Practice of the Supreme Court in Corruption Criminal Offenses

Author: Oleksandr Teleshetskyi, Attorney, Partner at Grain Law Firm

Combating corruption is an important function of any modern state, as well as a task for civil society as a whole.

This is particularly relevant for Ukraine at its current stage of state development, in light of its European integration aspirations and participation in international security and political organizations, especially during the ongoing war with Russian aggression for independence and state sovereignty.

It is essential that the fight against this social evil remains constructive and does not turn into a mere imitation of socially useful activity driven by the pursuit of quantitative performance indicators of law enforcement agencies at any cost.

Judicial practice plays a key role in a systemic approach to effectively combating corruption-related crime. Although Ukraine traditionally follows a Romano-Germanic legal system, the legal positions of the Supreme Court are undoubtedly, while not formally binding in all cases, an authoritative and necessary source of law intended to fill gaps and eliminate ambiguities and conflicts in legislation.

It is unquestionable that consideration of Supreme Court practice is necessary for the national legal system as a whole. However, it is important that the Criminal Cassation Court does not itself generate divergent interpretations of the same legal norms, does not engage in law-making, and does not assume the role of the legislative branch, but rather ensures coherence and uniformity in judicial practice, promoting consistent application of the law.

Below are several Supreme Court decisions concerning offenses under Article 364 of the Criminal Code of Ukraine.

A notable ruling is the decision of 11 June 2024 in case No. 359/2636/19, in which the cassation court agreed with the lower courts’ conclusion that the elements of the criminal offense under Part 2 of Article 364 of the Criminal Code were not proven.

Case summary: a customs inspector performed an incomplete review of documents submitted for customs clearance, resulting in a legal entity allegedly avoiding payment of export duty in the amount of 254,012.04 UAH. The pre-trial investigation body classified this under Part 2 of Article 364 as abuse of office with intent to obtain unlawful benefit for a legal entity, causing serious consequences.

However, the Supreme Court stated:

“Abuse of authority or official position is recognized as a crime only when all of the following three elements are present:

1. use of official authority or position contrary to the interests of service;
2. commission of such act for selfish motives or other personal interest or in the interests of third parties;
3. causing substantial harm to legally protected rights and interests.”

The subjective side of the offense requires direct intent and a purpose of obtaining unlawful benefit, along with a selfish motive.

Failure to prove these elements, even if errors or procedural violations occurred, excludes qualification under Article 364 of the Criminal Code.

A similar conclusion was reached in the ruling of 23 April 2024 in case No. 278/1664/20, where the court emphasized that the prosecution must prove not only incorrect customs clearance actions but also the official’s personal interest in enabling unlawful benefit to a third party.

Another relevant decision is the ruling of the Supreme Court (Criminal Cassation Court) of 10 February 2025 in case No. 757/11969/18-к.

In this case, the court clarified that abuse of office resulting in unlawful benefit to third parties requires:

– intentional use of authority contrary to service interests;
– awareness of unlawful benefit being obtained by a third party;
– and a new approach: liability under Article 364 may arise even without prior agreement between the official and the beneficiary.

Unlawful benefit may be either expected or unexpected for the third party.

The ruling also referred to Article 19 of the UN Convention against Corruption, noting that abuse of office focuses on the conduct and intent of the official without necessarily requiring interaction between multiple persons.

Regarding bribery cases (Article 368 of the Criminal Code), the ruling of 23 April 2024 in case No. 726/776/17 is noteworthy.

The court held that a person may be convicted even when acting as part of a collegial body, if they exercised influence over its decision-making process.

At the same time, the court clarified that “extortion of unlawful benefit” requires proof of coercion, threat, or creation of conditions forcing a person to provide such benefit.

Similar conclusions are found in the ruling of 15 October 2024 in case No. 404/8115/20, which emphasized that mere initiative to provide unlawful benefit does not constitute extortion.

In practice, courts consistently distinguish between voluntary bribery and coercive demand, which must be supported by evidence of pressure or threats.

I would also note practical experience where, during judicial review, a defense argument regarding absence of extortion led to cancellation of suspicion at the stage of compliance with Article 290 of the CPC of Ukraine.

Another important ruling is the decision of 27 August 2024 in case No. 303/3590/20, where the court clarified that “use of official position” is not limited to actions strictly within formal authority but also includes use of opportunities arising from the position held.

Regarding High Anti-Corruption Court (HACC) cases, the Supreme Court continues to refine its approach to subjective elements of bribery offenses.

The ruling of 10 December 2024 in case No. 757/38626/17-к confirmed conviction and clarified that liability for bribery arises when the giver is aware that the official has the capacity to achieve the unlawful result.

The ruling of 8 July 2024 in case No. 761/32259/16-к resulted in the reversal of conviction and closure of proceedings, emphasizing the importance of defining “interests of service” under Article 364.

The European Court of Human Rights has repeatedly emphasized that criminal liability based on blanket norms requires foreseeability of prohibited conduct.

The Supreme Court also addressed use of results of covert investigative actions (NEDs) in case No. 991/10566/20 (02 November 2023), confirming that evidence obtained in one proceeding may be lawfully used in another under conditions defined by Article 257 of the CPC of Ukraine.

Finally, it is worth noting that the predictability of Supreme Court practice remains debatable. Certain interpretations, particularly regarding urgent searches without judicial authorization, may be perceived as judicial law-making rather than interpretation, raising concerns about legal certainty.

This raises broader questions about the boundaries between judicial interpretation and legislative function, especially in sensitive areas such as criminal liability for corruption offenses.