Anti-Corruption Declaration as a Measure of Control for the Activities of Subjects of Public Authorities

Journal of Environmental Treatment Techniques

2020, Volume 8, Issue 4, Pages: 1504-1509

J. Environ. Treat. Tech.

ISSN: 2309-1185

Journal web link: http://www.jett.dormaj.com

https://doi.org/10.47277/JETT/1509

Anti-Corruption Declaration as a Measure of

Control for the Activities of Subjects of Public

Authorities

1,3

Liudmila Kornuta , Tetiana Goloyadova , Yuliia Zavhorodnia , Yurii Reva

Department of Administrative and Financial Law, National University “Odesa Law Academy”, Odessa, Ukraine

Department of Political Theories, National University “Odesa Law Academy”, Odessa, Ukraine

Directorate for Strategic Planning and European Integration of the Ministry of Justice of Ukraine, Kyiv, Ukraine

Received: 18/06/2019

Accepted: 27/09/2020

Published: 20/12/2020

Abstract

The article is devoted to the study of anti-corruption declaration in Ukraine, which is at the stage of institutionalization and practical

improvement. The aim of the article is to establish possible ways to increase the effectiveness of the anti-corruption declaration

mechanism, taking into account socio-economic conditions based on the use of international experience in this process; to define a single

concept of the humanization of the financial control and identify specific recommendations for reforming the existing system of anti-

corruption mechanism in Ukraine. In carrying out this study, general and special methods of scientific knowledge were used: the system

analysis method, the dialectic method, the formal logical method and the structural-functional method, as well as a number of empirical

methods. The authors came to the conclusion that the mechanism of anti-corruption declaration in Ukraine was formed taking into

account the socio-economic prerequisites for counteracting corruption and international trends in the implementation of financial control.

To increase the positive effect of the introduction of anti-corruption declaration, it is important to know the approach chosen for

exercising financial control over the subjects of public administration. The article may be useful for the relevant subjects of public

administration for the further improvement of socially sensitive anti-corruption tools. It may also be useful for researchers of social and

legal processes related to the development of civil society. An analysis of the processes of management transformation in the country

and in the world facilitated to identify problems that require special attention and find solutions for the implementation of project

activities to create a modern management structure for electronic filing of declarations. The novelty and originality of the study lies in

the fact that the article reveals the fundamental determinants of anti-corruption declaration taking into account the development trends

of public administration.

Keywords: Corruption, Humanization, Anti-corruption declaration, Subject of public authority, Financial control, International

standards

The state anti-corruption policy of Ukraine should be aimed

Introduction

at creating and organizing an effective system not only for

identifying prerequisites, preventing, counteracting, but also

eliminating the consequences of corruption acts, promoting the

identification of corruption acts in the behaviour and life of

persons who are subject to the obligation of financial control.

One of the ways to identify and prevent corruption is financial

control, which is implemented through anti-corruption

declaration, including. Under anti-corruption declaration it is

understood a method of checking the integrity of persons

authorized to fulfill the functions of the state and local self-

government. In this case, it is necessary to use a broad

interpretation of the declaration, based solely on the purpose of

its use in the fight against corruption. Therefore, such a feature

of declaration as an electronic nature is not basic. It is the

designation of the choice of submitting a declaration – via

electronic form. At the same time, this feature is inherent in

declaring as a method of financial control in Ukraine. Only in

Corruption as a system of negative relations has become

one of the most acute problems in the modern society, not only

because it is evidence of the degradation of the moral

foundations of society, but also because it entails negative

consequences for the development of most areas of the

management, economics and industry. The fight against

corruption must be carried out simultaneously through the

prevention and enforcement. Both elements are complementary

and interchangeable. The state’s policy on preventing and

combating corruption is aimed at ensuring the spread of

intolerance to corruption in society, creating conditions under

which social partnership between the state and the population

will develop, possibly through the use of consistent, planned

and coordinated actions, since systemic phenomena require a

systematic approach to overcome them [1]. The lack of

consistency in the actions of the authorities to implement the

anti-corruption policy has become one of the reasons for the

improper implementation of the National Anti-Corruption

Strategy for 2011-2015 as the main program document in the

anti-corruption field [2].

