of a bribe is a long-standing matter of scientific research and discussions both in the field of domestic criminal law and criminal law in foreign countries, particularly in European Union countries.

At the same time, some aspects of the application of criminal responsibility for committing one of the most common corruption crimes – obtaining illegal benefit and most importantly – obtaining proper and admissible evidence of the commission of such a crime, which can be assessed by the court for making an appropriate criminal sentencing in Ukrainian legislation are quite contradictory or even completely unresolved.

Thus, the disposition of Article 368 of the Criminal Code of Ukraine establishes criminal liability of state government official or local self-government official for accepting an offer, promise or receipt of illegal benefit by an official, as well as a request to provide such a benefit for himself or a third person for commission or non-commission by such an official person in the interests of the one who offers, promises or provides an unlawful benefit, or in the interests of a third person, any action using the power or official position conferred on him.

Meanwhile, the criminal law also establishes responsibility for an offer or promise to an official to provide him/her or a third party with an unlawful benefit, as well as the provision of such a benefit for committing or non-committing by the official in the interests of the person who offers, promises or provides such a benefit, or any action using the power or official position conferred on him in the interests of a third person – Art. 369 of the Criminal Code of Ukraine.

That is, in accordance with the requirements of national legislation, both an official who receives or agrees to receive an unlawful benefit (bribe) and a person who provides or offers it are subject to criminal liability, which fully meets the requirements of Articles 2 and 3 of the European Criminal Law Convention on Corruption (ETS 173), which was ratified by Ukraine on 18 October 2006 and came  into force for Ukraine on 1 March 2010, as well as other acts of national legislation in the field of combating corruption.

Therefore, ideally, as a result of appropriate preventive actions (operational investigative measures or covert investigative (detective) actions) taken by law-enforcement agencies, at least two persons should be held criminally liable – the person who received (or agreed to receive) a bribe and the persons who provided this bribe (or put forward a proposal for providing a bribe).

However, the most common practice in national criminal proceedings is bringing to criminal responsibility just the official who received illegal benefit from another person who cooperates with law-enforcement agencies, and who is usually the applicant for corruption in such criminal proceedings.

Further on, such a person, as a rule, acquires the status of a witness (an applicant or victim) and this status is preserved until the end of criminal proceedings.

In such criminal proceedings, accusation of the official who received or agreed to receive illegal benefit is to a certain extent (except for the materials of Secret investigative (search) actions) based on the testimony of such an applicant despite the presence of a crime component in the actions of the latter provided for in Article 369 of the Criminal Code of Ukraine.    

As provided for in Part 5 of Art. 354 of the Criminal Code of Ukraine – a person who offered, promised or provided illegal benefit is released from criminal liability for the crimes provided for in Articles 354, 368-3, 368-4, 369, 369-2 of this Code if after offering, promising or providing illegal benefit, he/she before receiving information about this crime from other sources by a body whose official is empowered by legislation to report suspicion, voluntarily reported what happened to such a body and actively contributed to the disclosure of a crime committed by a person who received an illegal benefit or accepted his/her offer or promise.

In accordance with the requirements of Art. 44 of the Criminal Code of Ukraine:

1. A person who has committed a crime shall be released from criminal liability in the cases provided for by this Code.
2. Exemption from criminal liability in those cases provided for by this Code shall be carried out exclusively by the court. The procedure for exemption from criminal liability is established by law.

It is the Criminal Procedure Code of Ukraine that establishes the procedure for releasing a person from criminal liability, in particular, Article 285 – 288, according to the content of which, exemption from criminal responsibility is possible only in relation to the suspect or the accused.

