MPs and Abuse of Housing Guarantees: Decision of the Supreme Court

Authors: Pavlo Demchuk, Legal Advisor at Transparency International Ukraine, jointly with trainee Yehor Zavialov.

Recently, the HACC approved an agreement with ex-MP Dmytro Koliesnikov, accused of abuse of authority. When discussing such a decision, the defender of the ex-MP hinted that, until recently, they did not know whether Koliesnikov’s act was considered a crime. We can assume that it was the recent decision of the Joint Chamber of the Supreme Court that clarified the issue.

Indeed, at the end of November, the Supreme Court tried to solve the problem of criminal legal assessment of the actions of MPs who had illegally received compensation for renting housing. In particular, in the case of ex-MP Ruslan Solvar, the judges overturned the conviction of the Appeals Chamber of the High Anti-Corruption Court and referred the case for a new trial.  

Solvar was acquitted by the first instance in June 2021, and the appellate court convicted him in September 2022. 

The court found the ex-MP guilty of obtaining compensation for renting a room in the Kyiv hotel; allegedly, he did not have his own housing in Kyiv even though he did. Such compensation is part of state guarantees for MPs who do not have housing in the capital.   

Unfortunately, the HACC does not have a consistent practice for this category of cases, so there were different verdicts, both acquittal and conviction. In a separate article, we examined what considerations judges had in such decisions, and established a list of issues that, in our opinion, were resolved ambiguously. 

• Is an MP an official within the meaning of the note to Art. 364 of the Criminal Code of Ukraine (CC of Ukraine)?
• Do MPs use their authority when submitting applications for compensation for the costs of renting hotel rooms?
• What is the quality of the legislation regulating this sphere of relations, and is the prosecution of MPs for such violations provided for?
• If an MP did not report on the availability of housing in Kyiv, is it fraud or deception — a way of abuse of office?
• If the actions of ordinary citizens to unlawfully receive social benefits are recognized as fraud, are MPs in a privileged position since Art. 364, part 2 of the Criminal Code of Ukraine is milder than Art. 190, part 4 of the Criminal Code of Ukraine?

The judges of the Supreme Court tried to answer these and other problematic questions in their resolution. 

What do MPs abuse: authority or office?

In the cassation procedure, the conviction of the HACC AC was reviewed by the Joint Chamber of the Criminal Court of Cassation since it was necessary to clarify the difference between abuse of authority and abuse of office. 

The HACC AC found Solvar guilty of abuse of office, although the prosecution charged him with abuse of authority. A similar position that the ex-MP should be found guilty of abuse of office, and not authority, was expressed by Judge Viktor Nohachevskyi in his separate opinion concerning the acquittal of the first instance. 

The judges of the Supreme Court came to the conclusion that the main thing for distinguishing between the concepts of “abuse of authority” and “abuse of office” is the nature of powers, rights, duties, and opportunities to implement the relevant functions that the person abuses.  

Representatives of the authorities differ from other categories of public law officials in that they have the right to create decisions (laws, orders, etc.) binding on all other persons, as well as to exercise other powers. In fact, we are talking about representatives elected by Ukrainians to the relevant bodies. That is, if an official abuses the rights that were granted to them as a representative of the authorities, it is quite logical that we can talk about abuse of authority.   

Therefore, the Supreme Court took a broad approach to interpreting the concept of abuse of authority, defining it as an unlawful use of powers, authorities, and opportunities derived from rights, obligations, guarantees, as well as perks and other benefits that are directly related to the exercise of the functions of a representative of the authorities. Such an approach may prompt law enforcement officers to intensify their activities regarding the qualification of more actions under Article 364 of the Criminal Code of Ukraine related to the abuse of guarantees provided to special entities. 

For example, the acquisition of official housing in private ownership or the unlawful use of official cars, provided that damage is of the relevant size, can qualify as an abuse of authority. In addition, this decision of the Supreme Court does not solve the injustice when the actions of ordinary citizens, which consist in the illegal receipt of subsidies or benefits, are punishable under Art. 190 of the Criminal Code of Ukraine, which is more severe than Art. 364 of the Criminal Code of Ukraine.  

However, in principle, this is not the task of the court, but the paradigm of the legislator’s work, which not only occasionally solves the problems of the quality of the criminal law, but also deepens them with inconsistent changes.

