With the entry into force of the Law of Ukraine “On Prevention of Corruption” on October 14, 2014, was enacted appropriate legislative mechanism for the settlement and implementation of financial controls to prevent corruption offenses in Ukraine among officials authorized to perform the functions of the state and local governments.
A comprehensive list of the declaration contained in Article 3 of the Act. In particular, from January 1, 2017 entered into force new amendments to the general anti-corruption law of Ukraine, including one of the major new issues raised before the Ukrainian society was: “Who is considered the official legal entity of public law?”.
That is, the individual being separated unit head of state enterprise or his deputy, such as head of the department of PJSC “Ukrposhta” which is having quite a small salary, has along with judges and prosecutors to submit e-declarations?
Is not this phenomenon, at least not entirely correct and fair to the so-called officials of the state-level. When their function in fact include the organization receiving registered letters, and real power to guide in this case, just referred to on paper and nothing to do with governance and have powerful functions?
Or another example, the structure “Energoatom” is a separate unit – the South Ukrainian nuclear power plant. According to the organizational structure of separate unit, available general department of about ten people and basic “functionality” – record keeping. The question is – what can manifest abuse of the head of department, as the subject of the declaration within the system to prevent corruption in Ukraine.
In this case, to understand who is an officer of a legal entity of public law, is to bring the wording provided by the National Agency for Prevention of Corruption, on its official website.
By “officials of legal entities of public law” (in accordance with subparagraph “a” of paragraph 2 of Article 3 of the Law) should be understood employees of legal entities of public law which endowed of authority to carry out organizational and administrative or administrative functions. The decisive here is the volume functions (responsibilities) of the employee.
Administrative functions (responsibilities) – a responsibility for the administration or management of state, municipal property (setting order storage, processing and realization of software control over these operations, etc.). Such powers in a given volume is in the heads of planned commercial, procurement, financial services and departments, heads of warehouses, shops, workshops, studios, their deputies, heads of departments of enterprises, departmental inspectors and controllers and more. Organizational and administrative functions (responsibilities) – a duty to implement management branch of industry, labor groups, site work, production activities of individual employees in enterprises, institutions or organizations, regardless of ownership. These functions are performed, including heads of ministries and other central executive authorities, government, utility companies, institutions or organizations, their deputies, heads of departments (heads of departments, heads of departments, laboratories, departments), their deputies, those who govern areas works (masters, superintendents, foremen, etc.).
And given the above, it should be noted that employees of enterprises, institutions and organizations that perform professional (doctor, teacher, etc.), industrial (driver, seamstress, etc.) or technical (typist guards operator boiler, etc.) functions, recognized the officials only if that along with these functions they perform organizational and administrative or housekeeping duties. And organizational and administrative literally can be expressed in the presence of two subordinates.
National Agency for Prevention of Corruption We believe this approach is flawed because of the following. For the purposes of a clearer definition of the declaration, according to the applicable laws and law enforcement practices, should form a narrower interpretation of the concept of “official” taking into account the changes that took place in Ukraine Commercial Law as amended on 02.06.2016 year.
So according to the provisions of ch. 3. 65 in the new edition of the Civil Law of Ukraine – to guide the business enterprise owner (owners) or through the authorities or the supervisory board of the company (in case of formation) appoint (elect) the company manager, who is accountable to the owner, his authorized body or the supervisory board . Company director, chief accountant, members of the supervisory board (in the case of education), the executive body and other bodies of the company under the statute are officials of the company. Charter company officials can be recognized and others.
That is, the Commercial Law of Ukraine clearly defined – who fall under the term “official”. And this criterion is appropriate for the selection of e-declaration.
However, the official website of the Ministry of Justice are guidelines “Preventing and Combating Corruption in government and local government” which states that the definition of “officer” should be based on law enforcement. In particular, the Resolution of the Supreme Court of Ukraine of April 26, 2002 № 5 “On judicial practice in cases of corruption,” according to which the main criterion for assigning a person to a range of officials is the presence in it of organizational-administrative or administrative-economic functions.
Subject to the above mentioned ambiguous positions, the legislator approach to the definition of “officer” is not perfect. So controversial interpretation can be used to protect the rights and interests of workers in the process of judicial review in the future protocol drawn National Agency for Prevention of Corruption.
In general, this formulation is quite extensive, as a sign, for example as exercise managing things, describes the activities of not only officials but also other workers who are not in the service. These individuals can be given as to the functions of material and monetary values on the basis of special orders data managers.
In order to clarify the concept of “official” to highlight particular characteristic feature of the status of this category of employees, and this feature is provided officio functional powers confer official status official.
All officials vested with legal and governmental powers of managing people. For this position hold to his work in academia and practice, a wide and a narrow understanding of the official.
In particular, in the narrow sense of public officials are servants carry “state-powers defined competence and official activities.” Being in public service, the official shall have official powers and perform them in the public interest. That is a subject which has the state-of power, ability to hold the device in place of state coercion.
But now are discussions about the appropriate changes in the circle of the declaration, to most accurately determine the persons who will be obliged to submit the declaration, because the practice of filling the e-return and gather information for its completion is great work and significant time and work and personal.
So declaring such subjects as “officials of legal entities of public law” – is the only employees entrusted functional duties on a permanent basis to exercise public authority solely to certain positions in the statute (constituent documents) enterprises, institutions and organizations created administrative act of the highest authority, and provided to a particular area of competence and performance management by officials.
