Anti-corruption legislation imposes a number of restrictions on the prevention and settlement of conflicts of interest. For committing an offense, the court may impose a fine, as well as additionally prohibit the holding of certain positions, which will result in dismissal.
The police and the NAPC are active in drawing up reports. As of today, more than 5,500 decisions have been published in the Unified State Register of Judgments based on the results of consideration of Article 172-7 of the Code of Administrative Offenses (Violation of requirements for prevention and settlement of conflicts of interest). What are the restrictions and what arguments to use in court? We will talk about it further.
Conflict of interest in real life
Many situations arise in connection with the adoption of certain decisions by the heads of village and city councils in their favor or in the interests of relatives: allocation of land to relatives, voting for such decisions, employment and bonuses of relatives, decisions on bonuses and allowances for himself.
It is also common for managers of state or municipal enterprises to enter into contracts with contractors who are related to their relatives. For example, the issuance of certain permits for businesses whose founder or director is a relative of the manager.
In practice, in all disputable situations and even undisputed situations in favor of the declaring subjects, the police and the NAPC draw up a report and send it to the court, so they have to prepare arguments and defend themselves in court.
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What exactly is forbidden?
- Failure person about the presence of a real conflict of interest.
- Taking action or making decisions in a real conflict of interest.
Real conflict of interest - contradiction between the private interest of a person and his official or representative powers, which affects the objectivity or impartiality of decision-making, or the commission or omission of actions in the exercise of these powers.
How to identify conflicts of interest in a particular situation?
To establish the existence of the fact of decision-making, commission or failure to act in a real conflict of interest and the distinction between real and potential conflict of interest, it is necessary to establish:
- clearly articulated private interest;
- the existence of a fact of conflict between the private interest and official or representative powers;
- what is this contradiction, where it finds its manifestation or influence on decision-making;
- the presence of decision-making powers, the presence of the fact of the real impact of the conflict between private and official or representative interest on the objectivity or impartiality of the decision.
In essence, this is the content of the offense itself, which should be reflected in the protocol on an administrative offense related to corruption. The position of the defense should be based on the absence of any contradictions in the decision-making. How is this position perceived by the courts?
- A person's awareness of a conflict of interest must be causally related to the decision made in the interests of another person.
An official of the State Agency for Fisheries considered and satisfied the application of the enterprise, the founder and ultimate beneficial owner of which is his wife's brother to approve the regime of fishery operation of the lake.
The court found that at the time of the application he was not even acquainted with a relative who was the founder of the enterprise. Proceedings did not contain evidence of the person's awareness of the wife's family ties, this information became known only after the start of the NAPC inspection. The materials attached to the application also did not contain data on the founders and beneficial owners of the enterprise. In addition, there were no circumstances indicating a conflict of interest, as no advantages were granted to the company.
In view of this, the Shevchenkivskyi District Court of Kyiv closed the proceedings for lack of an administrative offense (decision of 09.04.2020, case 761/33875/19).
- The People's Deputy's appeal to the NAPC to clarify anti-corruption legislation does not constitute a conflict of interest.
The People's Deputy asked the NAPC to explain how anti-corruption legislation is applied in a particular situation. The NAPC initiated the drafting of the protocol, seeing in the deputy's actions a real conflict of interest due to the use of the deputy's right to send a deputy's appeal allegedly in his personal interests.
The court concluded that the result of receiving such a request was an explanation that concerned not a specific person, but an indefinite number of people, so it is impossible to argue about the private interest of the person. Also, the legislation does not define what parliamentary activity is. At the same time, each deputy addresses the state bodies with a deputy's appeal.
In view of this, the Pechersk District Court of Kyiv closed the proceedings for lack of an administrative offense (decision of 09.01.2020, case 757/19121/19).
In a similar situation, the court sent the protocol for revision due to lack of evidence of delivery of the protocol to the person. As a general rule, the protocol is handed in person. If the person does not appear to receive it, the protocol is sent by registered mail with a notice of delivery and a description of the attachment no later than the next working day from the date of the administrative offense report together with a cover letter in an envelope marked "personally" sent to the person in respect of which a report on an administrative offense was drawn up.
Failure to comply with such requirements gives the court the right to send the protocol for revision. Therefore, the Pechersk District Court of Kyiv, in the absence of evidence of compliance with such requirements, sent the protocol for revision (decision of 11.03.2020, case 757/32354/18-n).
