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Institutional and managerial measures
Social and psychological measures
Section IV. Improvement of the legislation on responsibility for corrupt practices
Section V. Activity of the state bodies on exposure of corrupt practices and making the guilty persons responsible for them
Part III. Preclusive effect upon social prerequisites of corruption. Prevention of corruption practices|
The strategy aimed at preclusion and neutralization of corruption prerequisites is based on consistent democratization of all spheres of social life, development of public consciousness and activity in terms of formation of a democratic state. Democratization, transparency, openness of state authorities, proper understanding of ordinary people of decisions made by the latter, development of public society constitute the most important sources of the struggle against corruption.
Preclusive effect upon social prerequisites of corruption should be made in the following directions:
- liberalization and deregulation of economy, relaxation of the state control over economic and social processes, expansion of the legislative framework and institutional-managerial conditions for support and protection of both entrepreneurship and all forms of ownership;
-shaping and acceleration of implementation of administrative reform;
- development of legislative regulation and accelerated implementation of new functions, amended powers and institutional forms in the relations between the state and local self-government bodies;
- utilization of economic, institutional-managerial, educational, occupational, moral and psychological means in order to create the mechanism for inculcating such qualities as decency, politeness, honesty and high professionalism in civil servants of all ranks engaged in rendering services to population, paid services, first and foremost;
- strict observance of the rule of law, the principles of equality and justice in combating corruption and other kinds of office abuse, in particular, detailed checks and transparent legal appraisal of all cases ( regardless of time) involving the formation of private capital through the use (in an open or hidden way) of the state property.
Pursuant to the strategic direction of preventing the social prerequisites of corruption, it is proposed:
- to take a number of ideological and mass-political measures in order to determine the political forces that lead, initiate and constantly stimulate the state and public activities against corruption;
- to provide institutional, material and legal conditions for establishment of the human rights ombudsman office;
- to annul the parliamentary immunity of the people's deputies of Ukraine, to limit the immunity of judges;
- to ensure the equality all citizens before the law in the event of exposure of corrupt practices, to take legal actions against the persons guilty of such practices regardless of their posts and ranks;
- to raise the level of public consciousness and anti-corruption activity of population. In doing so, it is necessary to involve not only traditional public association but also to help set up new non-governmental anti-corruption institutions;
- to work out and implement the mechanism for more active participation of work collectives in the process of control over the observance of anti-corruption legislation, over the corruption prevention measures, to organize public discussion of such measures;
- to elaborate the legal norms for ensuring the transparency of funding the political parties and public organizations, the control over financial sources, the verification of profits and expenses of leaders and activists of such parties and organizations, also for fixing the criteria and the mechanism of control over funding of election campaigns;
- to adopt the code of conduct for the persons in elective offices, including the deputies, making there the provision for the voters to check the profits and expenses of the persons elected by them;
- to coordinate the anti-corruption efforts of non-governmental institutions (foundations, associations) and the missions of similar foreign institutions which support social transformations in Ukraine.
The following is envisaged to preclude corruption practices:
- to improve the taxation system, to reduce the tax burden on entrepreneurs and other physical entities, to simplify the taxation procedure, to expand the range of effecting the fixed payments;
- to expose and prohibit any monopolistic practices, to promote natural competition;
- to provide favorable conditions for local and foreign investments into legal economy;
- to analyze and improve the system of control over the use of state property, exposure of the cases of illegal profits of private persons and groups obtained due to operations with such property;
- to continue the support of entrepreneurship, to simplify both accounting, reporting and registration of business entities, to adjust the mechanism if registration annulment, to conduct the registration in a one-shop state agency; to fix the terms and grounds for checking the activities of business entities;
- to work out the system for criminological and criminalistic protection of entrepreneur-ship, small business, capital savings and other forms of private ownership from external and internal intrusions, also from unlawful interference on the part of state bodies and non-governmental institutions;
- to elaborate and implement the mechanism for repatriation of capital, conclusion of investment agreements etc.;
- to raise the level of salaries and social security of civil servants;
- to provide that members of the Cabinet of Ministers of Ukraine, heads of the central executive bodies shall, when occupying their posts, transfer to trusteeship against the state guarantees their stakes (shareholdings) in the authorized capital of business entities;
- to improve the legal regulation and management of stock market, to ensure the competition and transparency of such activities concerning, in the first place, the sale of shareholdings in the course of privatization of the state property;
- to introduce transparency and competition into the system of public procurement, privatization and state property leasing;
- to simplify the mechanism and to provide equal conditions for business, entities of different forms of ownership in such spheres as licensing and registration of businesses and entrepreneurs, customs, border, ecological, sanitary and other types of control, certification of products;
to keep cutting the list of business activities subject to licensing;
- to develop an efficient system of economic and financial means to combat money laundering.
