Assignment, embezzlement of property or, for example, taking possession of it using one’s official position is considered a widespread corruption offense in Ukraine. It falls under Article 191 of the Criminal Code of Ukraine, according to which a special entity, for example, an officially employed employee of an enterprise or organization, may be liable. Various parts of this article provide for different severity types of punishment, including one of the most important in the form of imprisonment for up to 12 years. At the same time, problems for a person related to this crime begin already at the pre-trial stage.

 

If you were directly or indirectly involved in an offense committed in Ukraine under the specified article of the Criminal Code of Ukraine (as a witness, suspect, etc.), then it is extremely important to get qualified legal assistance at the very beginning of the criminal case. The course and results of the investigation depend on the actions of the lawyer. This specialist is able to prevent the case from going to court, lighten the burden of the sentence, see the prospects for appealing the court decision, etc.

 

An experienced lawyer under article 191 of the Criminal Code of Ukraine, whose services can be used by contacting the Lawrange Lawyers Association, is familiar with all the nuances of forming a high-quality defense. Criminal proceedings under this article provide for a mandatory combination of high theoretical knowledge and practical experience. With its help, it will be possible to overcome various forensic examinations (accounting, financial and economic activities, financial transactions), interrogations, seizure of documentation, property and other stages of criminal proceedings in a comfortable mode.

 

Since Article 191 of the Criminal Code of Ukraine is considered quite complex and specific, a lawyer will have to spend weeks and even months (depending on the complexity of the situation) just studying the documentation in your case. This will allow an accurate assessment of the data studied and highlight facts from the vast amount of information that will help exonerate the client or lighten the sentence. For this reason, Lawrange recommends that you do not waste your time and contact us for help as soon as you become a defendant in a case under Article 191 of the Criminal Code of Ukraine.

 

What is the meaning of Article 191 of the Criminal Code of Ukraine – Appropriation, waste of property or taking possession of it by abuse of official position

This article focuses on property crimes, which are punishable by the legislation of Ukraine. Three types of embezzlement are described with one common feature – someone else’s property was entrusted to the suspect, or was in his custody or operational management. At the same time, it is important to understand that “appropriation” and “waste” are different concepts.

 

As practice shows, in almost 80% of such cases, a decision is made to refuse to open a criminal case. There are also very real chances of successfully challenging the court verdict. In each specific case, the prosecuting party must find out all the circumstances that confirm the fact of committing a crime. In turn, an experienced criminal lawyer is able to provide evidence of the absence of signs of a crime, which will have a positive effect on the overall outcome of the case.

 

Importantly! In order to be prosecuted under this article, it must be proven that a person used the property entrusted to him without the intention of returning it in the future. The possibility of a lack of property due to its damage or theft by other persons should also be excluded.

 

What is meant by “appropriation”

The main difference between this crime and other similar ones regarding other people’s property is the fact that criminal trespass concerns only the property owned by the culprit who uses his official position to take possession of other people’s property for personal purposes. At the same time, he does not plan to take any actions to return the property in the future.

 

It is important that there is a fact of operational management of the property that is illegally seized. At the same time, such action can be qualified as appropriation only if it is proven that the person used his official powers. At the same time, for example, when an official uses someone else’s property for the needs of an enterprise, organization, or any other business entity (whose employee this person is), Article 191 of the Criminal Code cannot be applied. The lawyer who will conduct your case must monitor the expediency of applying this article.

 

About the concept of “embezzlement”

The specified article of the law of Ukraine does not provide norms for defining the concept of “embezzlement” (as well as “appropriation”). Therefore, the explanation of the Plenum of the Supreme Court is taken into account, according to which embezzlement is considered alienation (for example, by donation, sale, consumption, etc.) of someone else’s property, entrusted or in the possession of the accused for personal benefit or for the benefit of third parties. At the same time, the actions taken are contrary to official interests. As a rule, embezzlement is a logical extension of appropriation.

 

Importantly! Compared to appropriation, embezzlement involves the use of property for its intended purpose, as a result of which it no longer exists (i.e. eaten, spent, etc.) and therefore cannot be returned to the owner.

 

Official position and its abuse

A characteristic type of offense in which an official violates his authority. In addition, the offender uses a complex of organizational and managerial or administrative and economic functions not for the benefit of the enterprise or organization, but in his own interests. These include, for example:

 

  • illegal issuance of an instruction to a subordinate employee to issue property to him (an official);
  • obtaining property under forged, invalid documents (for example, paying oneself illegal bonuses and allowances).

 

If compared with embezzlement, the object of possession in the case of abuse can be even property that is not entrusted to the accused or is not in his possession.

 

A few words about repetition

There are two separate concepts in the Criminal Code of Ukraine:

 

  • repetition – committing two or more crimes falling under Article 191 of the Criminal Code;
  • continuous crime – several illegal acts with a common criminal intent take place.

