ARE THE NATIONAL CORRUPTION PROTOCOLS OF LEGAL CORRUPTION
The most important role in the fight against corruption is played by the Economy Protection Department of the National Police of Ukraine: more than one decision has been issued on the basis of administrative offense protocols. Let’s try to figure out if this happens according to law.
Yes, indeed, according to Part 1 of Art. 1 of the Law of Ukraine “On Prevention of Corruption” specially authorized entities in the field of corruption are prosecutors, National Police, National Anti-Corruption Bureau of Ukraine, National Agency for Prevention of Corruption.
According to Art. 255 Code of Administrative Offenses of Internal Affairs (National Police) have the right to draw up reports on administrative offense under Art. 172-4 – 172-9, 172-9-2 of the Administrative Code, which are related to the so-called administrative offenses related to corruption.
According to paragraph 3 of Part 2 of the IV Regulations on the Department of Economics of the National Police of Ukraine, approved by the order of the National Police of Ukraine №81 from 07.11.2015, Department employees have the right to draw up administrative reports on detected facts of violation of anti-corruption legislation and to send them to court.
But there is one caveat – the right to inspect compliance with anti-corruption legislation The Department of Economics of the National Police of Ukraine is not vested.
Administrative misconduct materials may include guidance on the need to provide documents as part of an audit or reports that confirm authorization to draw up protocols after a so-called audit. But it is worth paying attention to the reasons for drawing up the protocol, how and by whom the violations of anti-corruption legislation were detected.
According to Part 1 of Art. 4 of the Law of Ukraine “On Prevention of Corruption” The National Agency for the Prevention of Corruption (hereinafter referred to as “NACC”) is a central executive body with a special status that ensures the formation and implementation of the state anti-corruption policy.
According to paragraph 6 of Part 1 of Art. 12 of the Law of Ukraine “On Prevention of Corruption” The National Agency for the purpose of fulfilling its powers has the following rights: to receive statements of individuals and legal entities about violations of the requirements of this Law, to conduct on its own initiative to check possible facts of violations of the requirements of this Law.
Therefore, by a special law governing the prevention of corruption, the right to inspect compliance with anti-corruption legislation rests solely with the NAPC and not with other specially authorized entities in the field of combating corruption.
In accordance with Part 1 of Article 8, Paragraphs 8-1, Part 1 of Article 11, Paragraphs 5, 6 and 7 of Part 1 of Article 12 of the Law of Ukraine “On Corruption Prevention”, for the purpose of realization by the National Agency on Corruption Prevention of its powers to conduct compliance checks requirements of the Laws of Ukraine “On Prevention of Corruption” and “On Political Parties in Ukraine” The National Agency for the Prevention of Corruption has adopted the decision # 2 of 11.08.2016, which approved the Procedure for conducting inspections by the National Agency for Corruption ь prevention of corruption (hereinafter – the Procedure for conducting inspections).
Pursuant to paragraph 1 of the V of the Procedure of conducting inspections, the results of the conducted audit shall constitute an act of planned (unscheduled) verification of compliance with the requirements of the Law of Ukraine “On Prevention of Corruption”.
Pursuant to Item 1, 2, VI of the Verification Procedure, the act of verification with the draft decision provided for in paragraph 9 of Section V of this Procedure, and the materials confirming the facts of the offense, shall be submitted to the nearest meeting of the National Agency. As a result of the review, the National Agency may decide on:
– making an order;
– sending a conclusion on the presence of signs of corruption or corruption-related offense to specially authorized entities in the field of combating corruption;
– submission of a report on an administrative offense and attached materials to court;
– appeal to the court with a claim (statement) for the recognition of illegal normative legal acts, individual decisions issued (adopted) in violation of the requirements and restrictions established by the Law of Ukraine “On the Prevention of Corruption”, the recognition of invalid acts concluded as a result of corruption or related corruption offenses;
– Appeal to the court to establish the relevant facts, which show that the funds allocated from the state budget for financing the statutory activities of a political party are used by a political party to finance its participation in the relevant elections or for non-implementation purposes its statutory activities in accordance with the Law of Ukraine “On Political Parties in Ukraine”.
That is, only after conducting a NAPC review and sending a NAPC opinion to specially authorized entities in the field of corruption (including the National Police), the latter have the authority to draw up an administrative offense protocol.
At the same time, in case of violation of the sequence of such actions (drafting a protocol without the conclusion of the NAPC), it is worth pointing out the decision of the European Court of Human Rights in the case of Yaremenko v. Ukraine, which stated the following:
In addition, the quality of such evidence and, in particular, whether the circumstances under which it was obtained give rise to any doubt as to their veracity and accuracy… ”.
Among other things, the European Court of Human Rights applies the concept of “the fruits of the poisoned tree” to the adjudication of a fair trial, that is, the admissibility of the whole chain of evidence, one after the other, rather than each individual piece of evidence. However, the European Court of Human Rights assumes that if one piece of evidence is admissible in a single chain, the court should in such a case decide the fairness of the trial as a whole, an example being the Khan v. The United Kingdom, Yaremenko cases v. Ukraine (No.2) ».
In the same situation (drafting a protocol without the conclusion of the NAPC), the protocols, being the evidence, cannot be admissible proof, since obtained in violation of the procedure – in the absence of the NAPP’s conclusion and the lack of authority to independently check compliance with anti-corruption legislation.
Author: Ivan Ischuk