Therefore, based on the content of the disposition of Part 5, Art. 354 of the Criminal Code of Ukraine, taking into account the provisions of Part 1, Art. 214 of the Criminal Code of Ukraine, the possibility of using the applicant’s testimony as a witness with regard to a crime being committed by an official under the corresponding part of Art. 368 of the Criminal Code of Ukraine is possible only if the following conditions are met:

• appeal from such a person to an authorized official of a law-enforcement body with a statement about the criminal offenses committed by him/her and the official provided for in Art. 369 and 368 of the Criminal Code of Ukraine and entering relevant information into the Unified Register of Pre-Trial Investigations;
• receipt by such a person of a notification of suspicion of committing a criminal offense provided for by Art. 369 of the Criminal Code of Ukraine;
• adoption by the court of a decision on the release of such a suspect from criminal liability based on the relevant petition of the prosecutor.
• Only after that can the testimony of such a person be considered as proper and admissible evidence in the relevant criminal proceedings.

In the opposite case, questioning of such a person by the court as a witness who actually committed joint crimes with the accused person and was not released from criminal responsibility in accordance with the procedure established by law, should not be recognized as proper and admissible evidence, because such a status of this person will contradict the requirements of Art. 65 and Part 3 of Art. 95 of the CPC of Ukraine.

A separate case, which is quite often used by law-enforcement officers when receiving such applications and entering information based on them into the Unified Register of Pre-Trial Investigations, is the indication of a qualifying feature – the demand for an unlawful benefit, which immediately classifies such a crime as a serious one regardless of the subject composition and the size of the unlawful benefits and enables the use of such evidence-gathering measures as secret investigative (search) actions, and the applicant is granted the status of an alleged victim in such criminal proceedings.

According to the established law-enforcement judicial practice of the Supreme Court of Ukraine set out in the resolutions on cases No. 5-13кс13 of May 23, 2013, No. 5-14кс 12 of 4 October 2012, No. 5-13кс13 of 23 May 2013, No. 5-14кс13 of 30 of May 2013, No. 5-28кс13 of 5 September 2013, and No. 5-124кс15 of 21 January  2016, and from the legislative definition it follows that such a feature as extorting a bribe can be charged with the presence of three main factors:

1) the initiator of giving (receiving) a bribe is an official – the bribe-taker;

2) an offer to give (receive) a bribe has the nature of a demand (coercion), which is supported by either a) an open threat, or b) the creation of such conditions that convince the bribe-giver of the presence of a real danger (hidden threat) to his/her rights and legitimate interests, which forces him/her to agree to the demand of the bribe-taker;

3) actions, the performance (non-performance) of which the extortionist threatens, are determined by his official position and, most importantly, are of an illegal nature or aimed at harming only the rights and legitimate interests of the bribe-giver.

The most significant feature of extortion is that the coercion of a bribe can be committed only by means of threat of harming the legitimate interests of a person which are protected by law.

At the same time, legitimate interests should be understood as interests that are ensured by the provisions of the law (to which normative criteria can be applied), as well as those that do not contradict current legislation.

According to the explanations contained in the Decision of the Constitutional Court of Ukraine dated December 1, 2004 No. 18-пр/2004, an illegal interest, unlike a protected interest, is not protected by law or by right and should not be satisfied or secured by it.

According to the legal definition, a threat by a bribe-taker to take legal actions against the bribe-giver cannot be considered as solicitation of a bribe, even though they affect the legal interests of the latter.

If the bribe-giver is interested in the illegal, improper behavior of an official, the bribe-giver seeks to circumvent the law, the established procedure for solving this or that issue, achieve satisfaction of his/her illegal interests, avoid deserved responsibility, receive illegal benefits or advantages, etc., then demanding a bribe is excluded.

Also, similar conclusions are contained in the Resolutions of the Supreme Court, in particular from November 20, 2018 in case 621/2190/16-k, of 17 April 2019, in case 724/179/17-к of 5 December 2019 in case 464/8036/15-к, of 26 January 2022, in case 677/450/18-к.