995, with the adoption of the first Law of Ukraine “On

Combating Corruption”, the declarationwas institutionalized as

an instrument of financial control, but exclusively for persons

authorized to fulfill state functions. In addition, information on

Corresponding author: Liudmila Kornuta, Department of Administrative and Financial Law, National University “Odesa Law

Academy”, Odessa, Ukraine. E-mail: kornuta02@gmail.com

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income, securities, real estate and valuable property and

deposits in the banks of officials and members of their families

began to undergo annual publication in official publications of

state bodies of Ukraine [3]. Further, the declaration procedure

was determined by the Resolution of the Cabinet of Ministers

of Ukraine of August 11, 1995 № 641 “On the application of

Article 13 of the Law of Ukraine“On State Service”. On the

positive side, the declaration requirement concerned both

persons holding state service positions and those applying for

it. The data in the declarations concerned income, financial

liabilities, property owned. However, all the information

contained in the declarations was confidential.

Results and Discussions

.1 Anti-Corruption Declaration as an Anti-Corruption

Measure

The origins of corruption are laid in the negative features

of human behaviour, which give rise to establish a special

system of connections and relations in order to obtain and

distribute illegal income. For this purpose, both gaps in the

legislation that provoke the spontaneous appearance of

normatively unregulated additional activities, as well as direct

violations of existing norms and rules are used. Such a system

consists regardless of the degree of the development of the

society and the economic relations. From the point of view of

the interests of the society, the question is only in the scale of

this phenomenon. Upon reaching a certain valuethe level of

corruption, which is measured by the degree of public

confidence in the authority, the society actually remains

without effective management. Thus, there is a real threat to the

existence of society itself and the fight against corruption is

considered one of the priority tasks of a significant number of

states.

Anyone with discretionary power – the power, at its

discretion, to allocate certain resources that do not belong to it,

can be exposed to corruption. At the same time, the main

incentive for corruption is the possibility of obtaining economic

profits (benefits) connected with the use of authoritative

powers, and the main limiting factor is the risk of exposure and

punishment. Economic factors of corruption at the level of

social prerequisites are connected with the economic crisis,

which led to the deformation of socio-economic relations and

caused severe economic consequences for Ukrainian society,

the state and the vast majority of citizens. Property inequality

and lack of effective control in the distribution of income,

poverty, unemployment, outflow of productive forces abroad,

and many other economic problems of modern Ukraine have

led to an increase in the number of offenses, including

corruption.

Despite a common goal, the prevention of corruption has a

different manifestation, tools and methods, depending on the

direction of the public sector or the private one. In the

framework of this study, it is advisable to pay attention to the

prevention of corruption in the public sector, which can be

defined as the totality of public relations arising from the

nonadmission, prevention and assistance in identifying the

signs of corruption and the violations of anti-corruption

requirements, prohibitions, restrictions in the performance of

the functions of the state or local government. It is worth to

mark out that effective corruption counteraction requires a

systematic approach and the use of integrated measures,

including scientific, strategy and tactics of counteraction.

Corruption in Ukraine over the entire existence of an

independent state has become perhaps the most important

problem in social and state development, it has a deforming

effect on the system of public administration, ensuring the

welfare of the population, the development of national capital,

etc. In this regard, the state takes active measures of

counteraction and prevention of the corruption. This is

primarily reflected in the adoption of the Law of Ukraine “On

Prevention of Corruption”, the introduction of anti-corruption

programs (state and departmental), the aggravation of criminal

liability for corruption crimes, the creationof specialized anti-

corruption bodies – the National Agency for the Prevention of

Corruption, the National Anti-Corruption Bureau, Specialized

anti-corruption prosecutors and the like.

Separately, it should be noted that the declarant’s failure to

submit or provision of incomplete or false information about

income,

financial liabilities

andproperty condition

automatically turned into a basis for the termination of state

service, as well as bringing to administrative responsibility. The

need to reassess anti-corruption declaration is mediated by the

introduction of innovative technology for electronic filing of

declarations, on the one hand, and the introduction of public

administration, on the other, as it is planned to develop a new

style of resource provision of public authorities with highly

professional servants who act exclusively to protect public

interests.

Methodological Framework

The issues of anti-corruption declaration in Ukraine are

relevant, however, there is currently no comprehensive study,

firstly, of assessing the influence of socio-economic factors of

corruption on the choice of the concept of anti-corruption, and,

secondly, of determining the further development of financial

control mechanisms.

