On
June 4, 2014 the Law of Ukraine "On amendments to some legislative acts of
Ukraine in the field of state anticorruption policy due to the implementation
of the EU Visa Regime Liberalization Action Plan for Ukraine" No.1261-VII
(hereinafter the Law) came into effect.
The
Law expands the grounds for applying measures
under criminal law to legal entities.
Thus, according
to the previous wording of Article 96-3 of the Criminal Code of Ukraine grounds
for the application of such measures could be a number of offenses committed "on behalf of a legal entity", if such offenses were "aimed at obtaining" "undue advantage or create the
conditions for obtaining such advantage" for that legal entity, which indicated
the need to establish a direct intent to achieve a criminal result. The new wording of this provision establishes
that the mentioned offenses shall also be deemed committed in favour of a legal
entity, if they "resulted in
obtaining undue advantage"
by a legal entity or created conditions for obtaining such advantage", i.e. regardless of the focused
intent of that legal entity’s authorized person.
Also, the adopted Law sets
forth an additional ground for applying measures under criminal law to legal
entities. Now such measures can be applied not only for authorized person s’
offenses committed on behalf of and in the interests of a legal entity, but
also for "failing to ensure the performance of duties to prevent
corruption imposed on the authorized person by law or constituent documents of
a legal entity", if it led to any offense provided for in Articles
209, 306 or to offenses provided for by separate parts of Articles 368-3,
368-4, 369 and 369-2 of the Criminal Code of Ukraine and related to the undue
advantage obtained.
It should be noted that the
adopted Law fails to disclose the content of "duties to prevent corruption." At the same time, the new Article 14-1 added to the
existing Law of Ukraine "On
Principles of Prevention and Combating Corruption " obliges legal entities
to ensure the "development
and application of measures to prevent corruption, which are necessary and
reasonable for preventing corruption in the activities of a legal entity and
for encouraging employees to act in accordance with the laws and regulations
and under rules and procedures established by the company to identify and
prevent corruption in its activities."
Also, the Law has changed
the amount of fine as a measure under criminal law, which may be
applied to a legal entity: earlier, the court could impose a fine in the amount
of UAH 85 thousand to 1,275 thousand, now the mentioned amount may only be
applied, if undue advantage was not obtained or if its amount may not be
estimated. In all other cases a fine in the double amount of obtained undue
advantage shall be applied.