Bribery without money transfer may lose the status of a more serious crime — what's wrong with the changes to the Criminal Code

The Verkhovna Rada is considering bill No. 15221, which proposes changes to the approaches to qualifying bribery of officials under Article 369 of the Criminal Code of Ukraine.

As reported by the "Judicial and Legal Newspaper," the bill provides for adjustments to parts three and four of Article 369 of the Criminal Code of Ukraine and clarifies the grounds for enhanced criminal liability for giving an unlawful benefit to officials.

In particular, it is proposed that giving an unlawful benefit to an official holding a responsible position, as well as committing acts provided for in parts one or two of this article, if committed by a group of persons by prior conspiracy, shall be punishable by imprisonment for a term of four to eight years with or without confiscation of property.

It is also proposed to establish that giving an unlawful benefit to an official holding a particularly responsible position, as well as acts provided for in parts one, two, or three of this article, if committed by an organized group or its member, shall be punishable by imprisonment for a term of five to ten years with or without confiscation of property.

The authors of the bill explain that Article 369 of the Criminal Code of Ukraine establishes liability for offering, promising, or giving a bribe to an official and is aimed at protecting the normal functioning of state bodies. They believe that parts 3 and 4 of this article should only apply to cases where the bribe was actually transferred to an official with a special status.

The authors note that the current wording requires technical clarification, as in practice there are difficulties in distinguishing between forms of bribery and promise of bribery as grounds for enhanced liability.

Therefore, it is proposed to clarify the provision so that it is understood and applied uniformly.

The authors emphasize that this is only a technical clarification that does not change the liability for crimes themselves and does not introduce new punishments.

The essence of the problem

The bill proposes to change the approach to qualifying acts provided for in Article 369 of the Criminal Code of Ukraine, particularly in parts three and four, which establish liability for bribery of officials holding responsible or particularly responsible positions.

The Verkhovna Rada noted that the bill proposes such a change whereby stricter punishment will only apply to cases where the bribe has already been transferred. Because of this, the offer or promise of an unlawful benefit may no longer be considered grounds for enhanced punishment.

Currently, the existing wording of Article 369 of the Criminal Code of Ukraine provides a broader model of criminalization, according to which the objective side of the crime covers three forms: offering an unlawful benefit, promising to provide it, and directly giving it. The crime is considered completed at the moment of committing any of these acts regardless of the actual receipt or acceptance of the benefit by the official.

Judicial practice holds that for qualification under parts three or four of Article 369, the key is not only the fact of transferring funds but primarily the intent directed at bribing a specific official holding a responsible or particularly responsible position. The crime is recognized as completed from the moment of expressing the offer or promise of an unlawful benefit if addressed to such an official, regardless of subsequent developments.

In this context, the proposed changes create a risk of narrowing criminal norms in the field of anti-corruption, as they may effectively exclude from qualified offenses acts that constitute early stages of bribery — the offer and promise of an unlawful benefit, which under the current model are considered independently punishable forms of a completed crime.

Despite the reservations, the very idea of clarifying qualifying features of corruption crimes is relevant. At the same time, its implementation in the current form requires significant revision to avoid narrowing the scope of criminal liability for bribery of officials and not to violate established judicial practice.

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