In the research process, the following methods were used:

theoretical, empirical, structural and system analysis, statistical

and economic methods, expert assessment methods, general

scientific methodology. Theoretical methods (analysis,

synthesis) made it possible to identify the institutional and legal

foundations of the anti-corruption declaration, to consider the

selected approaches to financial control in their unity, to present

the factor basis for combating corruption in Ukraine. Empirical

methods have created the basis for the development of a set of

measures for the development of electronic anti-corruption

declaration.

The key to identifying trends in the institutionalization of

anti-corruption declarations is the identification of corruption

risks and their elimination. From this position, a formal

dogmatic approach was used, in which thelaw-governed state

does not oppose the civil society, but creates favourable

conditions for its normal functioning and development, while

exercising financial control over the activities of public

authorities using various methods. Despite the obvious

relevance of the real, rather than the formal significance of the

declaration, it should be recognized that domestic scientists

resort only to fragmented studies of these issues. At the same

time, it is insufficient to study the existing world practices of

financial control.

In this article the issues of anti-corruption declaration as a

systemic tool to combat corruption in Ukraineare first

investigated. For consistent coverage of the problem,

substantive blocks have been identified characterizing a

homogeneous group of public relations, which concern the

definition of the essence of anti-corruption declaration, namely:

the definition of corruption as a measure of corruption

counteraction, the institutional and legal framework of anti-

corruption declaration, international standards and foreign

experience in financial control over the functioning of public

authorities.

In general, the anti-corruption mechanism includes a set of

restrictions and obligations for public servants who collectively

create a primary frontier of corruption prevention, which is

appealed to preventively protect society from corruption

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offenses. Its immediate goal is not to bring to the criminal

liability, but to prevent the occurrence of corruption (unlawful

communication with individuals, material or moral

dependenceof public servant, etc.) [4]. Anti-corruption

declaration arises basing on the provisions of the LawOf

Ukraine “On Prevention of Corruption”, and is one of the

means of financial control implementationin relation to persons

authorized to perform functions of thestate or local self-

government, along with monitoring the lifestyle of

subjectsdeclarations and additional measures of financial

control [5]. The introduction of anti-corruption declaration not

only contributes to the fight against corruption, but also

increases the level of public confidence in law enforcement

bodies. The population must be sure that they competently and

honestly carry out their activities in accordance with the

requirements of the law. It should be noted that the use of anti-

corruption declaration contributes to the achievement of the

following main goals: increasing the level of transparency of

law enforcement agencies and the trust of citizens; prevention

of conflict of interest and its settlement in case of occurrence,

which allows to ensure a high level of good behaviour of a law

enforcement officer; controlling the changes in the assets of

certain law enforcement officers in order to prevent them from

committing certain unlawful corruption actions, which, in turn,

will protect them from unfounded accusations and revealing the

facts of illegal enrichment, other unlawful activities by

providing relevant supporting documents and other evidence.

following criteria: depending on the subject of declaration,

depending on the object of declaration, depending on the

frequency of declaration. Based on the fact that anti-corruption

declaration is a means of financial control, which belongs to the

mechanism of prevention and counteraction to corruption, the

subjects providing anti-corruption declaration belong to the

system of subjects of counteraction to corruption. At the same

time, the peculiarity of the system of subjects of anti-corruption

declaration is that the same subject will be both the one that

provides the possibility of anti-corruption declaration and the

subject that is obliged to submit a declaration of persons

authorized to perform state and local self-government

functions.

The object of anti-corruption declaration is the income and

property of the subjects who are authorized to perform the

functions of the state and local self-government. There is no

body that is authorized exclusively to administer anti-

corruption declarations, but there is a multi-purpose body – the

National Agency for Prevention of Corruption, which is

responsible for ensuring the formation and implementation of

state anti-corruption policy. It is advisable to classify subjects

that ensure the implementation of anti-corruption declarations,

depending on their functional purpose in this area, into: 1)

subjects authorized to establish the legal framework for the

implementation of anti-corruption declarations (Verkhovna

Rada of Ukraine, President of Ukraine, National Council for

Anti-Corruption Policy, Cabinet of Ministers of Ukraine); 2)

subjects authorized to control the timely submission of

declarations of persons authorized to perform the functions of

the state and local self-government (National Agency for

Prevention of Corruption, authorized units (authorized persons)

for the prevention and detection of corruption, internal control

unit of the National Agency [5, 8]; 3) subjects authorized to

exercise control over the correctness and completeness of

filling out declarations, logical and arithmetic control (National

Agency for the Prevention of Corruption).

