Article 364 of the Criminal Code of Ukraine: Who Can Be Accused

Article 364 of the Criminal Code of Ukraine is a key anti-corruption provision that regulates liability for abuse of power or official position. In the context of combating corruption, it is particularly relevant for civil servants, officials of local self-government bodies, and employees of state and municipal enterprises. Its application in practice raises many questions, especially regarding who can be prosecuted and for what actions criminal liability arises.

Definition of Abuse of Power or Official Position

Abuse of power or official position means intentional actions aimed at obtaining unlawful benefits for oneself or others, committed by an official contrary to the interests of service, if this caused significant harm to the rights, freedoms, and interests of citizens, legal entities, or to state or public interests protected by law.

Subjects of the Crime under Article 364

The subject of the crime is an official — a person who permanently, temporarily, or by special authority performs the functions of a representative of authority or local self-government, or holds positions related to organizational, administrative, or economic functions in state or municipal enterprises, institutions, or organizations.

Officials also include:

• officials of foreign states,
• employees of international organizations,
• members of international parliamentary assemblies,
• judges and officials of international courts.

Liability arises regardless of the official’s rank, title, or field of activity — the main criterion is that their actions meet the elements of the crime.

Objective Side: Actions Covered by the Article

The objective side of the crime is the use of power or official position contrary to the interests of service. This may include:

• unlawful issuance of documents,
• facilitating the resolution of issues in favor of third parties,
• obstructing the exercise of citizens’ legal rights,
• creating privileges for certain individuals or organizations,
• other actions that violate official duties.

A mandatory condition is the occurrence of significant harm or serious consequences.

Subjective Side: Intent and Purpose

To be prosecuted under Article 364, there must be direct intent and the purpose of obtaining unlawful benefits. If the actions were careless or not aimed at obtaining benefits, there is no crime.

Importantly, it does not matter whether the benefit was received by the official or a third party — it is enough to prove that the actions were aimed at this.

Types of Punishment under Article 364

Part 1:

• Arrest up to 6 months,
• Restriction or deprivation of liberty up to 3 years,
• Disqualification from holding certain positions or engaging in certain activities up to 3 years,
• Fine from 250 to 750 non-taxable minimum incomes.

Part 2 (serious consequences):

• Imprisonment from 3 to 6 years,
• Disqualification from holding certain positions or engaging in certain activities up to 3 years,
• Fine from 500 to 1,000 non-taxable minimum incomes.

Practical Aspects and Examples

Most often, suspects under Article 364 are officials of government bodies, local self-government, and heads of state or municipal enterprises. Common examples include:

• unlawful issuance of documents for traveling abroad,
• distribution of state or municipal property in violation of service interests,
• making decisions in favor of certain entities bypassing established procedures.

Such crimes may be investigated by various bodies (NABU, SSU, National Police, SBI) depending on the suspect’s status and the amount of damage caused.

Conclusions and Recommendations for Officials

Article 364 covers a wide range of official crimes, and its application often depends on the specific circumstances. To avoid the risk of criminal liability, officials should:

• strictly adhere to their official duties,
• avoid decisions that may be interpreted as made in personal or third-party interests,
• document all official actions,
• consult lawyers in doubtful situations.

Remember: even the absence of personal gain does not exempt from liability if actions were committed contrary to service interests and caused significant harm.

Author: Criminal Law and Procedure Attorney, WINNER Law Firm-Nataliya Zharyk