The thesis comprises improvements to theoretical foundations of criminology with regard to characteristics and prevention of the offence under Article 365 of the Criminal Code of Ukraine, establishes possible directions for improvement of preventive measures against the excess of authority or official powers by a law enforcement official and practice of their application.
In particular, it has been proved that official misconduct came into existence alongside the emergence of the state and has become a largely widespread phenomenon. In the time of the Kievan Rus' the princely power was nearly unlimited in its nature. Even though common people had the possibility to file official complaints about the actions of the viceroy for the excess of his official powers, these norms did not stipulate specific penalizing measures but rather stated that God is the sole judge for such actions.
We deem it reasonable to narrow down the subject of the offence under the Article 365 of the Criminal Code of Ukraine to a law enforcement official, while the reason for sharp decline in the number of proceedings under this Article since 2014 consists in the changes introduced by the Law of Ukraine ‘On Amendments to Certain Legislative Acts of Ukraine in the sphere of State Anti-Corruption Policy related to execution of the Action Plan for the European Union Liberalization of the Visa Regime for Ukraine’ as of 13.05.2014 to the Note to the Article 364 of the Criminal Code of Ukraine concerning the identification of the notions of significant damage in the Articles 364, 364-1, 365, 365-2, 367 of the Criminal Code of Ukraine and grave consequences in the Articles 364-367 of the Criminal Code of Ukraine, which narrowed these notions down solely to infliction of material damage.
Causes and conditions of this offence encompass factors common to all criminal activities (political, economic, social and psychological, ideological factors, legal impediments, etc.) and factors specific to offences committed in the sphere of public office activities, in particular law enforcement activities. Specific factors can be separated into objective (absence of clear delineation of functions of law enforcement and other government authorities, legislation gaps, etc.) and subjective (professional deformation, low moral qualities of individual law enforcement officials, etc.).
For the identity of the offender – law enforcement official, who commits excess of authority or official powers, a major distinctive feature is his affiliation with a particular law enforcement authority. Files of studied 50 criminal cases and proceedings affirm that in 86% of the instances of excess of authority or official powers such offences were committed by the employees of former Militsiya or the current National Police.
An important instrument for prevention of excess of authority or official power by a law enforcement official is an efficient staff selection system for these authorities. Presently, recruitment of highly qualified personnel to law enforcement agencies remains one of the most acute problems. Absence of reliable social and legal guarantees for employees, inadequate financial incentives for their work do not conduce to the creation of objective conditions for competitive selection of candidates for the majority of law enforcement agencies.
Special criminological prevention of excess of authority or official powers by a law enforcement official is possible with adequate legislation and its efficient application by supervisory authorities. In the present context of reforming the system of law enforcement authorities, high relevance is attributed to the issue of creating an adequate supervisory system to control the activities of prosecutor's office employees which would ensure the realization of this authority’s functions and objectives as provided for in the legislation.
Individual prevention of excess of authority or official powers by a law enforcement official is a type of activity conducted internally by services and units of law enforcement agencies aimed at preventing the offence on the part of a particular individual who would be expected to commit such an offence with a high probability.
Presently in Ukraine there exists a substantial need for development and implementation of a uniform regulatory legal act on measures of crime prevention into practical activity of law enforcement authorities.
