Anti-corruption legislation imposes a number of restrictions on civil servants to make a profit from other sources. The consequences that can occur for such a person are quite aggravating.
Not only a fine can "arrive". The court may withdraw the funds and prohibit them from holding public office positions, which will result in dismissal. The script is not very optimistic, right?
Read also: Hidden risks of cases of corruption administrative offenses
However, there is good news, because in some cases the law still allows civil servants to receive income from other sources.
What is forbidden and what is allowed, and under what conditions - we find out in this article.
What exactly is forbidden?
- Engage in other paid * or business activities, unless otherwise provided by the Constitution or laws of Ukraine.
* Exceptions: teaching, scientific and creative activities, medical practice, instructor and referee practice in sports.
- Be a member of the board, other executive or control bodies, the supervisory board of an enterprise or organization for profit*, unless otherwise provided by the Constitution or laws of Ukraine.
* Exceptions: performing the function of managing shares (shares, units) belonging to the state or territorial community, and representing the interests of the state or territorial community in the council (supervisory board), the audit commission of the economic organization.
Who is forbidden?
Persons authorized to perform the functions of the state or local self-government, except of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Deputies of Local Councils, Jurors, Assistant Consultants of People's Deputies of Ukraine, Employees of Secretariats of the Chairman of the Verkhovna Rada of Ukraine, First Deputy Chairman of the Verkhovna Rada of Ukraine and Deputy Chairman of the Verkhovna Rada of Ukraine Council of Ukraine.
As you can see, for a certain category of people there are exceptions to the general rule.
Pay attention! There are also exceptions in the category of persons who are allowed to combine several positions. If a deputy of the Verkhovna Rada of the Autonomous Republic of Crimea or a local council exercises his powers on a regular basis, then the bans also apply to him.
The full list of people who cannot work part-time or start a business can be viewed lower.
Responsibility
For violation of the restrictions of Art. 1724 The Code of Administrative Offenses provides for the imposition of a fine in the amount of UAH 5,100 to 8,500 with confiscation of the received income or remuneration from part-time work.
For repeated commission of a similar offense during the year if the person was previously subjected to an administrative penalty - a fine of 8500 to 13600 UAH with confiscation of income or remuneration and with deprivation of the right to hold certain positions or engage in certain activities for a period of one year.
!!! In this case, until the end of the case against such a person, he may be suspended from office. However, in the event of the court closing the proceedings, such a person must be reimbursed for the average earnings during the period of forced absence associated with such removal.
It seems that everything is simple. But in practice there are quite interesting cases. We would like to list a few of them in this article.
Judicial practice
- Providing legal assistance to a family member is considered an offense because such services are chargeable.
Plot: The inspector of the regional department of the State Traffic Police, representing her husband's interests in court, claimed reimbursement for legal aid. Even without being a lawyer, the civil servant carried out paid activities, which was confirmed by the acts of services provided.
The court found the person's actions to be an administrative offense and imposed a fine of UAH 5,100.
(Resolution of 17.03.2020 № 750/1887/20 Novozavodsky District Court of Chernihiv).
We believe that if the right strategy is chosen in court, the result could be completely different. What exactly is meant? A person who has been prosecuted without being a lawyer has entered into a legal aid agreement. Such an agreement was in fact invalid, as only lawyers have the right to enter into a legal aid agreement. However, the issue of invalidity of the contract was not raised in court, and therefore the fact of carrying out paid activities was not in doubt.
- Returning to the uncertainty of the concept of official…
Plot: The person, being in the position of "master of the forest" of the district forestry at the same time carried out entrepreneurial activity. The court concluded that the offense did take place, but closed the case due to the expiration of the penalty. (Resolution of 19.11.2019 № 561/763/19 Zarichne District Court).
In our opinion, the position of the court is not entirely legitimate, as the court had to make sure whether the person is the subject of this offense, namely: official or official of the state forest protection. The case file shows that the document that the court took into account was the job description of the offender. However, from the content of the instructions it is established only that the forester is a position that is part of the forest protection. The court decision does not contain any indication of the performance of organizational-administrative or administrative-economic functions. This makes it possible to assert that such a person is not an official and is not subject to restrictions on doing business. Consequently, the person was found guilty of committing an administrative offense illegally.
For example, here is a decision of another court in the same area, but in this case the court correctly determined whether the offender is an official - Resolution of 31.03.2020 № 453/386/20 Skole District Court.
- Receiving a one-time income is not the implementation of other paid activities.
Plot: An official of the National Police was tried to be prosecuted for beekeeping and income from this activity. In the course of consideration of the case it was established that the said person received a one-time income from the sale of excess honey by his father, and the offender was engaged in beekeeping for their own needs (Resolution of 18.10.2019 № 335/7974/19 Vasylivka District Court).
