What is Abuse of Power and Official Position

Sometimes civil servants can break the law and cross the line of what is allowed, in particular, with regard to the powers they possess. Let’s find out what the essence and features of abuse of power and official position are, and how to punish for such actions. 

When holding a high position in the civil service, enterprise, or other institution, a person gains leverage. Very often, it is the authority of the position, the opportunities that it provides, and the generally recognized weight that become the basis for abuse of power or official position.

Abuse of power consists in the use of an official’s authority to resolve issues that contradict the interests of the service. Usually, for such “services,” an official receives a certain reward for themselves or another person/company.

A prime example is the case of ex-MP Oleksandr Presman. He received UAH 928,890 of illegal compensation for using the hotel room of the SE National Hotel Complex, while having his own housing in Kyiv. That is, using his powers, he took a bribe for himself at the expense of funds provided for by Law to compensate for the cost of renting housing to MPs.

Abuse of office means using the powers associated with the position held contrary to the interests of the service. In general, abuse of official position is a broader concept. The fact is that it covers abuse of power, since an official can use powers contrary to the interests of the service, if they are endowed with them.

An example of attempted abuse of official position is the case of Vitalii Kuts, head of the Trebukhivska village council. The HACC found him guilty of granting permits for the development of land management projects in relation to more than 8 hectares of state-owned land that could illegally be transferred to private ownership. For this, he was imprisoned for 3 years and deprived of the right to hold certain positions, and he was also given a fine of UAH 8,500.

Characteristic features of abuse of power and official position are when civil servants:

• deliberately use their competence, official authority, and prestige of the government body in which they work;
• have a self-serving motive, other personal interest, or the interest of third parties;
• harm the rights, freedoms of individuals, or national interests;
• use necessary official connections with other people that arise due to the position held;
• influence professional activities of other people;
• receive financial, property, or other remuneration.

Typical situations of abuse of power or official position are:

• illicit assistance in appointing a person to a position;

• illicit interference in the activities of government bodies, local self-government bodies, or officials;
• illicit provision of benefits to individuals or legal entities during the preparation of drafts, publication of regulatory acts, decision-making, etc.;
• misuse of funds;
• illicit exemption of persons from paying taxes, fees (mandatory payments);
• creation of surplus goods or other material values for subsequent possession of them, and so on.

What is NOT considered abuse of power or official position?

Simple non-performance of official duties, in particular, the situation when an MP skips a meeting of the Verkhovna Rada, is not an abuse of power or official position.

The fact is that for abuse of power or official position, it is important to have at least one of the motives mentioned above. The absence of a motive excludes the qualification of what was committed under Article 364 of the Criminal Code and indicates only the existence of an administrative or disciplinary offense, and in some cases — official negligence.

How are officials punished for abuse of power and official position? 

Both abuses are manifestations of corruption, for which criminal liability is envisaged. According to Article 364 of the Criminal Code, the following basic penalties may be imposed for this crime, such as arrest, restriction, or imprisonment. In addition, the sanction of the article also provides for additional penalties: a ban on holding certain positions, engaging in activities for a certain period of time, or a fine. Their imposition depends on the discretion of the court.

To bring a person to criminal liability under this article, it is necessary to establish a link between their actions and official activities (the scope of functions, powers, opportunities, etc.). Without this connection, there will be no objective side of the crime, that is, the absence of one of the elements of a criminal offense. Therefore, without this element, we cannot suspect a person of abuse of power or official position.

In general, abuse of power and official position is a fairly common corruption crime. According to the monitoring of the HACC work, carried out by lawyers of TI Ukraine, it is this element of criminal proceedings that ranks second in terms of the number of cases pending before the Anti-Corruption Court. “Popularity” of abuse of power and official position as a criminal offense can be explained by the simplicity of the mechanism for implementing criminal intent due to the low level of legal awareness of civil servants and the ineffectiveness of the control and accountability system.