Defense in cases of official crimes: trends in judicial practice analyzed by Andriy Trigub

Recently, we have observed a trend when, in qualifying official crimes, the subject (official) is determined not by the name of the managerial position, but by the actual content of the functions and powers assigned to him. And this approach inspires cautious optimism among criminal law and process experts.

The associate partner of Attorneys at law Skliarenko, Sydorenko & Partners, Andriy Trigub examined the latest trends in judicial practice in criminal proceedings related to misconduct, during his speech at the 9th Kyiv Criminal Law Forum.

The lawyer recalled a rather complicated design of Part 3 of Art. 18 of the Criminal Code of Ukraine, which defines the content of the concept of “official”. Such, according to the code, are persons who permanently, temporarily or by special authority exercise the functions of representatives of the government or local government, and also permanently or temporarily hold positions in government bodies, local government bodies, enterprises, institutions or organizations related to the performance of organizational and administrative or administrative functions, or perform such functions by special authority, which a person is vested with an authorized body of the state government, local government, central government with special status, authorized body or authorized official of an enterprise, institution, organization, court or law.

In the context of the implementation of this norm in practice, A. Trigub noted a tendency to increase the number of private law officials held accountable, which was to a certain extent as a surprise to the public.

The expert cited several conclusions of the Supreme Court, which characterize the features of the qualification of the subject of crime in cases of official crimes.

So, in case No. 727/922/17, the panel of judges of the Second Trial Chamber of the Cassation Criminal Court of the Supreme Court drew attention to the fact that the performance by an ordinary employee of functional duties (in this case it was about labor protection duties), which entailed criminal legal consequences excludes liability under Art. 271 (Violation of labor protection legislation) of the Criminal Code, since such an employee is not an official.

In another criminal case No. 340/545/15-k, the same court noted the qualifications of a military official. The Supreme Court drew attention to the fact that the law distinguishes 3 groups of military officials:

1) military commanders;

2) military personnel performing organizational and administrative duties;

3) military personnel performing administrative duties.

The first of these persons are not representatives of the authorities. As for the other categories of military officials, in terms of their contents, organizational, administrative and administrative duties are only tied to the military sphere. Therefore, the performance by a soldier of the functions of an employee of a law enforcement body cannot be regarded as the performance of organizational, administrative or administrative duties.

Recall, the 9th Kyiv Criminal Law Forum, organized by the Ukrainian Bar Association, was held on December 6, in Kyiv. A. Trigub is the chairman of the AAU Criminal Law and Procedure Committee.