Public control over activities related to anti-corruption

declaration is carried out through the Public Council under the

National Agency, which is established and formed by the

Cabinet of Ministers of Ukraine of 15 people based on the

results of the competition. In addition, to especially

unauthorized entities that have the ability to control the

contents of declarations through open access to their contents,

the civil society institutions and individual citizens are usually

included. Formally, civil society institutions include: public

associations, trade unions and their associations, creative

unions, organizations of employers and their associations,

charitable and religious organizations, bodies of self-

organization of the population, non-governmental media and

other non-entrepreneurial societies and institutions legalized in

accordance with the law [9].

.2 Institutional and Legal Foundations of Anti-Corruption

Declaration in Ukraine

With the change in approaches to public service, the

approach to anti-corruption activities has also changed.

Accordingly, in the Law of Ukraine “On the Principles of

Prevention and Combating Corruption” of 2011 for the first

time it was defined the subject of declaration as a person who

is obliged to file a declaration of property, income, expenses

and financial obligations; declarations are subject to disclosure,

and disciplinary liability may be applied for violation of the

declaration requirements [6]. Since 2014, the anti-corruption

declaration has changed: the entities responsible for declaring

also include those charged with local self-government

functions, the way of submitting the declaration has also

changed – by completing the declaration on the official website

of the National Agency [5]. In Ukraine, a system of anti-

corruption declaration has been selected, which is characterized

by the following features: 1) the object of the declaration is

illegal enrichment, which is manifested in information about

the financial position of the declaration; 2) the declaration form

is possible both electronic and paper; 3) the declaration system

is the same for all branches of government; 4) the fundamentals

of the legal regulation of public relations, which are associated

with anti-corruption declarations, are defined by the legislation

on state service and a separate anti-corruption law governing

the common sphere of preventing corruption; 5) declarations

whose persons are authorized to perform the functions of the

state and local self-government are in the public domain; and

3.3 International Standards of Financial Control over the

Functioning of Public Authority

The role of financial control as an anti-corruption measure

has increased since the 1990s, when the UN Resolution “On

Practical Measures to Combat Corruption” was adopted,

emphasizing the importance of introducing anti-corruption

measures. At the same time, there has been more than just the

spread of declarations in transition countrieseconomy, but also

the emergence of mainly recommended for this international

standards [10].

One of the first international instruments to make the anti-

corruption declaration mandatory is the Inter-American

Convention against Corruption, adopted in 1996. In this

document, corruption is defined as a factor that undermines the

legitimacy of public institutions and strikes at society, its moral

) the declaration is characterized by an external type of

institutional support for the declaration through the functioning

of specialized anti-corruption bodies.

To introduce innovations regarding the declaration into

practical activities, a transitional period was established for the

start of the electronic declaration system. The system for filing

and publishing declarations of persons authorized to perform

the functions of the state or local self-government, began its

work in two stages [7]. Regarding the allocation of types of

electronic anti-corruption declaration under the legislation of

Ukraine, the gradation can be carried out on the basis of the

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foundations and justice, as well as the comprehensive

development of people. In overcoming the corruption, Member

States are encouraged to implement preventive measures. One

such measure is the introduction of a system for recording the

profits, assets and obligations of persons holding public office

in certain positions, as required by law, and, where appropriate,

making such cases public [11].

The rules on declaration are in fact duplicated in the

International Code of Conduct for Public Officials. The

declaration requirement is worded as follows: “public officials,

in accordance with their official position and, as permitted or

required by the law and administrative regulations, comply

with the requirements to disclose or communicate information

on personal assets and liabilities and, where possible,

information on assets and liabilities of the spouse and / or

dependents”. That is, there is a requirement to declare the

income of the spouse and / or dependents, which is a

progressive step in the field of declaration [12].

An important step towards the implementation of the

declaration was the adoption of the Lima Convention in 1997.

This international document expanded the requirements for

civil servants, so it is proposed to introduce a system of income

declarations for elected officials (and their families) and oblige

them to explain income growth exceeding legal sources of

income. In addition, it is necessary to introduce temporary or

permanent control of the income and expenditure of decision-

makers in the public sector (as well as their families and

colleagues) with the help of an independent agency, where it is

possible [13].

