Peculiarities of the objective side of the failure of the declarant to submit a declaration of a person authorized to perform the functions of the state or local self-government

Abstract

Problem setting. At first glance, clarifying the content of the objective side of the failure of the declarant to submit a declaration of a person authorized to perform the functions of the state or local self-government (Article 3663 of the Criminal Code) does not cause any difficulties. However, there really would not be any problems in establishing these signs, if not for the presence of Art. 1726 of the Code of Administrative Offenses «Violation of financial control requirements». In this regard, both in the theory of criminal law and in practice, the problem of distinguishing between these offenses has arisen, which requires a balanced and reasonable approach to its solution. Analysis of recent research and publications. The issue of liability for criminal offenses related to the declaration of assets by persons authorized to perform the functions of the state or local self-government has been studied by such scholars as V. V. Andrieshyn, O. S. Bondarenko, D. F. Volonets, Y. V. Hrodetskyi, O. O. Dudorov, Z. A. Zahynii, V. M. Kyrychko, I. I. Mytrofanov, D. M. Miskiv, M. I. Khavroniuk, V. S. Shchyrska, and others. However, many controversial issues have not been finally resolved. The purpose of research is to establish the peculiarities of the objective side of the failure of a declarant to submit a declaration of a person authorized to perform the functions of the State or local self-government (Article 3663 of the Criminal Code) and to distinguish it from the violation of financial control requirements (Article 1726 of the Code of Administrative Offenses). Article’s main body. Failure to submit a declaration may be committed only in the form of inaction. A prerequisite for criminal liability for inaction is that the person has an obligation to act in a certain way and that in these specific conditions there is a real opportunity to act in this way, i.e., no valid reasons for failure to fulfill the obligation. The obligation of certain entities to file declarations is established by the Law of Ukraine “On Prevention of Corruption”. The law does not provide for an exhaustive list of valid reasons for failure to file a declaration, since it is impossible to list all the various valid reasons a priori. Establishment of certain signs of the objective side of the failure of the declarant to submit the declaration of a person authorized to perform the functions of the state or local self-government (Article 3663 of the Criminal Code) is complicated due to the problems with distinguishing this provision from Article 1726 of the Code of Administrative Offenses «Violation of Financial Control Requirements». This issue can be resolved as follows. Thus, in accordance with part 2 of Article 512 of the Law of Ukraine «On Prevention of Corruption», if the results of the control establish that the declaring entity has not submitted a declaration, the National Agency shall notify such entity in writing of the fact of failure to submit a declaration, and the declaring entity shall submit a declaration within ten days from the date of receipt of such notification in accordance with the procedure specified in part one of Article 45 of this Law. Therefore, if the declaring entity fails to submit the declaration within the statutory time limits, it must be brought to administrative liability under Part 1 of Article 1726 of the Code of Administrative Offenses. If, after ten days from the date of receipt of a notification from the NACP on the fact of failure to submit the declaration, the subject fails to submit it, criminal liability under Art. 3663 of the Criminal Code should be imposed. Conclusions and prospects for the development. The criminal offense under Art. 3663 of the Criminal Code should be considered completed after ten days from the date of receipt of the notification from the NACP on the need to file a declaration. To resolve the problems with the distinction between Art. 3663 of the CC and Art. 1726 of the CAO, this provision should be enshrined in law. At the same time, it would be advisable to provide for the possibility of exemption from criminal liability in Art. 3663 of the CC if a person submits a declaration before the court verdict.