What Is Abuse of Power or Official Position: Legal Definition
In criminal law, actions such as abuse of power or official position are explained by intent, and the aim is to obtain any benefit that is unlawful, either for oneself or for others. Abuse also includes the use of one’s official position against the interests of service, provided that it causes significant harm to the interests, rights, and freedoms of individuals or to state or public interests.
According to a note in the Criminal Code, an official within the meaning of this article is a person who permanently, temporarily, or under a special mandate performs the functions of a representative of authority. This category also includes persons who permanently or temporarily hold positions involving organizational-administrative or administrative-economic functions in government bodies, local self-government, or state or municipal enterprises.
What Is the Liability for Abuse of Power?
Article 364 of the Criminal Code of Ukraine establishes penalties for abuse of power or official position. The sanctions include probationary supervision, possible restriction or deprivation of liberty for up to three years, disqualification from holding certain positions or engaging in specific activities for up to three years, and a fine ranging from 250 to 750 tax-free minimum incomes (from UAH 4,250 to UAH 12,750).
If the offense results in grave consequences, the offender may face imprisonment for a term of three to six years, disqualification from certain positions or activities for up to three years, and a fine ranging from 500 to 1,000 tax-free minimum incomes (UAH 8,500 to UAH 17,000).
Practical Examples: How Abuse of Power Is Qualified in Ukraine
Based on Supreme Court practice, the subjective element of abuse of office is direct intent. Purpose and personal gain are essential features of the subjective side of the offense. This includes the desire to use one’s position to obtain material benefits for oneself or others, acquire property rights, avoid costs, or obtain any other material advantage.
For example, the Supreme Court rulings dated 02.11.25 No. 724/1590/19 and 16.11.25 No. 755/12530/18 describe the subjective aspect of the offense under Article 364 in detail. It is characterized by intent. The mandatory goal is to obtain any unlawful benefit for oneself or others. Motive and purpose are subjectively and psychologically interconnected. In criminal offenses, motive is explained as a conscious and volitional incentive to achieve the goal.
Furthermore, in the Supreme Court conclusion dated 02.02.22 in case No. 520/15641/15-k, it is noted that the presence or absence of prior agreement between the official and the beneficiary does not hinder qualification under Article 364. Even if the official acts in the interests of a third party without that party’s knowledge, this does not prevent qualification under this provision.
Article 364 and Unlawful Facilitation of Border Crossing: Does It Fall Under the Law?
In general, actions related to facilitating unlawful border crossing may fall under Article 364 of the Criminal Code. However, qualification depends on determining and proving substantial harm to protected rights, interests, and freedoms. If such harm cannot be proven, the qualification may be challenged. If significant consequences are established, other elements of the subjective side usually pose no difficulties, as case law shows that officials typically commit such acts for personal gain in violation of public duty.
It is important to note that Article 364 qualification is used in specific cases only. There are many other Criminal Code provisions applicable to offenses involving illegal border crossing: illegal crossing of the state border, smuggling of individuals, forgery and use of false documents.
How to Defend Yourself if Accused Under Article 364 of the Criminal Code of Ukraine
The best course of action is to hire a lawyer as soon as you learn of any charges under Article 364. Until consulting with a lawyer, it is better to provide minimal or no testimony. This approach is recommended even for those defending themselves. Even if you are confident in your innocence, caution is necessary—you may not know what information the authorities possess. While the presumption of innocence applies in Ukraine, if the prosecution makes claims, you must refute them. You can do this by providing counter-evidence yourself, but it’s far more effective to entrust the matter to a professional.
How a Lawyer Can Help in a Case of Abuse of Official Position
First, a lawyer saves you time and stress by handling procedural actions and communication with law enforcement. Second, an experienced lawyer understands both the legal framework and practical nuances of courts and law enforcement. Third—and no less important—a good attorney is not limited to one or two steps; their role is multifaceted. Below are some common tasks a defense lawyer typically performs.
To start, a lawyer can provide legal consultation tailored to your specific situation. An experienced attorney will analyze the case, offer insights, and highlight key details. Once engaged, the lawyer develops a defense strategy and advises on your behavior. They will review the case materials, participate in investigative procedures, prepare legal documents, and represent you in court. If necessary, the lawyer gathers evidence and finds witnesses to support your position. In case of violations, they challenge the actions or inaction of law enforcement. Finally, appealing a verdict at higher instances is best left to the same lawyer who handled the case initially.