Introduction. The development of Ukrainian administrative law is characterized not only by the development and adoption of legal acts, but also by the introduction into legal circulation of new categories (concepts). This is due to the dynamic development of social relations, the construction of a legal, democratic and European state, where man, his life and health, inviolability and security are recognized as the highest social value.
All this requires a review of the existing system of public administration and bringing the latter to the European one. It should be noted that the category of “public administration” can not meet the needs of the science of administrative law and law enforcement practice, as it does not cover the full range of relations arising in the implementation of public functions by public authorities in general and anti-corruption relations in particular.
The article is devoted to clarifying the terminological side of the concept of “public administration in the field of preventing and combating corruption in Ukraine.”
- Review of recent research
Many scientists, both domestic and foreign, have turned their scientific research to the problem of defining the concept, content, essence and structure of public administration. In particular, they are V. Averyanov, V. Bevzenko, A. Bukhanevich, B. Danylyshyn, O. Jafarova, N. Kamenska, T. Karabin, V. Kolpakov, T. Kravtsova, V. Malinovsky, S. Masyondz, R Melnyk, M. Mikhrovska, I. Paterylo, A. Pukhtetska, A. Solonar, A. Sungurov, Y. Fomin, S. Chernov, O. Cherchaty, and others.
However, their scientific research was not addressed to the systematic analysis of the topics declared for consideration, but concerned general or related aspects.
- Presentation of the main provisions
The analysis of the domestic legal literature shows that in recent times there have been pronounced tendencies to update the categorical apparatus of the science of administrative law. In this case, we are talking about the use of Ukrainian authors in their works such concepts as “public law”, “administrative services”, “administrative procedure”, “delegation of authority” and so on. One of such new concepts is the category of “public administration”.
This is due to the fact that the essence of the category of “public administration” and the category of “subject of public administration” do not meet the needs of today, because most scholars believe that the main subject of public administration is the executive branch. The Law of Ukraine “On Central Executive Bodies” establishes that the main purpose of executive bodies is to form and implement state policy in one or more areas. At present, at the state level, public authorities have been established and function, which, without the status of the latter, essentially perform their functions. From this we can draw an intermediate conclusion that the category “subject of public administration” in its current meaning does not cover the whole range of entities involved in the implementation of public functions of the state. Today, it is essential to find a category that unites all entities with powers in the field of public administration, and would comply with European Union law, as well as maximize the needs of law enforcement practice.
So let’s try to analyze the essence of the term “public administration” in terms of transformational substitutions of obsolete categories.
In particular, the core of the concept of “public” is “common, accessible to all, serving all.” And the word “administration”, which comes from the Latin ministrere (“serve”), indicates subordination to political power and service to the public interest.
In the general and undifferentiated version, “public administration” is, on the one hand, the implementation of public policy, and on the other – an academic discipline that prepares employees for this work. Of course, for the purposes of this study will analyze the content of the first understanding of public administration, which different authors and in different periods understand as “implementation or implementation of state policy by competent authorities”, based on the separation of policy and management, or covers all three branches of government. legislative and judicial, as well as their interaction, playing an important role in the development of public policy and, thus, are part of it.
Based on the analysis of a wide range of thematic professional sources, it is advisable to distinguish two conceptual approaches to the interpretation of the content of public administration as an organizational and legal entity: the so-called “broad” and “narrow”. Proponents of the “broad” concept of public administration usually suggest understanding the system of executive bodies, local governments, and other entities that, in accordance with the law, ensure the implementation of legislation in the public interest and are endowed with the prerogatives of public authority.
Accordingly, in a broad sense, public administration includes not only the executive and local governments, but also the general public, which by law exercise the powers delegated by the government in the field of public administration to meet certain public needs. Instead, proponents of another, “narrow” theory believe that the term “public administration” is a symbiosis: a maximum of a system of executive bodies, local self-government, a minimum of executive bodies (including executive bodies of local self-government).
Accordingly, the modern understanding of the interpretation of the term “public administration” is reduced to a set of public bodies (state and non-state), which act to ensure both the interests of the state and the interests of society as a whole. As an example, V. Averyanov considered that “public administration” is a set of bodies, institutions and organizations that perform administrative functions; administrative activities carried out by this administration in the interests of society; the scope of public sector management by the same public administration; V. Malinovsky – as a set of state and non-state subjects of public power, the key structural elements of which are the executive authorities and executive bodies of local self-government; T. Kravtsov – is a certain system of state executive bodies and executive bodies of local government, enterprises, institutions, organizations and other entities endowed with administrative and managerial functions that operate to ensure both the interests of the state and the interests of society in in general; S. Chernov – a set of state and non-state subjects of public power, the key structural elements of which are, firstly, the executive authorities and, secondly, the executive bodies of local self-government; system of public institutions and their activities.
According to R. Melnyk, the concept of “public administration” is now interpreted ambiguously in European administrative and legal doctrine. It has a broader meaning than its translation into Ukrainian of “public administration” and, accordingly, a narrowed understanding of Soviet and post-Soviet science. The term “public administration” is understood by European scholars as:
- a set of bodies, institutions and organizations that perform administrative functions;
- administrative activities carried out by this administration in the interests of society;
- the scope of public sector management by the same public administration.
