CRIMINAL LAW ASPECTS OF BRIBERY PROVOCATION
Journal Title: Юридичний науковий електронний журнал - Year 2016, Vol 1, Issue
Abstract
The offense under Article 370 of the Criminal Code of Ukraine «Bribery Provocation» is analyzed in the paper, questions of the qualification of this crime of office are discussed. Position about the appropriateness of preserving the examined criminal law prohibition is argued. Its outlining is based on the fact that: the tip of the fight against corruption should be aimed at prevention, detection and of crimes committed, not at the creation (generation) of new, at pushing mentally unstable subjects towards violations of criminal law; provocation of bribery can cause serious damage to the constitutional rights and freedoms of man and citizen, to be used as a powerful tool for illegal influence on others. The existence of separate criminal liability for bribery provocation is also explained by the desire to prevent artificial commission of crimes of respective category, to provide the order of their discovery and disclosure under the Criminal Procedure Code of Ukraine. The legal nature of the provocation of bribery is comprehended. It is established that the legislator in 2015, by abandoning the traditional, under the Criminal Code of Ukraine, understanding of bribery provocation as the conscious creation by an official of circumstances and conditions that cause the giving or taking undue advantage, has eventually consented to the theoretical approach “provocation of crime = incitement to crime”. It is shown that with bribery provocation it is also possible such influence on a person that is not covered by the criminal law concept of incitement and that, accordingly, cannot be qualified under the current version of Art. 370 of the Criminal Code of Ukraine. This applies, in particular, to the: 1) creation of artificial barriers and challenges, aimed at the generation of person’s belief that the issues he is interested to resolve, can be resolved only through bribery; 2) the use of deception, when the perpetrator, by falsifying the will of another person commits provocation by spreading false information (for example, about the possibility of solving various issues through bribery, about the desire of a specific person to obtain or provide illegal benefits). Those kinds of provocative behavior that are not recognized as incitement due to the lack of two-way subjective communication or because of other reasons, and therefore are not covered by the disposition of part 1, Article 370 of the Criminal Code, and under the circumstances may form in other crime against official service (for example, under Article 365). The problem of distinguishing legitimate provocation of bribery from legal field operations aimed at exposing corruption offenses is exposed. It is proved that in such differentiation both provisions of the relevant legislation of Ukraine and decisions by the European Court of Human Rights should be taken into account. It is established that the identification by the public official of the existing and outwardly expressed proper intention (to give, offer or promise undue advantage, to accept the offer, promise or to receive such benefit) and creating by such official of opportunities for the implementation of the said intent, if there is no incitement to such acts by persuasion, threats, coercion or by any other means with the purpose of subsequent exposure, cannot be considered as criminal bribery provocation.
Authors and Affiliations
О. О. Дудоров
Keywords
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