THE EFFECTIVENESS OF MONITORING LIFESTYLE AND CHECKING THE E-DECLARATIONS OF DECLARATIVE ENTITIES

Andrey Prikhodko took part in the International Scientific and Practical Conference «Actual Problems of Legal Policy of Ukraine in the Conditions of European Integration», which was held on March 31 - April 1, 2017 on the basis of the Odessa National Maritime University.

Managing Partner of «PRIKHODKO & PARTNERS» stressed that in accordance with Art. 51 of the Law of Ukraine "On the Prevention of Corruption", the National Agency for the Prevention of Corruption (hereinafter - NAC) performs selective monitoring of the way of life of the subjects of declaration in order to establish the conformity of their standard of living with the property and their income received from them and their family members according to the declaration of the person authorized To perform the functions of the state or local self-government shall be submitted in accordance with this Law. The monitoring of the way of life of the subjects of the declaration is carried out by the NAC on the basis of information received from individuals and legal entities, as well as from the mass media and other open sources of information containing information on the discrepancy between the level of the subjects of declaring property and income declared by them. Lifestyle monitoring is carried out in compliance with the legislation on the protection of personal data and should not involve excessive interference with the right to inviolability of personal and family life of a person.

Analysis of the norms of the Law of Ukraine «On the Prevention of Corruption» makes it possible to say that the purpose of this law is the creation of conditions for the subjects of declaration, under which everyone who, according to the law is required to declare their income, will be a standard of living that will fully correspond to his official income.

The analysis of methods aimed at achieving this goal is set out in the Procedure for carrying out inspections of the Name and Order of monitoring and full verification of the declaration of the person authorized to perform the functions of the state or local government gives the opportunity to talk about the main shortcomings, will not allow to fully achieve the goal of the Law of Ukraine «On Prevention Corruption».

The method of implementation of the verification of the declaration, which is set out in item 2-4 of the Procedure for Conducting Control and Full Verification of the Declaration of the Person Authorized to Perform the Functions of the State or Local Government, provides that the full verification of the declaration includes the following actions:

• analysis of information about the objects of declaration (real estate objects, objects of unfinished construction (including information about the owner or user of the land plot), valuable movable property (other than vehicles), valuable movable property - vehicles, securities, other corporate rights, legal entities , The ultimate beneficiary owner (controller) of which is the subject of declaration or members of his family, intangible assets, income, including gifts, monetary assets, financial obligations The costs and transactions of the declaring entity, the position or work of the declaring partner, the membership of the declaring entity in the associations (organizations) and entering into their bodies) indicated in the declarations of the declaring entity and their comparison with data from registers, databases, other information - telecommunication systems of state bodies, authorities of the Autonomous Republic of Crimea, local self-government bodies, may contain information on the objects of declaration, which should be reflected in the decree Aeration;
• creation, collection, receipt, use of information necessary for full verification of the declaration using the information sources defined in clauses 8-11 of this section;
• sending a letter to the relevant subject of declaration with the proposals to provide written explanations and / or copies of supporting documents and consideration and accounting of the explanations and / or copies of supporting documents provided by the national agency to the relevant declaring entity when conducting a full verification of the declaration in the manner and under the conditions specified in paragraph 12 of this section.

An analysis of the foregoing shows that the verification procedure is to perform a logical and arithmetical analysis of information recorded in the declaration and information contained in other databases and, in case of inconsistency, send a letter to the declaring entity and receive an explanation of the detected discrepancy.

This method does not in any way guarantee that the actual standard of living of the declaring entity corresponds to the information that is entered in the database, including the E-declaration.

For example, an official uses a car that is not declared. Checking the information will show that the car is owned by another person who is not a subject of declaration. In explanations, the declaring person will indicate that he used a car.

Likewise with housing. For example, the declaring entity notes that it rents an apartment, while the rent does not exceed the amount of official income. However, the actual rent is much larger, and there is an agreement between the tenant and the declaring entity, about payment by installments (part officially, but not part). Provided by the entity declaring the explanation, will not correspond to reality, while excluding the grounds for bringing the latter to justice.

Achieving this goal is possible only by conducting tests of the actual level.

The procedure for conducting inspections in the NACP is approved, however, in accordance with clause 3 of the said Procedure, the objects of verification are state bodies, authorities of the subjects of the Russian Federation, local self-government bodies, legal entities, including political parties.

The specified Procedure does not apply to all subjects of the declaration, that is, the NAC does not have the right to carry out checks of the state official for his place of residence.

On the one hand, this is logical, because Art. 30 The Constitution of Ukraine guarantees everyone the inviolability of housing, stating that it is not allowed to enter the home or other possession of a person, to conduct an inspection or search there except by a reasoned court decision.

However, Art. 233 of the Code of Criminal Procedure of Ukraine, notes that no one has the right to enter the home or other possessions of a person for any purpose, otherwise as soon as the person voluntarily agrees, owns them.

That is, penetration into the dwelling and carrying out its inspection in order to establish the conformity of its value to the declared data may not contradict the laws of Ukraine if there is a voluntary consent of the person.

A person entering the civil service, and therefore becoming a subject of declaration, should realize that the way of life from the moment of admission to the civil service must be fully consistent with the official income received by the wage or other declared source.

In this connection, the way of life should be open for Nazk and other law-enforcing subjects of monitoring the way of life.

Thus, we believe that each person acquiring the status of a subject of declaration must provide written consent for penetration into her housing in order to verify the person's way and level of living with the information she declares.

The presence of such consent does not violate the rights of citizens guaranteed by the Constitution and will allow to legally inspect housing and other property for compliance with their information contained in declarations.

The fact that the entity does not provide access to housing, subject to a written consent for penetration and inspection of housing, must be formalized by an appropriate act with video recording and be a direct basis for releasing the declaring entity.

At the same time, a person realizing the possibility of such a check and its consequences (disciplinary, administrative, criminal responsibility) will not allow himself to declare untrue information or refuse from civil service.

Under such conditions, the basic idea of preventing corruption - full and objective declarations, as well as the absence of any unofficial income of the subjects of declaration, has the right to exist.