- If a person exercises control over the NAPC, this is not considered a conflict of interest.
A member of the Accounting Chamber of the Verkhovna Rada of Ukraine participated in the implementation of the annual control plan (audit) of financial efficiency (audit) of the efficiency of spending by the National Agency allocated to management and administration in the field of corruption prevention and financing of statutory activities of political parties.
The NAPC regarded this as the use of authority in its own private interests, as it verified the declaration of the said person.
The court found that there is no real or / or potential conflict of interest with the NAPC in the actions of a member of the Accounting Chamberbecause:
- NAPC made decisions independently on full verification of his declaration immediately after the start of the audit procedure in the NAPC, responsible for which he is determined;
- the instructions signed by him for the exit of the control group to the NAPC were issued in accordance with the requirements of the Law of Ukraine “On the Accounting Chamber” and the Regulations of the Accounting Chamber within its competence;
- on the part of the person there was no initiative to start an inspection of the NAPC in the event of a conflict of interest. On the contrary, the NAPC's actions can be considered as pressure on him, as the decision to fully verify his declaration was made after the start of the NAPC audit;
- the action plan for the activities of the Accounting Chamber for 2019 was drawn up in 2018, ie long before the NAPC began verifying his declaration.
In view of this, the Shevchenkivsky District Court of Kyiv established the absence of a conflict of interest and closed the proceedings for lack of an administrative offense. (decision of 31.01.2020, case 761/44284/19).
- Bonuses by a supervisor may not create a conflict of interest.
The chief physician signed an order awarding doctors, which also included his wife, as the head of one of the hospital's departments. The NAPC drew up a protocol through decision-making in a real conflict of interest.
The court found that not any conflict between a person's personal interests and his official powers creates a conflict of interest, as the personal interest of the person and his representative powers may not contradict each other.
A conflict of interest occurs when the specified contradiction actually affected the objectivity or impartiality of decision-making, the commission or non-commission of actions in the performance of official duties granted to the person.
During 2017-2019, the person took measures to prevent the occurrence of real and potential conflicts of interest, in particular, the subordination of the head of the unit was changed to the Deputy Chief Physician for Surgical Work and the Deputy Chief Physician for Medical Affairs. In addition, it is not the head of the institution who is responsible for the award, but his deputy.
Dniprovskyi District Court of Kyiv took into account the arguments of the person and closed the proceedings for lack of administrative offense (decision of 25.10.2019, case 755/14010/19).
Protection in cases of corruption offenses
What is the threat in case of prosecution?
Violation of the established restrictions provides the following responsibility according to Art. 172-7, КУпАП:
- For failure to notify a person in the cases and in the manner prescribed by law of the existence of a real conflict of interest - fine from UAH 1,700 to UAH 3,400;
- For actions or decisions in a real conflict of interest - fine from UAH 3,400 to UAH 6,800;
- For repeated commission - a fine from UAH 6,800 to UAH 13,600, is also possible 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 that the proceedings are closed by a court, such a person must be reimbursed for his or her average earnings during the period of forced absence associated with such removal.
In practice, there may be many different situations that the police and the NAPC will interpret as a conflict of interest. For effective defense in court, it is necessary in each case to prove the absence of conflicts between private interest and performance of official duties.
The subjects covered by this Law are:
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;
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;
a) officials of legal entities of public law, which are not specified in paragraph 1 of part one of this article, members of the Board of the National Bank of Ukraine (except the Chairman of the National Bank of Ukraine), persons who are members of the supervisory board of a state bank, state enterprise or state organization; which aims to obtain a profit, a company in the authorized capital of which more than 50 percent of shares (stakes) belong to the state;
b) persons who are not civil servants, local government officials, but provide public services (auditors, notaries, private executors, appraisers, as well as experts, arbitration managers, independent mediators, members of labor arbitration, arbitrators during their performance of these functions, other persons defined by law);
c) representatives of public associations, scientific institutions, educational establishments, experts of the corresponding qualification, other persons who are a part of the competitive and disciplinary commissions formed according to Of the Law of Ukraine "On civil service", Of the Law of Ukraine “On Service in Local Self-Government Bodies”, other laws (except for non-resident foreigners who are members of such commissions), the Public Council of Integrity, formed in accordance with Of the Law of Ukraine "On the Judiciary and the Status of Judges", and are not the persons mentioned in paragraph 1, subparagraph "a" paragraph 2 of part one of this article