Article 365 of the Criminal Code of Ukraine Who Can Be Accused

In the context of reforming Ukraine’s law enforcement system, the issue of liability for abuse of power or authority has become increasingly relevant. Article 365 of the Criminal Code of Ukraine (CCU) is one of the key provisions establishing criminal liability for law enforcement officers who exceed their powers. However, many questions arise in society and among professionals regarding who can be charged under this article, what actions fall under it, and what consequences may follow.

Content of Article 365 CCU

The article provides criminal liability for a law enforcement officer who intentionally commits actions that clearly exceed their powers, causing significant harm to the rights of individuals, the state, society, or legal entities.

Three parts of the article:

• Part 1 — actions causing significant harm: up to 5 years of restraint or 2–5 years of imprisonment with a ban on holding certain positions (up to 3 years).
• Part 2 — actions involving violence, threats, weapons, or special means: 3–8 years of imprisonment with disqualification.
• Part 3 — actions causing grave consequences: 7–10 years of imprisonment.

Who can be charged?

The subject of the crime is special — a law enforcement officer, who:

• permanently or temporarily holds a position in a law enforcement agency;
• performs organizational or authoritative duties;
• represents state authority (even temporarily or by delegation).

Includes police, SBU, prosecutors, customs, border guards, etc.

Distinction from other offenses:

• Art. 364 — abuse of authority (acting within powers but contrary to service interests);
• Art. 365 — exceeding authority (acting outside the limits of power).

Objective elements:

1. Clearly exceeding authority;
2. Intentional action;
3. Significant harm (material damage, rights violations, reputational harm, etc.).

Subjective element:          
Direct intent — the person understands the unlawfulness and foresees the consequences.

Judicial practice:  
Typical cases include:

• Unlawful use of force or weapons;
• Illegal arrests or searches;
• Decisions causing pain, humiliation, or substantial harm.

Challenges and trends:

• Ambiguity in defining the subject;
• Need to distinguish from other crimes (torture, Art. 127; unlawful imprisonment, Art. 146, etc.);
• Increasing enforcement in serious cases;
• Difficulty proving intent and substantial harm.

Conclusion:
Article 365 is an important tool for protecting citizens from law enforcement abuse, but effective application requires clear interpretation of subjects and elements of the crime, guided by judicial practice.

Author: Nataliia Zharyuk, criminal law and procedure lawyer at WINNER
⬇️ Below: courtroom video of WINNER’s legal team defending a client at the High Anti-Corruption Court (HACC).