Problems of Interpretation and Application of Criminal Law Prohibitions on Illegal Enrichment in Ukraine

Abstract

The purpose of the article is to highlight problematic aspects of the criminal law characterization of illicit enrichment and, on this basis, to propose ways to improve the application of the current criminal law. The methodology involves a comprehensive analysis of the provisions of the current criminal legislation of Ukraine, the practice of its application, the case law of the European Court of Human Rights, and relevant scientific sources, followed by the formulation of the author’s conclusions and recommendations. The research employed such scientific methods as logical-semantic, formal-logical, system-structural, comparative-legal, and modeling approaches. The studyrevealed the degree of consistency between the criminal law prohibition governing liability for illicit enrichment and the principles of criminal law; the specific features of criminal law assessment of indirect illicit enrichment; and the impossibility of participation by a general subject of a criminal offense in such enrichment.

Conclusions. It has been established that the criminal law prohibition concerning illicit enrichment, although based on the presumption of the corrupt origin of the assets of a person authorized to perform functions of the state or local self-government, in fact allows for criminal liability even in cases where the assets were acquired through non-corrupt means. It is proven that when applying this prohibition, one should proceed from the premise that unlawful conduct leading to illicit enrichment is the behavior exclusively of the relevant subject, not of other persons (including close relatives). Any other interpretation would contradict the principle of personal criminal liability. It is argued that the fact of indirect acquisition of assets must be established according to the standard of proof “beyond reasonable doubt,” which differs from the “preponderance of evidence” (“balance of probabilities”) standard applied in cases concerning the recognition of assets as unjustified and their recovery to the state. The study substantiates the lack of legal grounds for qualifying the conduct of a general subject under Part 5 of Article 27 and Article 368-5 of the Criminal Code of Ukraine as aiding and abetting indirect illicit enrichment.