Conclusions of the Supreme Court on the subject of trading in influence (Part 2 of Article 369-2 of the Criminal Code of Ukraine): a critical theoretical analysis

Abstract

The article analyzes the conclusion of the Joint Chamber of the Criminal Court of Cassation of the Supreme Court (cited in the decision of March 29, 2021) on the recognition of the subject of trading in influence (Part 2 of Article 369-2 of the Criminal Code of Ukraine) of any natural person who has reached the age of criminal responsibility. It has been established that such an interpretation of the characteristics of the subject of this crime may cause negative legal consequences of a systemic nature. In particular, such an interpretation may lead to a violation of the system of criminal law on corruption bribery, which is already provided for in the Criminal Code of Ukraine, and according to which the trading in influence by officials or persons providing public services qualifies under Article 369-2. As a result of the new interpretation of the signs of the subject of trading in influence, certain types of such a crime will be qualified under Article 368 of the Criminal code of Ukraine, and Article 369-2 will cease to be such that in all cases has signs of corruption. Such a decision does not comply with the provisions of the UN Convention against Corruption, in which the trading in influence under Article 18 of the Convention is recognized as an independent type of corruption crimes. Expanding the range of subjects of crime under Part 2 of Article 369-2 of the Criminal code of Ukraine will also lead to competition of this article with other articles of this Code about non-corruption crimes. Article 369-2 will have an advantage in application and provide for stricter liability, but there is no legal basis for such an increase in liability. Similarly, Article 369-2 may unreasonably apply to actions that are not socially dangerous. It is substantiated that the provisions of Part 3 of the note to Article 354 of the Criminal code of Ukraine have direct value for correct definition of the subject of trading in influence (Part 2 of Article 369-2 of the Criminal Code). According to them, as well as taking into account the systemic links of this criminal law, the subjects of this crime should be recognized as an official or a person who provides public services. This article of the Code should be criminally liable for bribery to trading in influence (opportunities) associated with the official (in a broad sense) powers of such persons.