In Recommendation № R(84)15 of the Committee of Ministers of the Council of Europe to member states on public liability for damage, adopted on 11 September 1984 at the 375-th meeting of the Ministers’ Deputies, public authority (public authority) is understood as:
- any public-law entity of any type or level (including the state, region, province, municipality, independent public-law entity);
- any individual in the exercise of his prerogative of official authority.
Nevertheless, the lack of legal consolidation of the interpretation of the analyzed term in the national legislation has a negative impact on its terminological essence. No less negative is the lack of the Concept of Public Administration Reform in Ukraine, because thanks to the creation of the institution of public administration, according to B. Danylyshyn, “the government should become closer to the needs and demands of citizens, and the priority of public policy should be to ensure the rights and freedoms of citizens. ». Based on this, according to the scientist, the main purpose of “developing the concept of public administration reform is to identify ways and approaches to create an effective system of public administration that will provide quality services to citizens at the level of European standards, and will be able to timely and adequately respond to socio-economic challenges. ” This understanding of the institutional principles of public administration obliges public authorities and local governments to become subjects of “serving the interests of society.”
It should be noted that since 2015, the Government and the Verkhovna Rada of Ukraine, with the active participation of Ukrainian and European experts, have laid the legal framework for reforming public administration in Ukraine, adopting a new Law on Civil Service with the necessary bylaws; Public Administration Reform Strategy of Ukraine for 2016–2020; Strategy for reforming the public financial management system for 2017-2020; The concept of introducing positions of reform specialists in ministries and other central executive bodies (CEBs); The concept of optimizing the system of central executive bodies.
Interpreting all the above material, we believe that the public administration in the field of preventing and combating corruption in Ukraine is:
- bearers of political will – the President of Ukraine, factions of political forces in the Verkhovna Rada of Ukraine, the Committee of the Verkhovna Rada of Ukraine on Prevention and Counteraction to Corruption, the Cabinet of Ministers of Ukraine, the National Council on Anti-Corruption Policy under the President of Ukraine;
- anti-corruption bodies – the National Agency of Ukraine for the Prevention of Corruption (NAPC), the National Anti-Corruption Bureau of Ukraine (NABU), the State Bureau of Investigation (DBR), the Specialized Anti-Corruption Prosecutor’s Office (SAP) and the National Agency of Ukraine for Asset Detection, Investigation and Management, obtained from corruption and other crimes (ARMA), the Supreme Anti-Corruption Court of Ukraine (SAC);
- specially authorized bodies in the field of anti-corruption – bodies of the Prosecutor’s Office and the National Police, NAPC, DBR, ARMA;
- implementers of anti-corruption policy – state bodies, their subordinate bodies which are obliged to implement a specific anti-corruption measure; private sector enterprises, as well as individual citizens or their associations – by consent;
- formators of anti-corruption policy – NAPC and the Cabinet of Ministers of Ukraine;
- entities involved in the process of anti-corruption policy formation – National Council for Anti-Corruption Policy under the President of Ukraine, Ministry of Justice of Ukraine, NAPC, DBR, ARMA, Government Commissioner for Anti-Corruption Policy, European Union Anti-Corruption Initiative in Ukraine, Ministry of Foreign Affairs Denmark, UNDP, Transparency International Ukraine, EIDOS (Center for Political Studies and Analytics), International Renaissance Foundation, and others;
- participants in anti-corruption programs – Ministry of Health of Ukraine, Ministry of Energy and Environmental Protection of Ukraine, Ministry of Justice of Ukraine, Ministry of Finance of Ukraine, Ministry of Social Policy of Ukraine, Ministry of Internal Affairs of Ukraine, Ministry of Education and Science of Ukraine, Ministry of Culture, Youth and Sports Of Ukraine, Ministry of Economic Development, Trade and Agriculture of Ukraine, Ministry and Committee for Digital Transformation of Ukraine, State Property Fund of Ukraine, State Audit Office of Ukraine, State Service of Ukraine for Transport Safety, State Aviation Service of Ukraine, State Service of Ukraine for Geodesy, Cartography and cadastre;
- citizens and associations of citizens – Public Human Rights Organization “Human Rights”, Center for Political and Legal Reforms, Transparency International Ukraine, Center for Political Studies and Analytics “Eidos”, Center for Combating Corruption, Group “Anti-Corruption Reform” of the Resuscitation Reform Package, and others;
- International independent experts and organizations – Carlos Castresana, Giovanni Kessler, USAID, Transparency International, and others.
All of the above makes it possible to formulate a conclusion that the public administration in the field of preventing and combating corruption in Ukraine is a holistic legal symbiotic-interdependent entity, which has a clearly distributed function between the subjects of its structure.
Accordingly, its structure consists of:
- public authorities, their structural subdivisions and their delegated representatives;
- individuals and public structures;
- representatives of international institutions.