ILLICIT ENRICHMENT – A CRIME WITH INDIRECT DETERMINATION OF THE ELEMENT

Abstract

Indirect determining of the amount of acquired assets as an element of the the crime of illicit enrichment (Art. 368-5 of Criminal Code of Ukraine) is considered in the article. Unlike other corruption criminal offenses, which involve obtaining illegal income, elements of crime of illicit enrichment is designed so that the amount of illegal income is determined indirectly. To do this, an arithmetic calculation must be carried out. It requires determining the amount of the acquired assets, determining the amount of the subject’s legal income for a certain period, taking into account the initial balances and excluding the final balances. If necessary, income and expenses and balances of his or her family members, agents are taken into account, which must be explained by the prosecution. Further, the amount of legal income is subtracted from the sum of the values of the acquired assets and compared with the threshold limit determined by the Art. 368-5 of the Criminal Code. This algorithm is presented in the form of a formula derived in the article. In some cases, there may be a question of illegal acquiring of a specific asset, but when determining the element of crime of illicit enrichment, its value is also compared with sum of legal income (indirectly). Current expenses (for living) incurred in the period for which the calculation is made may also be taken into account. When applying measures to ensure criminal proceedings or granting permission to carry out investigative actions that require the permission of the investigating judge, the investigating judge determines whether there is a reasonable suspicion of the commission of the relevant crime, checks the relevant calculations that must be carried out by the prosecution; if there are objections from the defense at the appropriate stage of criminal procedure, they are also taken into account.