The Supreme Court determined how to qualify the actions of People's Deputies who unlawfully benefited from guarantees directly related to the exercise of their public authority functions

Abuse of power is the unlawful use of powers, authority and opportunities derived from rights, duties, guarantees, as well as benefits and other privileges directly related to the exercise of the public official's functions.

This conclusion was reached by the Joint Chamber of the Criminal Cassation Court of the Supreme Court. As the courts found, for more than 1.5 years, a People's Deputy of Ukraine, who owned an apartment in Kyiv, was provided with hotel accommodation at the expense of budgetary funds allocated for the activities of the Verkhovna Rada of Ukraine. These actions had serious consequences in the form of irrecoverable loss of budget funds in the amount of almost 361 thousand UAH.

The Joint Chamber of the Criminal Cassation Court of the Supreme Court stated the following.

The state guarantees deputies the necessary conditions for exercising their parliamentary powers (part 4 of Article 1 of the Law of Ukraine "On the Status of the People's Deputy of Ukraine").

The right to reimbursement of the cost of renting or hiring a hotel room is vested exclusively in a People's Deputy of Ukraine, i.e. this right is a component of the legal status of a People's Deputy and a guarantee of parliamentary activity, which ensures unimpeded and effective participation of a People's Deputy in the performance of his/her functions.

The provisions of part 2, part 3 of Article 8 of the Law of Ukraine "On the Status of the People's Deputy of Ukraine" stipulate that it is unacceptable for a People's Deputy to use his/her parliamentary mandate contrary to generally accepted norms of morality, human and civil rights and freedoms, and the legitimate interests of society and the state. A People's Deputy must not use his/her parliamentary mandate for personal, including selfish, purposes.

As long as the conditions for obtaining a housing guarantee by people's deputies are clearly defined, and if they are met, the deputy submits a request to exercise the housing guarantee, then of course the information about the absence of housing needs should also be reported to the relevant department of the Verkhovna Rada.

Otherwise, the reimbursement of the cost of rent or lease of a hotel room in Kyiv to a People's Deputy of Ukraine will no longer fulfil its task of ensuring the performance of functions by the People's Deputy.

If the legislation defines an active procedure for obtaining certain guarantees, benefits, etc., by providing information on the availability of other housing, marital status, etc., which is decisive for the decision to obtain the relevant benefits, then this clearly corresponds to the obligation to inform the authorised bodies when the grounds for obtaining such benefits cease to exist.

The Joint Chamber of the Criminal Cassation Court believes that the unjustified acquisition by the government representative of the property right for hotel accommodation was directly related to the acquisition of the powers of the government representative and the exercise of his authority, with the exercise of the rights resulting from them.

In the present criminal proceedings, the right for hotel accommodation and the reimbursement of the relevant expenses are linked to the exercise of the official's functions, since they are intended to ensure normal conditions for the exercise of his powers.

Referring to this case, the Joint Chamber of the Criminal Cassation Court of the Supreme Court took into account the mechanism of using the housing guarantee, under which the People's Deputy did not personally receive funds for hotel accommodation, as they were immediately transferred to the hotel account.

Therefore, in the light of the foregoing, the content of the abuse of power is the unjustified use by a representative of the authorities of the guarantee provided by the State for the exercise of their powers, the unjustified use of property directly related to the exercise of power. 

The criminal legal assessment of the unjustified receipt by a People's Deputy of such property benefit as hotel accommodation constitutes an abuse of power, and such an act should be qualified under the relevant part of Article 364 of the Criminal Code of Ukraine.

The Resolution of the Joint Chamber of the Criminal Cassation Court in case No. 991/3966/20 (proceedings No. 51-3348кмо22) is available at https://reyestr.court.gov.ua/Review/115409272.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.