Liability for Official Negligence: Case Law and New Approaches

In today’s environment, the work of public officials is closely connected with making administrative decisions that directly affect the implementation of state policy and the protection of legally protected interests.

Given the specific nature of public service and administrative functions, a public official, while performing official duties, often faces a choice where virtually any course of conduct may formally contain elements of a criminal offense: refraining from active action or delayed response may be qualified as official negligence under Article 367 of the Criminal Code of Ukraine, while making active managerial decisions may be treated as an intentional official offense containing elements of crimes provided for in Articles 191 or 364 of the Criminal Code of Ukraine.

Legal Regulation of Liability for Official Negligence

Under the current criminal legislation of Ukraine, criminal liability is provided for certain official offenses, including failure to perform or improper performance by an official of their official duties due to a negligent attitude toward them, under the relevant part of Article 367 of the Criminal Code of Ukraine, depending on the consequences caused.

Criminal liability for official negligence has effectively become an instrument for preventing indifference and irresponsibility in public service, since negligence, even if unintentional, may negatively affect the rule of law and the stability of the state’s functioning.

A crime is considered completed if the act caused substantial damage under Part 1, grave consequences under Part 2, or the death of a person under Part 3. The absence of such consequences may indicate that the person committed a disciplinary or administrative offense.

Social relations are constantly changing and becoming more complex, while Article 367 of the Criminal Code of Ukraine is formulated rather generally. In this context, the legal positions of the Supreme Court play an important role, as they allow the content of this provision to be clarified and ensure its proper application in view of modern conditions.

According to the ruling of the Criminal Cassation Court of the Supreme Court dated 19 June 2025 in case No. 607/15800/21, “for the qualification of a person’s actions under Article 367 of the Criminal Code of Ukraine, it is necessary to establish the failure to perform or improper performance of official duties that fell within the person’s competence, as well as the existence of a direct or, in some cases, indirect necessary causal link between such actions or omissions of the official and the consequences.”

Elements of the Criminal Offense and Case Law

The elements of the criminal offense provided for in Part 1 of Article 367 of the Criminal Code of Ukraine, as with any other criminal offense, include four mandatory components:

• object;
• objective side;
• subject;
• subjective side.

As stated in the ruling of the Criminal Cassation Court of the Supreme Court dated 16 September 2025 in case No. 305/2050/15, “from the objective side, official negligence is characterized by the presence of three elements in their entirety:

1. an action or omission by an official;
2. consequences in the form of substantial damage to legally protected rights and interests of individual citizens, state or public interests, or the interests of individual legal entities;
3. a causal link between the specified actions or omissions and the harmful consequences.”

Official negligence may take the form of:

• failure to perform official duties due to a negligent attitude toward them;
• improper performance of official duties due to a negligent attitude toward them.

Failure to perform official duties means that an official does not perform actions that are unconditionally required of them in the course of service. This type of negligence is referred to as “pure” omission, where the official completely fails to perform their duties.

Improper performance of official duties refers to actions by an official within the scope of their official duties that are performed not as required by the interests of the service. This type of official negligence is referred to as “mixed” omission, where the official performs their duties improperly, acts incompletely, or fails to take all actions expected of them.

In practice, a person is often charged under Article 367 of the Criminal Code of Ukraine specifically for omission, although the actions whose non-performance is being incriminated did not actually fall within their official powers. In such cases, pre-trial investigation bodies mistakenly proceed from the presumption of a “general duty of control” or abstract “proper management,” which contradicts the legal nature of the elements of official negligence.

In its ruling dated 19 September 2024 in case No. 243/4761/20, the Supreme Court reached a key conclusion for qualification under Article 367 of the Criminal Code of Ukraine: “liability under this provision arises only if the actions whose failure to perform or improper performance caused the consequences provided for in this article were included in the scope of official duties of that official, or if the duty to act in the relevant manner was legally included, by law, decree, resolution, order, instruction, etc., in the scope of official powers of such person.”

In addition, according to the ruling of the Criminal Cassation Court of the Supreme Court dated 31 July 2024 in case No. 742/3620/21, “liability under Article 367 of the Criminal Code of Ukraine arises only when the official was not only obliged but also had a real opportunity to act in the relevant manner. Such opportunity is determined by objective factors, including proper protection of inventory assets, an adequate workload, lawful conduct of other employees, etc., and subjective factors, including the official’s experience and qualifications, level of education, and so on. To conclude that the objective side of official negligence is present in a person’s actions, it is also necessary to establish which specific duties and in what manner the person was required to perform them in the existing circumstances.”