The court found no administrative offense, citing the one-time nature of the income received. According to the court, other paid activities are periodic or permanent and aimed at obtaining remuneration.
- It is not an offense to have corporate rights in a company and to participate in general meetings.
Plot: The person, being the secretary of the city council, was at the same time a member of the business association and took part in the general meeting.
The court found that the ownership of corporate rights is not a business, and the general meeting is a supreme governing body, not a supervisory or executive body for which there are restrictions. Therefore, the proceedings against the person were closed for lack of corpus delicti (Resolution of 07/19/2019 № 569/8379/19 Rivne City Court).
- The fact of carrying out the allowed type of activity still needs to be proved.
Plot: The civil servant on the basis of civil law contracts provided paid services of a coach during educational activities of a non-profit public organization. The lack of a normatively defined concept of "teaching" led to the prosecution of a person with a fine of UAH 8,500 and confiscation of income. However, the appellate court overturned the decision of the local court due to the illegality of the confirmation of the guilt of the person on the basis of assumptions regarding the definition of "teaching". As there is also no official interpretation of this concept, any assumptions unfairly restrict the rights and freedoms of the individual. (Resolution of 10.02.2017 № 760/13989/16-n Court of Appeal of Kyiv).
- Do not forget to stop doing business after taking a responsible position.
Plot: The chairman of the district council was prosecuted for doing business after being elected. This conclusion was due to the fact that the person was not deregistered by the SFS, as he filed a declaration of rent for the land for the next year. The Court of Appeal overturned the decision of the local court because the person did not actually carry out business activities, filed an application for termination of business activity within the time limits provided by law, and continued to pay rent for the land as a property owner. Lack of evidence of the actual implementation of business activities and income from it, were the reason for the cancellation of the court decision (Resolution of 11/18/2016 № 517/217/16-n Court of Appeal of Odessa region).
Protection in cases of corruption offenses
Conclusions
As you can see, law enforcement officers are often wrong and see violations where they do not exist. That is why the correctly formed position in the case and attention to the subtleties of anti-corruption legislation minimizes the risks of prosecution in the case of drawing up a protocol under Article 174-2 of the Code of Administrative Offenses.
Do you have doubts? Contact us, we are ready to help.
Persons who are prohibited from working part-time (authorized to perform the functions of the state or local self-government)
- Persons authorized to perform the functions of the state or local self-government:
a) The President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine, his First Deputy and Deputy Prime Minister, the Prime Minister of Ukraine, the First Vice Prime Minister of Ukraine, the Vice Prime Ministers of Ukraine, Ministers and other heads of central executive bodies , who are not members of the Cabinet of Ministers of Ukraine, and their deputies, the Chairman of the Security Service of Ukraine, the Prosecutor General, the Chairman of the National Bank of Ukraine, his first deputy and deputy, the Chairman and other members of the Accounting Chamber, the Verkhovna Rada Commissioner for Human Rights. protection of the state language, Chairman of the Verkhovna Rada of the Autonomous Republic of Crimea, Chairman of the Council of Ministers of the Autonomous Republic of Crimea;
b) people's deputies of Ukraine, deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, deputies of local councils, village, settlement, city mayors;
c) civil servants, local government officials;
d) military officials of the Armed Forces of Ukraine, the State Service for Special Communications and Information Protection of Ukraine and other military formations formed in accordance with the laws, except for conscripts, cadets of higher military educational institutions, cadets of higher educational institutions military institutes, cadets of faculties, departments and divisions of military training;
e) judges, judges of the Constitutional Court of Ukraine, Chairman, Deputy Chairman, members, inspectors of the High Council of Justice, officials of the Secretariat of the High Council of Justice, Chairman, Deputy Chairman, members, inspectors of the High Qualification Commission of Judges of Ukraine, officials of the Secretariat of this Commission State Judicial Administration of Ukraine, jurors (while performing their duties in court);
e) persons of the rank and file and chief staff of the state penitentiary service, tax police, persons of the chief staff of bodies and divisions of civil defense, the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine;
f) officials and officials of the prosecutor's office, the Security Service of Ukraine, the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine, the diplomatic service, the state forest protection, the state protection of nature reserves, the central executive body implementing state tax policy and the central body executive power, which implements the state customs policy;
g) Chairman, Deputy Chairman of the National Agency for Prevention of Corruption;
g) members of the Central Election Commission;
h) police officers;
i) officials and officials of other state bodies, authorities of the Autonomous Republic of Crimea;
i) members of state collegial bodies;
j) Head of the Office of the President of Ukraine, his First Deputy and deputies, advisers, assistants, commissioners, press secretary of the President of Ukraine, assistant judges.
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