A completely logical and well-founded question follows from the above:

– if the person who is the applicant in the criminal proceedings regarding the alleged extortion of an unlawful benefit from him/her acting under the control of the law-enforcement authorities provides such an unlawful benefit precisely because of the unlawful behavior or inaction of the relevant official then, whether such joint actions of this person and authorized persons constitute the prosecution (including the prosecutor, who, in accordance with Part 4 of Article 246 of the Criminal Procedure Code of Ukraine, makes a procedural decision to monitor the commission of a crime) – provocation of bribery, for which criminal liability is provided for under Part 2 of Article 370 of the Criminal Code of Ukraine.

In this case, there is no claim of undue advantage in advance, since the legal rights and interests of the applicant are not affected in any way and such a person does not suffer from the arbitrary actions of the official in question.

That is, in this situation, there are no valid grounds for providing an unlawful benefit under the threat of violation of the legal rights and interests of a person, and the opposite may indicate the assistance of law-enforcement officers in the implementation of such a person’s illegal aspirations by allegedly exposing the “corruptor” and removing him from positions as a result of bringing the latter to criminal responsibility.

Therefore, the sole purpose of such joint actions of the applicant and law-enforcement agencies is exclusively to provide an illegal benefit to an official in order to then later expose the person who accepted the offer, promise or received such a benefit, which fully corresponds to the disposition of Art. 370 of the Criminal Code of Ukraine – bribery provocation.

As already noted above, as a rule, a person who provides an illegal benefit under the control of law-enforcement agencies is not exempted from criminal liability under Article 369 of the Criminal Code of Ukraine.

The provision in part 5 of Art. 354 of the Criminal Code of Ukraine in the Special Part of the Criminal Code is not identical to the norms contained in Chapter VIII of the General Part of this Code (Circumstances excluding the criminal illegality of an act) and only specifies the circumstances under which a person can be released by the court from criminal liability under Art. 369 of the Criminal Code of Ukraine.

The participation of such a person in the control of the commission of a crime in the form of a special investigative experiment does not lead to an automatic ascertainment of the fact that his/her actions do not constitute a crime provided for offering, promising or providing an official with an unlawful benefit, but can only be regarded by the court as active assistance in the disclosure of this crime.

Incidentally, the courts of the first, appellate and cassation instances always ignore the fact that such a person, who de jure is an accomplice to this crime – giving and receiving a bribe, but de facto has the status of a witness or a victim, without being released from criminal liability by the court, especially in cases where the undue benefit is provided to stimulate the misconduct of an official, and not at the risk of violating the legal rights and interests of the bribe-giver.

Basing the guilty verdict on the testimony of such a person, who was not released from criminal responsibility in accordance with the procedure established by law, constitutes a violation of the general principles of criminal justice, particularly Articles 8 and 9 of the Criminal Procedure Code of Ukraine.

If the granting of an illegal benefit is conditioned by a request to an official to perform certain illegal actions for the benefit of an interested person, then it obviously follows that the official will never on his own initiative perform such actions with the aim of possibly obtaining illegal advantage in the future, that is, without the intervention of law-enforcement agencies and not the official would receive such an unlawful benefit, which definitely indicates the presence of provocation of a bribe.

At the same time, the Unified State Register of Court Decisions almost does not contain sentences under Art. 370 of the Criminal Code of Ukraine despite the presence in some acquittals under Art. 368 of the Criminal Code of Ukraine of the circumstances established by the courts on the provocation of a bribe.

The existing gap in the provisions of substantive criminal law should be eliminated by making appropriate changes to criminal law.

In particular, by legalizing the provocation of a bribe as a significant deterrent to the commission of this series of corrupt acts with normalization only in the criminal law of the status of a person as a whistleblower of corruption who, under the control of law-enforcement agencies, provides an undue benefit to an official and does not bear criminal responsibility for it.

Or on the contrary, by more significant detailing of the disposition of Art. 370 of the Criminal Code of Ukraine with the indication that providing illegal benefit to the official in order to induce him to commit illegal actions or make illegal decisions, that is, unforeseen or prohibited by the requirements of the law, or with a significant violation of them should be considered as inciting the person to accept an offer, promise or to receive illegal benefits.