Who Is an Official: The Functional Approach of the Supreme Court

The subject of the crime provided for in Article 367 of the Criminal Code of Ukraine is any official who carries out official activities in the public or private sphere. The definition of an official is provided in Parts 3 and 4 of Article 18 of the Criminal Code of Ukraine.

Traditionally, an ordinary citizen may perceive Article 367 of the Criminal Code of Ukraine as applying primarily to public servants or officials of public authorities. However, modern law enforcement practice and the positions of the Supreme Court show that the range of possible subjects of this crime is significantly broader than “classic” public servants or officials of local self-government bodies.

Thus, in its ruling dated 5 October 2021 in case No. 686/17787/16-k, the Supreme Court concluded that “according to Part 3 of Article 18 and the note to Article 364 of the Criminal Code of Ukraine, officials include, among others, persons who permanently or temporarily hold positions at enterprises, institutions, or organizations related to the performance of organizational and administrative or administrative and economic functions, or who perform such duties under special authority. Organizational and administrative functions include, among other things, management of a labor collective and the production activities of individual employees, while administrative and economic duties are duties related to the management or disposal of property, for example, establishing procedures for its storage, processing, sale, ensuring control over these and similar operations. As the Supreme Court of Ukraine has stated in its practice, an entrepreneur may be recognized as an official performing organizational and administrative duties when he or she is the head of a labor collective of hired employees who, under an employment agreement concluded with him or her, assist in carrying out entrepreneurial activity.”

Therefore, the Supreme Court’s approach indicates that the key criterion for recognizing a person as an official is the content and nature of the functions performed, rather than formal status or affiliation with a particular organizational and legal structure. A person acquires the characteristics of an official when they actually exercise organizational and administrative or administrative and economic powers. This approach reflects a functional understanding of the concept of an “official” and ensures its application regardless of the form of ownership or organizational status of the subject.

According to the ruling of the Criminal Cassation Court of the Supreme Court dated 19 November 2024 in case No. 751/626/22, “from the subjective side, official negligence is a negligent criminal offense and is characterized by criminal self-confidence, where the official foresees that failure to perform or improper performance of official duties may cause substantial damage to rights and legitimate interests but recklessly relies on preventing it, or by criminal negligence, where the official does not foresee that their conduct may cause substantial damage, although they should and could have foreseen it. At the same time, the official’s attitude toward the negligent performance of their official duties may be either intentional or negligent.”

Conclusions for Law Enforcement Practice

The analysis of the legal nature of official negligence shows that Article 367 of the Criminal Code of Ukraine has clearly defined limits of application, which are determined not by an abstract idea of an official’s duties, but by the specific content of their powers established in regulations or job descriptions.

The Supreme Court consistently emphasizes the need to prove:

• the existence of a specific official duty;
• the real possibility of performing it, taking into account objective and subjective factors;
• the causal link between improper performance or non-performance and negative consequences in the form of substantial damage or grave consequences.

This approach makes it possible to avoid substituting criminal liability with a general “liability for everything,” which is often encountered in practice.

The significant development of case law in recent years has contributed to the clarification of both the content of the objective side of the offense and the range of possible subjects. In particular, the legal position on the possibility of recognizing an individual entrepreneur as an official, provided that such person performs authority-based managerial functions, demonstrates a modern approach to interpreting the characteristics of the subject of a criminal offense. This development of practice corresponds to the trends of expanding forms of public administration and the need to ensure an appropriate level of responsibility regardless of the formal organizational structure.

Therefore, official negligence as a criminal offense requires a thorough examination of each element of the offense and the establishment of clear facts confirming both the existence of the relevant duty and the person’s real ability to perform it properly. At the same time, criminal law must remain an instrument for responding to substantial violations, rather than a means of imposing personal liability for gaps in legal regulation, the absence of clear regulatory instructions regarding the proper algorithm of action for an official in complex situations, or a forced choice between several mutually exclusive decisions, each of which may potentially contain elements of a crime.

Further improvement of law enforcement practice in cases of official negligence should be aimed at preserving balance: on the one hand, effective protection of public interests, and on the other, preventing unjustified criminal prosecution of officials who acted in conditions of legal uncertainty.