 

The fact of appropriation is considered complete from the moment when someone else’s property is seized, and the guilty party begins to dispose of it as his own.

 

Who is subject to Article 191 of the Criminal Code

If you are charged with misappropriation and embezzlement, the lawyer will first of all find out whether such charges can be brought against you. According to part 1 of this norm, a person may be considered guilty:

 

  • who officially holds a position and is related to trade, ownership of trade-material assets and their circulation;
  • who signed the contract on bearing material responsibility;
  • which was entrusted with trade and material values, and this fact is confirmed by accounting statements, lease agreements, commission contracts, etc.

 

Based on this, the lawyer, first of all, undertakes to find out whether the mentioned contracts exist. In their absence, the case should be closed.

 

According to Part 2 of Article 191 of the Criminal Code of Ukraine, the subjects of a criminal case are officials (most often managers with administrative, organizational or administrative-economic powers):

 

  • director;
  • heads of departments;
  • chief accountants;
  • personnel who have such competence on a temporary basis, etc.

 

The task of a human rights defender is to find information that confirms the fact of registration for a position or a job description with the specified list of your powers.

 

What you need to know about qualifying features

The concept of qualifying features is used to determine the criminal actions of the accused. They are prescribed by each article of the Criminal Code of Ukraine. Crimes covered by this article have the following qualifying features:

 

  • repeated commission or as a result of a previous conspiracy by a group of persons;
  • large amounts – the amount appropriated (or the property appropriated in the amount) is 250 times or higher than the tax-free minimum income (hereinafter – the TFMI);
  • particularly large sizes – the size of the appropriated amount exceeds the TFMI by 600 or more times.

 

How they are punished under Article 191 of the Criminal Code of Ukraine

In case of embezzlement or misappropriation of someone else’s property, depending on the qualifying features, different measures of punishment are provided:

 

  • fine – up to 50 TFMI;
  • correctional work – up to 2 years;
  • restriction or deprivation of liberty for up to 4 years.

 

Punishment of officials is more severe. In addition to the removal of a special rank (mandatory for up to 3 years), the court can limit the will or even put a person behind bars for 5 years.

 

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If such qualifying features are determined in the case, such as repetition or commission of a crime by a group of persons, restriction of freedom is likely – up to 5 years or a prison term of no more than 8 years. As for embezzlement on a particularly large scale, here they are put behind bars for 12 years and their property is confiscated.

 

Issues of the evidence base

The fact of entrusting property is documented by a contract on full material responsibility. Accounting documentation on the transfer of this property to a person under responsibility can also be included here.

 

Initiate a criminal case under Part 1 of Art. 191 of the Civil Code of Ukraine may refer to managers, accountants, forwarders, cashiers and any other employees of the enterprise who are related to the circulation of commodity values. For Part 2 Art. 191 of the Code of Criminal Procedure, the director of the enterprise, the head of the department, the senior manager, etc.

 

The document confirming the fact that the employee has functional duties is:

 

  • the owner’s decision to appoint a position;
  • employment contract;
  • other contract.

 

Particular attention is paid to documentary confirmation of the presence of stolen property on the organization’s balance sheet. In other words, the fact of primary accounting or being in the accounting account of the fixed and current assets of the enterprise is important.

 

Detection of a crime under Article 191 of the Criminal Code of Ukraine usually occurs as part of an accounting audit. For this:

 

  • They carry out an inventory of available goods and material values.
  • Make a report on the availability of property that is inventoried as part of accounting.
  • They make an excellent report, during which they discover a lack of property or money.
  • They draw up an accounting audit report, which describes everything that has disappeared.

 

Documentary confirmation of the deficiency must be primary accounting documentation, which, it should be noted, is now quite rarely kept by business entities. Based on this, it becomes impossible to apply Article 191 of the Criminal Code of Ukraine when establishing that the stolen property is not in the accounting records and on the balance sheet of the enterprise. Also, quite often the qualification under this article is questioned if the deficiencies are not listed in the accounting accounts of business entities.

 

Importantly! Improper registration of employment documentation and careless attitude to the correct maintenance of primary accounting documentation leads to the fact that in case of shortage (property, money), the negligent employee will not be able to be prosecuted.

 

Searches and precautionary measures

In the course of the embezzlement investigation, a number of circumstances are revealed, including:

 

  • whether the seizure of someone else’s property actually took place;
  • whether there is a shortage or surplus of goods and material values;
  • what form of embezzlement did the criminal use (appropriation, embezzlement or possession of property by abuse of official position);
  • what exactly is the object of the crime, and whether it is registered or unregistered property;
  • who is the embezzler, what position does he hold;
  • dimensions of theft, etc.