It is appropriate – and why National Agency for Prevention of Corruption, it does not collect information, as is the Unified State Register of real rights to immovable property and their encumbrances Unified State Register of mortgages resources of the State Fiscal Service of Ukraine, the Pension Fund of Ukraine and different databases of banks – just think! It is necessary to enter the identification number of the taxpayer and make an electronic request (for electronic signature National Agency for Prevention of Corruption) for fiscal serve or to any bank – and here it is a miracle! There is information about the declarant! While taking into account the existing potential of qualified personnel in the field of IT technologies.
But as always our legislators or lack of understanding or desire to implement it – all done only to official medium and low level – in wages in 4000 or 5000 UAH. month with “tons” of even spent their time, strength and “mood” to complete declarations … Why? But they say that’s another story.
Also in the core generally no legal provisions that are “legal person of public law”, ie formally present an additional basis for consideration at the appeal court ordered the administrative offense.
Convinced that such a criterion for identifying the employees – “the officials” most aptly and correctly defined in Article 65 of the Commercial Law of Ukraine. And 99% of charters of public enterprises is not provided to other posts that can be attributed to such concepts as “official” in accordance with those legislative interpretation.
Understanding organizational and economic functions (disposal of state property), it is offset in the amount of the property, which administers the manager of a branch of the state enterprise – it can be a TV, stapler and monitor a property which is on the balance sheet in the form of non-current assets? This essential public assets from National Agency for Prevention of Corruption dear? So this level officials should declare their assets? As the head of an individual station Kiev metro, the person must declare their assets?
This is ridiculous! Almost in such cases people even being in positions of such senior management and disposition of property will never declare and report their income generation!
• The legislator suggested that a specific number of persons still existing exceptions – Action Section VII (financial control) of the Act does not apply to officials of the institutions and organizations that carry out basic activities in the area:
• • social services;
• • social and professional rehabilitation of disabled and handicapped children;
• • social protection of war veterans and members of anti-terrorist operations;
• • Health (except heads of health institutions of the central, regional, district, city (cities of regional importance, the cities of Kyiv and Sevastopol) level);
• • Education (except heads of higher education institutions and their deputies);
• • Science (except president of the National Academy of Sciences of Ukraine and national specialized academies);
• • First Vice-President;
• • Vice-President and Chief Scientific Secretary of the National Academy of Sciences of Ukraine and national specialized academies;
• • other members of the National Academy of Sciences of Ukraine and the National Bureaux specialized academies, elected by the general meeting of the National Academy of Sciences of Ukraine and national specialized academies respectively;
• • heads of research institutes and other research institutions), culture, arts, restoration and preservation of national memory, physical education, sports, national and patriotic education.
Also on the time limit for filing declarations and responsibility, which is not so-called “declarant”.
As is known under Part 1 of Article 45 of the Law of Ukraine “On Prevention of Corruption” is set deadline for filing e-returns – up to 1 April. Served them through the official website for the electronic digital signature of the declarant.
And in connection with the adoption of the law was made and appropriate changes to the Law of Ukraine on Administrative Offences was particularly Chapter 13-A
“Administrative offenses connected with the corruption.” It contains 1726 article “Violation of financial controls.” Late filing of the person authorized to perform state functions or local government – entails a fine ranging from 850 to 1700 UAH.
The law provides criminal penalties, and – the signs of corruption criminal offense National Agency for Prevention of Corruption reported to NABU as special law enforcement body in the right National Agency for Prevention of Corruption attracted to administrative responsibility of the declaration, the terms of which quite a controversial procedure can be determined.
But given the substantial penalty sanction provided for in the said article of the CAO, also raises the question – “in time offense when I can bring the failure or violation of terms of e-filing declarations?”.
Haste can breathe with relief – now at the legislative level is not resolved technically possible, on automatic checking of all submitted declarations of persons exercising public functions, local authorities and persons equated to them, as in our example, the head of department of PJSC “Ukrposhta”.
It is important to indicate a criminal offense, namely under Article 3661 of the Criminal Law of Ukraine: “… Submitting entity declaration knowingly false information in the declaration of the person authorized to perform state functions or local government envisaged by the Law of Ukraine” On prevention of corruption, “or intentional failure entity declaration said the declaration … “provides a fine of 34,000 to 51,000 USD. or community service for a period of one hundred fifty to two hundred forty hours, or imprisonment for up to two years, with disqualification to hold certain positions or engage in certain activities for up to three years.
We believe that in the case of failure to submit declarations employee who is convinced that he is not an officer and subject to declaration, there is no subjective aspect of the offense. Intent failure to return need to prove, while it is appropriate to take into account the presumption of innocence when a person is deprived of the duty to prove his guilt. A few millionth uneven interpretation “cohort” of public sector workers and the Chairman of National Agency for Prevention of Corruption same law – is not evidence of criminal intent in this situation.
Consequently, given the lack of jurisprudence with appeal administrative protocols for late submission of the employees of legal entities of public law or in criminal proceedings for willful failure to submit declarations referred to workers considering controversial and not uniform legal and practical interpretation of the term “official” in the context of an employee of a legal entity of public law – we help protect the rights and interests of the employee, from the trial court and ending with the Supreme court of Ukraine!
The decisive point “who refers to the legal officers of public law should put the Grand Chamber of the Supreme Court of Ukraine, in accordance with Article 45 of the Law of Ukraine” On the Judicial System and Status of Judges “.
And in the manner prescribed by the procedural law, the highest court will have to ensure constant jurisprudence in deciding the court issues about the definition of entities declaring that must brought to justice.