THE LEGAL PROBLEM OF DETERMINING THE MOMENT OF DISCOVERY OF AN ADMINISTRATIVE offence (on the example of offences related to corruption)

Abstract

The article raises an important issue for administrative-delict proceedings – determining the moment of detection of an offense. It was established that the legislation of Ukraine on administrative offenses does not contain a clear definition of the moment of detection of an administrative offense, which directly affects the calculation of the terms of imposing an administrative penalty. The purpose of the article is to determine the moment of detection of an offense related to corruption for the purpose of forming a uniform law enforcement practice. Statistics show that under this category of administrative offenses, more than 50 percent of cases are closed precisely in connection with the expiration of the terms of imposing administrative fines. It follows from the clarifications of the National Agency for the Prevention of Corruption that the beginning of the calculation of the term for the detection of an administrative offense is the moment when factual data is collected and analyzed and a conclusion is made that the person’s actions constitute an administrative offense. Procedurally, such a conclusion is drawn up in the form of a protocol. The National Police (using the example of units of the Department of Strategic Investigations) is guided by these explanations in its administrative and jurisdictional practice. However, courts of different instances do not have a single view on the moment of detection of an administrative offense, which significantly complicates legal practice. Some courts, when resolving a disputed issue, agree with this definition of the moment of detection of an administrative offense. Others believe that the beginning of the period for the imposition of an administrative penalty should be connected with the day of detection of the offense by the body authorized to draw up the corresponding protocol on the administrative offense. The authors of the article prove that in cases of administrative offenses related to corruption, the moment of detection of the offense should be considered the date of drawing up the protocol, i.e. the moment of finding out all the necessary data, since only after receiving them it is possible to establish all the necessary signs of the composition of the administrative offense.