It is recommended:
- to analyze the legislation on protection of human rights and citizens from corruption, also the adequacy and stability of regulation of the relations in business, economic, financial, crediting and banking spheres, to determine the gaps, discrepancies and provisions that result in different interpretation of such relations, other drawbacks that could be applied for corrupt practices and other kinds of jobbery; in doing so, to take into account the international experience, to prepare the proposals on improvement of such legislation;
- to precisely classify the anti-corruption and other pertinent normative and legal acts, to prepare the recommendations on improvement of such acts;
- to legally regulate the issue of establishment and activity of the National Bureau of Investigation of Ukraine;
- to step up elaboration of legal grounds and the mechanism of banks reporting to the law-enforcement bodies;
- to analyze the court practice concerning the consideration of appeals against the decisions, actions or inactivity of the state bodies, local self-government authorities, public officials and civil servants;
- to elaborate the legal grounds and the mechanism of compulsory and unconditional compensation by the state for the damage, groundless losses included, inflicted upon a citizen as a result of wrong application or non-observance or improper observance of the legal norms during performance of official duties with the following coverage of said losses by the officials guilty of such damage or losses;
- to accelerate the process of legal regulation and introduction of criminological analysis of draft laws and by-laws; to impart anti-corruption character to such analysis, to determine the methodological and other means essential for this work;
- to study the problem of maximum possible limitation of discretionary powers of the law-enforcement bodies, particularly in making the decisions on the release of persons from administrative and criminal responsibility;
- to analyze the issue of adequacy of the legal and physical protection of victims and witnesses, media workers and other persons who help expose the persons guilty of corrupt practices, to make recommendations on ensuring such protection.
It is recommended to do the following to improve the activity of managerial staff in terms of democracy and rationalism:
- to cut down the managerial apparatus, to limit its regulative, permit issuance and directive functions, including those connected with granting benefits, advantages, licenses through replacing them with the functions of control over observance of the law;
- to analyze and fix, for each economic sector and production stage, the official actions, operations and decisions encouraging corruption, to specify the conditions and procedures precluding such actions and decisions; to determine the rules and standards for making the institutional and managerial decisions, issue of official documents to population and other services; to inform the public about said standards, procedures and rules;
- to provide selection and placement of personnel on an unbiased contest basis, to ensure proper employee ranking, periodical rotation and single-level transfer; to improve the control over the profit-declaring procedure fixed for civil servants;
- to elaborate and enforce standard staff promotion rules' (conditions), the guarantees of observance of such rules;
- to make it compulsory for the ministerial boards, state executive bodies and institutions, company personnel to periodically consider at their meetings the issues of public service legislation, corruption combating and preventive measures;
- to specify the conditions and procedure for legitimate receipt of gifts, commission, awards, fees, services etc., by public officials and other persons authorized to perform the state functions, also the use of transport and communication facilities, equipment and other property regardless of the forms of ownership by such persons;
- to develop the mechanism of efficient control over observance of the law prohibiting the civil servants of all ranks to take part in business activity;
- to analyze and generalize the mechanism of response to corruption and office abuses, the conformity of such a response to the law, to enhance the efficiency of the response up to dismissal and prosecution of the persons guilty of such actions;
- to work out the code of conduct for civil servants, the code of honor for judges, also the pertinent disciplinary codes specifying the procedure of calling the guilty persons to disciplinary account, the types and limits of penalties for office abuses, also the incentives for proper conduct;
- to organize an independent and comprehensive check of legality and soundness of establishment of the non-governmental institutions (firms, agencies etc.) for conducting the operations and procedures at high price, that is, the operations at procedures performed free of charge or at a lower price by the state institutions; to determine the mechanisms and causes allowing the non-governmental institutions to more quickly and simply render such services, also the possible ways of corrupt practices in doing so;
