Article 369 of the Criminal Code of Ukraine: case law and application practice

Article 369 of the Criminal Code of Ukraine is one of the key provisions of anti-corruption legislation that establishes criminal liability for offering, promising, or giving an undue advantage to an official. Its practical application is constantly in the focus of lawyers, judges, anti-corruption bodies, and society, since it deals not only with bribery as a socially dangerous phenomenon but also with its distinction from administrative offenses, related crimes, and civil legal relations.

Essence and Legal Construction of Article 369 of the Criminal Code of Ukraine
The article consists of four parts, each covering different forms of criminal conduct:

• offering, promising, or actually giving an undue advantage to an official for actions or inaction using their official position;
• repeat offenses (part 2);
• group commission or offer to a particularly responsible person (part 3);
• organized group or exclusively responsible person (part 4).

Importantly: the crime is considered completed from the moment of any such act—even if the official refuses or does not receive the benefit. An offer, even if oral or through an intermediary, already constitutes the corpus delicti.

Objective Elements: Substance, Means, and Subject of Undue Advantage
The objective side includes:

• initiative to grant the benefit (oral, written, via other persons)
• attempt, promise, or direct transfer of material or non-material values
• offer of services, advantages, benefits, influence on decision-making

The subject of undue advantage may include:

• money;
• gifts and property;
• services or privileges;
• any non-material advantages with monetary value.

The amount does not affect the qualification under part 1, but for parts 2–4, the degree of punishment increases significantly.

Subject and Subjective Aspect of the Offense
The subject is any mentally competent individual who has reached the age of 16, regardless of citizenship. A legal entity cannot be a subject under this article, but its representatives are subject to individual liability.

The subjective element: the main feature is direct intent, confirmed in court when considering circumstances—the offense may be motivated by various reasons (gain, fear, desire to avoid liability), but the key point is that the person realizes the societal danger and aims for the corresponding result.

Qualifying Features and Differentiation from Related Offenses
Recidivism, group conspiracy, special status of the official, and organized commission are aggravating factors:

• repeat offenses—entail stricter terms of punishment and additional fines;
• prior group conspiracy—entails harsher sanctions (up to 8–10 years’ imprisonment with confiscation);
• giving an undue advantage to heads of authorities, judges, top officials—combined with enhanced penalties.

In addition, Article 369 should be distinguished from:

• abuse of influence (Art. 369-2 of the CCU);
• receiving an undue advantage by an official (Art. 368 of the CCU);
  Judicial practice (Supreme Court) emphasizes: it is crucial to establish the genuine nature of the advantage and legally significant connection with the official’s powers.

Examples from Real Case Law: Key Points
In recent years, sentences under Article 369 of the Criminal Code of Ukraine show these trends:

• most criminal cases are initiated based on the actual transfer of money for “solving issues” in courts, police, or government bodies;
• making an offer to an official (even if refused) is already grounds for prosecution;
• courts take into account sincere repentance, the amount of the benefit, the role of intermediaries, and the factual influence of the benefit on the official’s decision when issuing a sentence;
• special attention is paid to claims that the act was a “joke,” misunderstanding, or lack of evidence that the benefit was transferred—these are evaluated individually;
• indirect evidence is often used: recordings of conversations, electronic correspondence, covert surveillance.

Understanding the Concept of ‘Undue Advantage’: Deep Approach
Practice shows that undue advantage is recognized not only as money or gifts but also “services for relatives,” bonuses or property preferences such as discounts, assistance, loyalty, even payment for vacations or education. Each case involves an individualized analysis of evidence and context.

Differences in Judicial Practice across Regions and Authorities
Cases under Article 369 often lead to different outcomes depending on the evidence base, activity of anti-corruption bodies, mediation between parties, and also the features of local business culture or even regional influences. Courts consider:

• specifics of official relations;
• availability of audio/video evidence;
• people’s impact on decision-making;
• the role of intermediaries and third parties.

Punishment: Sentencing Trends
Depending on the article part, the penalties include:

• fines from 1,000 to 4,000 non-taxable minimum incomes;
• imprisonment from 2 to 10 years;
• confiscation of property for severe cases (organized group, especially responsible person).

Courts critically evaluate:

• whether there was repentance and assistance to the investigation;
• whether the benefit was given or only proposed;
• whether there was influence on the state body.

Typical Mistakes by the Defense and Prosecution
Investigators and attorneys sometimes err by:

• not recording the “moment the crime is completed” (it can occur before the actual receipt of the benefit);
• not collecting complete evidence (video, audio, letters, statements);
• ignoring the person’s official status or the motive for the transfer.

Anti-Corruption Role and Prospective Changes
Article 369 of the CCU is one of the most effective real anti-corruption control tools. Trends towards stricter approaches, recording cases even in “minor” situations, the obligation to prove the reality of the benefit, and involving the public are changing judges’ attitudes. The work of the NABU, High Anti-Corruption Court, and local prosecutors sets a new standard for fighting corruption—considering European models and ECHR practice.

Conclusions
Article 369 of the Criminal Code covers a wide range of corrupt behavior and is fundamentally important for developing Ukraine’s legal culture. The accuracy of case qualification, evidence review, and depth of evaluating intent and societal danger are key to successful case resolution and addressing gaps in anti-corruption policy. For lawyers, judges, and investigators, it is vital to consider Supreme Court interpretations and international trends, and for citizens—to comply with the law and avoid risky contacts with officials.

Author: Yevhen Murchenko – Head of criminal law and procedure practice at WINNER Law Firm.
If you have questions or problems applying anti-corruption law, consulting on offense qualification, preparing legal positions, or defense in court—contact WINNER Law Firm experts. Competent support will help minimize risks, set up defense, and find effective legal solutions during investigations and court proceedings.