 

Depending on the specifics of a specific situation, to establish these and other circumstances of embezzlement, the following are prescribed:

 

  • Inventory to check the safety of goods, identifying shortages.
  • Technical examination of documentation – to accurately determine the method of creating documents, the equipment used, and the age of their creation. It is also used to find out whether corrections have been made to the documents.
  • Construction and technical expertise – helps to determine the non-compliance of the completed work volumes with the volumes specified in the marked acts.
  • Forensic economic examination – to study accounting data (how correct was the reporting, which circle of persons was responsible for compliance with accounting and control norms, what are the errors in the organization of accounting, etc.).

 

An important role in the investigation of cases under Article 191 of the Criminal Code of Ukraine is played by:

 

  • Temporary access to documents – investigators are usually interested in founding and registration documents, as well as primary tax and accounting documents, financial and statistical reports, cash books, check books, etc.
  • Temporary removal of samples of raw materials (or finished products, patterns, stencils) – can often be used as means of committing a crime, in some cases containing evidence.
  • Review of documents by representatives of investigative bodies – documentation is examined for the legality and completeness of transactions, the content of necessary details or detection of signs of forgery.
  • Search – in order to establish an accurate picture of the case, searches may be conducted for documents (including electronic ones), drafts and other items related to the crime. Group searches may be used for offenses committed by a group of persons.
  • Interrogation of witnesses – the first group includes persons who may be involved in embezzlement (accountants, auditors, company managers). The second group includes those who bear direct financial responsibility. The third group of witnesses consists of persons who, on duty, had to face those who embezzled.
  • Interrogation of suspects takes place after studying the company’s regulations and other evidence. At the same time, depending on the situation, various issues may be clarified, starting from the specifics of the accounting organization to the persons who have access to the property.
  • Inspection of the premises – they are mainly interested in warehouse, production, utility or retail areas.

 

Defense strategy

If you are accused of Art. 191 of the Criminal Code of Ukraine, the help of a lawyer consists in solving some important issues:

 

  • First of all, it is determined whether the actions of the accused are properly qualified and whether he can be prosecuted under this article at all.
  • Whether the contract on full financial responsibility has been drawn up in the prescribed manner.
  • Does the suspect hold a position that involves the performance of organizational-administrative or economic-administrative functions.
  • Did the fact of misappropriation and embezzlement of property really occur (in practice, these actions are often confused with abuse of official position).

 

To answer these questions, the lawyer studies all the materials in the criminal case, conducts a detailed analysis of each document. In addition, the following services are provided:

 

  • Control of pre-trial investigation.
  • Preparation of the evidence base, as well as the necessary petitions and statements.
  • Representation and protection of the client’s interests in courts.
  • Appeal against an unsatisfactory verdict.

 

The list of our services depends on the specifics of a specific case.

 

What to do in case of suspicion of misappropriation and embezzlement of property

It is not recommended to make independent attempts to solve the problem. You definitely need a lawyer’s consultation under Article 191 of the Criminal Code of Ukraine, if a summons has already been received or a suspicion has been announced. Before our specialist enters the process, you have every right not to give any evidence to the investigation. And all because, according to the law, everything previously said can be used against you in a future lawsuit.

 

Your algorithm of actions in the case of Article 191 of the Criminal Code of Ukraine is very simple and looks as follows:

 

  • Contact us in a convenient way (order a callback, write to an e-mail or call the number indicated on the website).
  • Describe your situation in detail – talk about the documents that are available.
  • Wait for further instructions that will be given to you during the face-to-face meeting.

 

Importantly! Do not attempt to destroy documentation that you believe may be incriminating. Not understanding all the nuances of the situation, you can cause yourself a lot of trouble in the future.

 

Why you should turn to Lawrange in particular

We deserve your trust because:

 

  • Our team consists of real professionals – lawyers have extensive practical experience in solving similar cases, and also have all the necessary knowledge in the field of criminal law.
  • We work honestly and transparently – we keep abreast of events and any changes in your case, do not impose unnecessary services, practice a loyal, transparent pricing policy (you are insured against the fact that the final price for the provision of services will turn out to be higher than indicated in contracts).
  • We respond quickly to customer appeals, as we understand that in certain situations even the slightest delay threatens serious consequences in the case.
  • We ensure the confidentiality of information about clients – the concept of lawyer’s secrecy makes a lot of sense to us.
  • We develop an individual approach to solving each situation in order to effectively protect the client’s interests.

 

Therefore, if you need the help of a lawyer under Article 191 of the Criminal Code of Ukraine, feel free to contact Lawrange.

 

FAQ

Why should you contact a lawyer under Article 191 of the Criminal Code of Ukraine?

Because this will prevent the case from going to court, ease the severity of the sentence and generally reduce the stress of investigative measures.

 

How do we work?

After studying your problem, we offer optimal solutions. If you are satisfied with the action plan, we conclude the contract, after which the lawyer starts working on obtaining the required result.

 

Who investigates crimes under Article 191 of the Criminal Code of Ukraine?

This is done by the relevant police authorities of Ukraine.

 

 

 

 

 

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