- to analyze the issue on calling to account the heads of institutions and establishments for corrupt practices on the part of their subordinates, also for not taking any measures on preclusion of such practices;
- to impose limitations on appointment to the posts in the state and local self-government bodies of the persons who committed the offenses connected with corruption;
- to set up a data bank of persons convicted for corruption or penalized for it in order to use such information for checking the candidates for official posts and the persons who occupy such posts;
- to fix the responsibility of officials in the state and local self-government bodies for the failure to respond, pursuant to the law, to critical statements of the media pertaining to the proven facts of corruption and violation of human rights;
- to consider the possibility of establishing the data bank about the business entities addicted to corruption in order to preclude their participation in execution of public procurement contracts;
- to analyze and improve the measures (means) of financial and bank control aimed at exposure of corruption practices;
- to analyze and fix the level of competence, responsibilities and powers of the State Auditing and Inspection Service of Ukraine, the National Bank of Ukraine, the State Customs Service of Ukraine, the State Tax Administration of Ukraine, the Ministry of Foreign Economic Relations and Trade of Ukraine, the Ministry of Internal Affairs of Ukraine and other state institutions performing the supervisory and regulative functions with respect to physical and legal entities in order to prevent and combat corruption in the bodies subordinate to them.
Implementation of the Concept implies the following:
- elaboration and introduction of the system and program for raising the level of population’s knowledge about the role, ways and forms of development of public institutions, fair relations between the state bodies and citizens, negative attitude towards corruption and its causes, enhancement of patriotic motivation for personal participation in preclusion and exposure of corrupt practices;
- broad use of educational programs and news media in order to inform population about the rights of citizens and the ways of their realization, about the procedures for considering the requests of ordinary people, about the decision-making process pertaining to such requests;
- making provisions for promotion of publications, TV and radio broadcasts covering such issues as combating corruption, well-doing, establishment and strengthening of public institutions, observance of the anti-corruption legislation, exposure and punishment of corrupt persons, shaping the public opinion about inadmissibility, harm and condemnation of corrupt practices, the necessity of participation of population in their preclusion and exposure;
- dissemination of information, provided by courts and law-enforcement bodies, about bringing the corrupt persons to book, about the corruption prevention measures, about participation of population in combating corruption;
- promotion by the state bodies of the initiatives of public organizations, political parties and law-enforcement bodies on establishment of public associations and other non-governmental anti-corruption institutions, proper support of such institutions and associations.
When elaborating the plans for implementation of this Concept, it is recommended to determine the measures that do not require special approval or amendments in the anti-corruption legislation, that is, they can be taken in accordance with the resolutions of the executive bodies or in some other way; such urgent measures should be implemented in 1998.
When improving the legislation on responsibility for corrupt practices, special attention must be paid to the following aspects:
- systemic approach to interpretation of the different norms of the law, in particular, clarification of social and legal notion "corruption", specification of such terms as "corrupt practices and "corruption offense", their forms (types) in different fields of the law;
- elaboration of the legal instruments (methods, recommendations, comments etc.) for adequate determination of the degrees of social danger of specific corrupt practices, the forms of responsibility for such practices, the criteria of separation and interconnection of sanctions and penalties;
- comprehensive approach to specification of anti-corruption measures in different fields of the law, provision of the corruption preclusion and exposure norms, more efficient exposure and punishment of the guilty persons, elimination of the corruption aftermath;
- elaboration and introduction of the provisions for proper application of anti-corruption legislation norms and their practical use.
The legislation on responsibility for corrupt practices must be improved through:
- urgent measures, that is, amendments and additions in the laws and other normative and legal acts;
- long-term measures to be taken in the course of a regular codification of the criminal, administrative, labor and civil laws.