Other answers to the controversial questions provided by the Supreme Court regarding this category of cases

Problem 1. Is an MP an official within the meaning of the note to Art. 364 of the Criminal Code of Ukraine?

The Supreme Court noted that the entity committing a criminal offense under Article 364, part 1 of the Criminal Code is an official, who may be either a representative of the authorities or another official. 

An MP is a representative of the authorities since they exercise the powers of a representative of the legislative branch of power and, accordingly, are a special entity committing a crime under Art. 364 of the Criminal Code, in the form of abuse of authority. Therefore, an MP is an official within the meaning of the note to Article 364 of the Criminal Code of Ukraine.

Problem 2. Does an MP use their powers when applying for compensation for rental housing in Kyiv?  

Reimbursement to an MP of Ukraine of the cost of renting a hotel room in Kyiv is a part of the guarantees of the activity of a Member of Parliament of Ukraine, the list of which is provided in Section IV of the Law of Ukraine on the Status of an MP of Ukraine.  

Guarantees of the activity of an MP are not independent but come from the powers of an MP. Without them, it would be impossible to exercise such powers. For example, without living in Kyiv, it is impossible to work effectively in the Verkhovna Rada as a member of the Parliament.   

Therefore, the court concludes that an MP, unlawfully submitting an application for reimbursement of the cost of rent, uses guarantees on which the exercise of powers is based, and therefore this is a form of abuse of authority.

Problem 3. How high is the quality of the legislation that regulates this area of relations? 

The highest number of questions about the quality of legislation were raised in the case of ex-MP Andrii Levus. At that time, the court noted the lack of clear provisions of legislation and judicial practice that would regulate this issue. This was especially true of the concept of not provided with housing in Kyiv in the legislation. 

By its resolution, the Supreme Court answered this question, citing Art. 35, part 2 on the Status of an MP of Ukraine.  Thus, under the category of not provided with housing in Kyiv, the court understands that an MP does not own housing, and the place of their registration of residence is located at a distance of more than 30 km from Kyiv.  

Another problematic issue in the legislation was that there was no obligation on the part of the MP to inform the Verkhovna Rada Apparatus about the acquisition of housing in the capital. To this, the Supreme Court noted that when the legislation clearly defines the procedure for acquiring such a housing guarantee, it obviously corresponds to the obligation to notify the authorized entities in case of acquiring ownership of housing in Kyiv.

Problem 4: Can the court change the classification of the actions of ex-MPs?  

Solvar was convicted of abuse of office by the verdict of the Appeals Chamber of the High Anti-Corruption Court. In the indictment, the prosecutor asked to find the ex-MP guilty of abuse of authority. The Court of Appeal changed the wording of the charge. However, did it have the right to do so? 

The Supreme Court noted in the resolution as follows: the court of appeal has the right to give a different legal assessment to the factual circumstances established during the criminal proceedings. However, such a change in the legal assessment cannot worsen the legal situation of the accused. In its decision, the court indicated that the charges brought against the person for these acts should be specific and contain a clear statement of the objective side of the elements of the incriminated criminal offense. 

Therefore, the judges of the Supreme Court found a significant violation of the requirements of the criminal procedural law and the improper application of the law of Ukraine on criminal liability, in connection with which the appealed verdict was overturned, and a new hearing was scheduled in the court of appeal.  

However, a certain part of the problematic issues remains unresolved, namely, the privileged position of MPs compared to ordinary citizens, the need to control the filing of applications for compensation by MPs, etc. Such uncertainty must be resolved.

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As of January 2024, 1 case on unlawful compensation to MPs for renting housing in Kyiv is heard in the court of first instance (HACC), and 3 such cases are heard in the court of appeal (HACC AC).  

The decision of the Supreme Court should have a quality impact on the consistency of the HACC practice and will also contribute to the correct interpretation of the provisions of the criminal law. In addition, after such a “landmark” decision of the Supreme Court, the consideration of other cases may accelerate, and the legal argumentation will be of a higher quality. This has already been demonstrated by the recent agreement between ex-MP Koliesnikov and the prosecutor, and such cases may become even more frequent in the future. 

It seems that the court of appeal will have to consider the position of the Supreme Court when reviewing the case of Ruslan Solvar and convict him of abuse of authority. The statute of limitations should be sufficient in his case because the incriminated event of the crime took place between March 1, 2017, and October 31, 2018. Article 364, part 2 of the Criminal Code of Ukraine gives the state 10 years to prosecute.