Not the least role in the fight against corruption is played by the Department of Economic Protection of the National Police of Ukraine: on the basis of protocols on administrative offenses, more than one resolution was issued. Let’s try to understand whether this is in accordance with the 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 anti-corruption – the prosecutor’s office, the National Police, the National Anti-Corruption Bureau of Ukraine, the National Agency for Prevention of Corruption.
According to Art. 255 of the Code of Administrative Offenses, the bodies of internal affairs (National Police) have the right to draw up protocols on administrative offenses under Art. 172-4 – 172-9, 172-9-2 of the Code of Administrative Offenses, which are classified as so-called administrative offenses related to corruption.
According to paragraph 3 part 2 of the IV Regulation on the Department of Economic Protection of the National Police of Ukraine, approved by the order of the National Police of Ukraine №81 of 07.11.2015, employees of the Department have the right to draw up administrative reports on violations of anti-corruption legislation and send them to court.
But there is one nuance – the Department of Economic Protection of the National Police of Ukraine does not have the right to conduct inspections of compliance with anti-corruption legislation.
Materials on administrative offenses may contain instructions on the need to provide documents in the framework of the inspection or reports confirming the permission to draw up protocols after the so-called inspection. But it is worth paying attention to the grounds for drawing up the report, how and by whom the violation of anti-corruption legislation was detected.
In accordance with Part 1 of Art. 4 of the Law of Ukraine “On Prevention of Corruption” The National Agency for the Prevention of Corruption (hereinafter – NAPC) is a central executive body with a special status, which ensures the formation and implementation of state anti-corruption policy.
According to item 6 of h. 1 Art. 12 of the Law of Ukraine “On Prevention of Corruption” National Agency in order to fulfill its powers has the following rights: to receive applications from individuals and legal entities for violations of this Law, to conduct on its own initiative to verify possible violations of this Law.
Thus, by a special law regulating the prevention of corruption, the right to conduct inspections of compliance with the legislation on the prevention of corruption belongs exclusively to the NAPC, and not to other specially authorized entities in the field of anti-corruption.
In accordance with the first part of Article 8, paragraph 8-1 of the first part of Article 11, paragraphs 5, 6 and 7 of the first part of Article 12 of the Law of Ukraine “On Prevention of Corruption”, in order to implement the National Agency for Laws of Ukraine “on prevention of corruption” and “on political parties in Ukraine” National agency for prevention of corruption decided №2 from 11.08.2016 year, which approved the procedure of inspection by the National agency for the prevention of corruption (hereinafter – Procedure inspection) .
In accordance with paragraph 1 of Article V of the Procedure for conducting inspections, based on the results of the inspection, an act of scheduled (unscheduled) inspection of compliance with the Law of Ukraine “On Prevention of Corruption” is drawn up.
According to paragraphs 1, 2, VI of the Procedure for inspections, the inspection report with the draft decision provided for in paragraph 9 of section V of this Procedure, and materials confirming the facts of offenses are submitted to the next meeting of the National Agency. Based on the results of the review, the National Agency may decide on:
– making an order;
– sending an opinion on the presence of signs of a corruption offense or an offense related to corruption, to specially authorized entities in the field of anti-corruption;
– sending a report on an administrative offense and attached materials to the court;
– appeal to the court with a claim (application) to declare illegal regulations, individual decisions issued (adopted) in violation of the Law of Ukraine “On Prevention of Corruption” requirements and restrictions, invalidation of transactions concluded as a result of corruption or related with corruption offenses;
– appeal to the court to establish the relevant facts that indicate that the funds allocated from the state budget to finance the statutory activities of a political party, used by a political party to finance its participation in the relevant elections or for purposes not related to its statutory activities in accordance with the Law of Ukraine “On Political Parties in Ukraine”.
That is, only after the NAPC inspection and sending the NAPC opinion to the specially authorized entities in the field of anti-corruption (including the National Police), the latter have the authority to draw up a report on an administrative offense.
At the same time, in case of violation of the sequence of such actions (drawing up a report without the conclusion of the NAPC) it is necessary to point to the decision of the European Court of Human Rights in the case “Yaremenko v. Ukraine”, which stated:
In addition, the quality of such evidence must be taken into account and, in particular, whether the circumstances under which it was obtained give rise to any doubt as to its veracity and accuracy….
Among other things, the European Court of Human Rights, in deciding on a fair trial, applies the concept of “poisoned tree fruit”, ie the assessment of the admissibility of the whole chain of evidence, based one after another, and not each individual piece of evidence autonomously. Nevertheless, the European Court of Human Rights assumes that if one piece of evidence is inadmissible in a single chain, the court must in such a case decide on the fairness of the trial as a whole, an example of which is the case in Khan v. The United Kingdom, Yaremenko. against Ukraine (№2) ».
In the same situation (drawing up a report without an NAPC opinion), the protocols, being evidence, cannot be admissible evidence, as they were obtained in violation of the procedure – in the absence of NAPC opinion and lack of authority to independently verify compliance with anti-corruption legislation.