Urgent measures should include:
- additions to the anti-corruption legislation with a broader definition of the subject of corrupt practices stressing the fact that civil servants of all ranks and categories are equally responsible for such practices;
- expansion of the list of circumstances aggravating the responsibility for office abuses on the part of high-rank officials;
- creation of the mechanism of juridical response to the facts of evasion from presenting the declaration about profits, available property and expenses;
- further fixing in the legislation the duty of public officials and entrepreneurs to provide the respective state and non-governmental bodies ( at their request) with the information about profits, property and expenses, also creation of the mechanism for checking the sources and legality of such profits;
- review of the existing criteria for specifying the notion of big and extremely big bribes;
- review of the criminal responsibility for.accompliceship in bribery;
- clarification of the notion and criteria for interpretation of great harm and grave consequences resulting from office abuse;
- bringing the notion of a public official as a special subject of crime in line with the existing socioeconomic realities;
- introduction of special norms of civil liability of legal entities (penalties, liquidation) for obtaining profits and property through illegal transformation of the state property into the private one or using the funds received due to corrupt practices, also the responsibility of legal entities that use such funds in their activity;
- fixing the civil liability of legal entities for using their property and funds for corruption purposes;
- expansion of the legal compromise institution for the subjects of corrupt practice that voluntarily helped expose, investigate and terminate the corrupt practices committed personally by them or by other persons;
- stripping the persons, involved in corruption, of the right to perform certain kinds of professional and commercial activity, fixing the possibility of confiscation of illegally obtained property or its monetary equivalent, bringing a civil action for damages inflicted upon a person as a result of corrupt practices;
- adding the provisions to the Labor Code of Ukraine according to which corruption practices are the grounds for annulment of a labor agreement (contract).
Longer-term measures shall involve:
- differentiation of the responsibility for certain corrupt practices allowing for their nature and danger;
- finalizing the norms of responsibility of public officials for jobbery, other related abuses of office and the use of opportunities connected with such offenses;
- introduction, on parity with the general norms of responsibility for office abuses, of special provisions specifying the liability for certain kinds of corrupt practices also for the actions hindering the struggle against corruption. Such provisions may be applied in the event of non-fulfillment of the duties aimed against corruption, protectionism, illegal obtaining of intangibles, participation in money laundering;
- improvement of the system of criminal and legal sanctions pertaining to the norms of responsibility for corrupt practices, their harmonization with the legal provisions applied in the event of similar offenses in other fields of the law;
- fixing that members of a collegiate body who, resorting to corrupt practices, promoted the approval of illegal decision through voting or by other means shall bear juridical responsibility for the damage inflicted as a result of such actions.
It is necessary to improve the activity on more efficient and timely exposure and investigation of corrupt practices, on making the public officials and civil servants responsible for such practices.
The following measures will stimulate the process of exposure of corrupt practices:
- establishment and selection of secret and independent subdivisions and officers in the organized crime and corruption combating task forces that will expose corruption practices, analyze the information about such practices and take actions, pursuant to the law, against the persons guilty of such practices or involved in them;
- cardinal restructuring of the system ensuring the efficiency of investigation of corrupt practices;
- selection in statistical reports of the bodies of the Ministry of Foreign Affairs of Ukraine, the Security Service of Ukraine and the National Bureau of Investigation of Ukraine of the information about the number of exposed corrupt practices, social spheres in which such practices occurred, also about the promptitude and efficiency of verification of such information;
introduction of special reports about establishment and actions of the organized criminal groups in economic, financial, banking, foreign trade and state power spheres, about the corrupt ties found during the exposure of such groups. This information should be separated from the data on exposure of the organized criminal groups preparing and committing the offenses of general criminal character;
- establishment and implementation of the procedures according to which a subdivision of a relevant law-enforcement body, which received or uses the information about the activity of an organized criminal group in economic, financial, banking, foreign trade and state power spheres, shall expose the corrupt ties that helped set up, cover, protect and support the activities of such criminal group;
- introduction of the mechanism for raising the efficiency of checks, including the unexpected ones, carried out by other (not law-enforcement) state bodies exercising control over certain activities of the state and non-governmental institutions with the aim of adequate exposure of office abuses which can encourage corruption, adequate supply of such information to the law-enforcement bodies;
- establishment, within the framework of the state computer-aided criminological data system (which is being developed now), of special information subsystem dealing with criminogenic corruption factors, monitoring of the corruption dynamics; the use of such information for prevention, exposure and forecasting of corruption practices, introduction of special criminological examination of the draft anti-corruption by-laws, managerial decisions, commercial, credit, foreign economic agreements and the like;
- prompt response to the information provided by control bodies, citizens and news media about corrupt practices and office abuses, strict observance of the procedure fixed to reach this goal.
