Article 368 of the Criminal Code: receiving an undue advantage. Which lines of defense work?

• Article 368 of the Criminal Code covers not only receiving an advantage, but also accepting an offer, accepting a promise and requesting such an advantage.
• The offense is complete as soon as an offer or promise is accepted, so the actual handover of money is not a required element.
• The perpetrator is a special subject: only an official within the meaning of the note to Article 364 of the Criminal Code can be held liable.
• The amount of the undue advantage determines the part of the article: significant from 100 tax-free minimum incomes, large from 200, especially large from 500.
• The evidence almost always rests on covert investigative (search) actions, and their lawfulness is subject to review by the defense.

A charge under Article 368 of the Criminal Code is usually built in advance: by the time of the arrest, the pre-trial investigation body already holds records of covert actions, audio and video recordings and marked banknotes. That is why the suspect gets the impression that the outcome is predetermined. Yet the main weak points of the prosecution lie in exactly those materials. Attorney Oleksii Kobets, who has more than 25 years of practice in criminal cases and a background in pre-trial investigation bodies, examines how such a charge is structured and where the defense can work.

What does Article 368 of the Criminal Code provide?

Part 1 of Article 368 establishes liability of an official for accepting an offer or promise of an undue advantage, for receiving such an advantage, and likewise for requesting it for themselves or for a third party. There is one condition: the advantage is linked to the official doing or refraining from any act with the use of the authority or official position granted to them, in the interests of the person who offers, promises or provides the advantage, or in the interests of a third party.

Three conclusions follow from this construction and shape the defense.

First. The subject matter is an undue advantage, not only money. It may be money, other property, benefits, privileges, services or intangible assets that are offered, promised, provided or received without lawful grounds. The concept of undue advantage is defined in the Law of Ukraine “On Prevention of Corruption”.

Second. The moment of completion is moved to an early stage. The act is complete as soon as the offer or promise is accepted, or as soon as a request for the advantage is made. As a result, the burden of proof shifts to the content of conversations and the person’s conduct rather than the fact of a handover, and the interpretation of recordings becomes decisive.

Third. The subject is special. Only an official can be held liable under Article 368. The criteria are set out in the note to Article 364: a person who permanently, temporarily or under special authority exercises the functions of a representative of state or local government, or who holds a position involving organizational and managerial or administrative and economic duties. Where these criteria are absent, qualification under Article 368 is excluded, and the acts may, where there are grounds, fall under other provisions, in particular Article 354 of the Criminal Code.

What determines the qualification and the sentence?

Severity increases primarily with the amount of the undue advantage. A significant amount is one hundred or more times the tax-free minimum income, a large amount two hundred or more times, an especially large amount five hundred or more times.

Part 1 provides for a fine, probation supervision or imprisonment for two to four years. Part 2 applies where the amount is significant and provides for imprisonment for three to six years. Part 3 covers a large amount, repeat commission, commission by a group of persons by prior conspiracy, a combination with extortion, and commission by a person holding a responsible position, and provides for imprisonment for five to ten years with confiscation of property. Part 4 concerns an especially large amount or a person holding an especially responsible position and provides for imprisonment for eight to twelve years with confiscation of property. Each part additionally provides for a ban on holding certain positions or engaging in certain activities.

For this reason, whether the amount and the qualifying elements are proven is a separate subject of the defense: the difference between the parts is measured in years of imprisonment and in whether confiscation applies.

Example. The pre-trial investigation body calculates the advantage on the basis of the entire sum mentioned in a conversation, whereas only part of it was actually handed over and the rest rests on assumptions. The defense raises the issue of qualification under the part of the article that corresponds to the proven amount; the final assessment is made by the court.

Is the link between the advantage and official powers proven?

A required element of the offense is the link between the undue advantage and acts that the person can perform or refrain from performing precisely by using the authority or official position granted to them. Absence of that link excludes the offense.

In practice this link is often justified by the mere fact that the person holds a position. But a position and the scope of powers are not the same thing. The review covers the regulation on the body or unit, the job description, orders on the distribution of duties, and whether the matter for which the advantage was allegedly provided fell within the person’s competence at all.

Example. The head of a structural unit is charged with facilitating the resolution of a matter that, under the distribution of duties, belonged to a different department. Documents on the actual scope of powers are added to the case file as grounds for revisiting the qualification.

What does reviewing covert investigative actions give?

In this category of cases, evidence is obtained mainly through covert investigative (search) actions: audio and video surveillance of a person, interception of information from electronic information systems and communication channels, and control over the commission of a crime. The procedure is governed by Chapter 21 of the Criminal Procedure Code, and every element of it can be reviewed.

The defense establishes whether the statutory grounds for such actions existed, whether the relevant rulings of the investigating judge and decisions of authorized officials are in place, whether the time limits were observed, and whether the procedural documents that served as the legal basis for the actions were declassified and disclosed to the defense. The completeness and continuity of the recording, and the correspondence between the records and the actual recording, are examined separately.

Under the settled case law of the Supreme Court, failure to disclose to the defense the procedural documents that served as the basis for covert investigative (search) actions calls into question the admissibility of the evidence obtained in that way.

Example. The defense is given the records and data carriers, but the rulings authorizing the covert actions are not declassified. A motion for their disclosure and subsequent objections to the admissibility of the evidence become one of the main lines of defense at trial.

Where is the line with entrapment?

If the initiative came from a law enforcement body or from a person acting under its control, and the person was induced to accept an advantage they would not otherwise have accepted, this is entrapment. Provoking a person to commit a crime is prohibited by Article 271 of the Criminal Procedure Code and by the settled case law of the European Court of Human Rights. Evidence obtained through entrapment may be declared inadmissible.

The defense examines where the initiative came from, how many approaches there were, whether there was persistent persuasion, pressure or the creation of artificial conditions, and whether the case file contains any evidence of similar conduct by the person before the law enforcement body intervened.

Measure of restraint and seizure of property

Together with the notice of suspicion, the prosecution usually files a motion for the seizure of property and for detention or bail in a significant amount. These issues are decided within a short time, in the first days of the proceedings.

The defense prepares objections, proves the absence of the risks provided for in Article 177 of the Criminal Procedure Code, and submits documents on a permanent place of residence and work, family status, health and dependents. As regards the seizure of property, the defense insists on compliance with Article 173 of the Criminal Procedure Code, in particular on the reasonableness and proportionality of the restriction of property rights, and on excluding from seizure any property unrelated to the circumstances of the proceedings.

How a lawyer can help

The work proceeds along several lines at once: verifying whether the person has the characteristics of an official and the actual scope of their powers, assessing whether the amount of the undue advantage is proven, reviewing the covert investigative (search) actions and the authorizing documents, identifying signs of entrapment, and working on the measure of restraint and the seizure of property. His background in pre-trial investigation bodies allows attorney Kobets to assess how the evidence was built and what gaps remain in it.

Defense is provided at all stages of the proceedings, from the first interrogation to the appeal, in Kyiv and other regions.

Related materials: what to do if you provided an undue advantage, and when release from liability is possible, who investigates corruption cases in Ukraine, the line between a controlled purchase and entrapment, measures of restraint: bail, house arrest, detention.

Frequently asked questions

The examples given are hypothetical and generalized and do not relate to any specific case or person.

This material is for information purposes only and is not legal advice or a guarantee of any result. Every case is unique, and the application of legal rules depends on specific circumstances. For an assessment of your situation, seek a personal consultation with a lawyer. The author complies with the Rules of Attorney Ethics and the Law of Ukraine “On the Bar and Practice of Law”.