It is necessary to do the following in order to stimulate the active of corruption combating bodies:
- to orient their investigation and detection work towards exposure of the most dangerous corrupt practices in the state bodies, vital spheres of social life and the sectors where such practices are most widely spread;
- to introduce a reliable mechanism for proper use of on-line information about the corrupt practices according to which the heads of law-enforcement bodies or their divisions have exclusive powers and bear personal responsibility for taking the decisions, pursuant to the law, on responding to such information. In doing so, the decision-making level in each particular case must correspond to the official rank of the person guilty of corrupt practices;
- to introduce the methods for finding, verifying and using the information about corrupt practices in economic and social spheres;
- to define the procedure for complete and timely registration of the reports about corrupt practices and related offenses, to call to juridical account the staff members of law-enforcement bodies who violate such procedure;
- to finalize the legislation on the ways of supplying the information to law-enforcement bodies about the funds and property of certain legal and physical entities; to standardize and specify in a single by-law the conditions and procedure of providing the law-enforcement bodies with such information taking into account the provisions on the privacy of deposits;
- to determine the mechanisms of interaction between special corruption exposure bodies with other institutions engaged in operational, technological, informational and other kinds of support of the anti-corruption activity;
- to introduce a single state system for registration of the persons suspected of corruption or involved in it on the basis of on-line information with classification of such persons according to their profession, sphere and region of activity.
The following shall be done to improve the activity on calling to account the persons guilty of corruption:
- to define the jurisdiction of corrupt practices;
- to update and implement the methods of investigation of criminal cases and preparation of the materials about administrative offenses in this sphere;
- to bring the criminal procedure and administrative legislation in the part concerning the establishment of the guilt in line with the requirements of today;
- to limit the privileges that prevent to call to account the persons guilty of corruption, to narrow the judicial discretion in the cases involving corrupt practices;
- to provide reliable protection against the encroachments upon the life, health, freedom and dignity of witnesses, victims and other participants in a trial, to preserve, if necessary, the confidentiality of their testimonies,
The following should be done to raise the efficiency of the activity on exposure and bringing to book the persons guilty of corruption and involved in it:
- elimination of overlaps of functions of the state bodies;
- establishment of the public, state and departmental control over such activity;
- preclusion of the evasion from responsibility of the civil servants guilty of violation of the anti-corruption legislation.
|Olha Kozmenko (Ukraine), Olha Merenkova (Ukraine), Anton Boyko (Ukraine), Hanna Kravchuk (Ukraine)||The Ministry of Education and Sciences of Ukraine National Academy of Sciences of Ukraine Main Department of Civil Service of Ukraine|
|Iryna D'yakonova (Ukraine) Institutional organization of banking supervision: lessons for Ukraine||Veremchuk D. V. Ukrainian Academy of Banking of the National Bank of Ukraine, Ukraine Boyarko I. M|
|Wipo-ukraine Summer School on Intellectual Property Odessa, Ukraine, July 20 to 31, 2009||Ministry of Education, Science, Youth and Sports of Ukraine National Aviation University Engineering Academy of Ukraine|
|Ministry of Education, Science, Youth and Sports of Ukraine National Aviation University Engineering Academy of Ukraine||Igor Osyka, researcher University of Internal Affairs Kharkov, Ukraine organised economic crime problems in ukraine*|
|Nas ukraine kyiv Law University ukraine||Ministry of education and science, youth and sport of ukraine institute of the ukrainian language of the nas of ukraine national university “lviv polytechnic”|