It was during this period that, along with paper declarations,

electronic ones began to exist. The OECD study showed that

countries in which declarations began to be accepted not in

paper form, but in electronic form, as a result received an

increase in the reliability of the data provided on average from

state, state structure, level of development of the management

system, the intensity of involvement of civil society institutions

in public administration, archetypes of socio-cultural

development and the like. It is impossible to consider the

practice of declaring each individual state, since this should be

the subject of a separate scientific study. Moreover, there will

be no tangible effect for the purposes of this study. Therefore,

it is advisable to focus on the main approaches to declaring,

their positive and negative characteristics and highlighting the

experience, which is useful for the Ukrainian state. The anti-

corruption declaration system as a tool to prevent corruption

within the framework of a single anti-corruption regime differs

depending on the object: 1) declaration of a conflict of interest;

2) declaration of property status; and 3) declaration of a conflict

of interest and property status.

In the first case, the main purpose of the declaration is

preventive, while in others it is both preventive and punitive.

The conflict of interest exists when a public servant can use his

official position for personal gain or for the benefit of other

private individuals, but does not have to. In other words,

identifying a potential conflict of interest is not an indicator of

inappropriate behaviour, but rather a warning of its potential. A

declaration system of conflict of interest operates to identify

potential or actual conflicts before they occur. In general, the

conflict of interest declaration system has been used in the

practice of preventing corruption in states such as Argentina,

Croatia, China, the USA, etc. [17]. In declaration systems that

focus on identifying and preventing illicit enrichment,

declarations are designed to collect information that will allow

to control the information about official wealth to identify any

unusual assets or income that are not related to wages or any

other legitimate source of income. This is important in

countries where the perception of corruption and impunity is

high. The main corruption actions, which are usually associated

with illicit enrichment, are bribery and embezzlement. To

identify and bring to criminal liability both types of crimes,

many jurisdictions decided to use a declaration system that

focuses on detecting illicit enrichment by monitoring and

declaring significant changes in the property status of state

servants that cannot be explained legally. To be effective, the

illicit enrichment declaration system must pose a real threat of

detection. Therefore, an important aspect of functioning is the

ability to verify declarations through agencies investigating

internal affairs, civil society institutions (if declarations are

published), cross-checking of the declaration income

statements and assets (tax and banking information, registers of

vehicles and real estate, etc., cross-checking differences

between the chosen lifestyle and actual income, etc.) [18-19].

For example, in Turkey, the content of the declaration focuses

on unexplained variations of wealth, sources of income,

investment and liabilities, as well as property data. In addition,

the system of declaring property status is used in Indonesia,

Guatemala, Mongolia [20].

7% to 98% in the first two years. Currently, more than 100

countries around the world have electronic declaration systems,

which has occurred due to the promotion of this phenomenon

by the United Nations and western countries.

In 2000, the EU Council adopted a recommendation on

codes of conduct for state servants. The specified international

document defines the obligation to submit declarations by

persons holding positions in the state service. The purpose of

the declaration is defined as control over the conflict of

interests, and not the issue of unjust enrichment [14]. The

turning point in the declaration as a form of financial control in

the field of anti-corruption was marked by the adoption of the

UN Convention against Corruption in 2003, which uses a

broader approach to the interpretation of financial control and

the persons to whom it is applied, which will be discussed in

the following parts of this study [15]. It appears that the

convention defines a flexible declaration mechanism, which is

detailed in the Technical Guide to the UN Convention. General

provisions on declaring can be defined as follows:

promulgation should cover all significant types of income and

assets of officials; a disclosure form should create the

conditions for the possibility of comparing the financial

situation of officials in chronological progression; officials

must be given the duty to ground the virtue of their sources of

income; there should be an effective system of control and

supervision, etc. [16]. Thus, despite the fact that the

aforementioned international documents did not have binding

legal force, all recommendations in one way or another were

introduced into the national legislation of most states.

The third approach to the declaration system is dualistic.

Despite a clear distinction between illicit enrichment and

conflict of interest, many declaration systems combine

elements of both. This combination allows you to cover the

criteria for checking content regardless of whether conflicts of

interest or cases of illicit enrichment are being reviewed.

However, these criteria may be present in by-laws, procedural

guidelines, or agency regulations that are defined for small

groups of officials (for example, customs). This declaration

system, for example, is implemented in the practice of Brazil

and Slovenia.

.4 International Practice of Anti-Corruption Declaration

The choice of practice of anti-corruption declaration at the

The experience of the US anti-corruption declaration is

exceptional, the main purpose of which is to identify and

prevent potential conflicts of interest. The declaration system is

international level depends on the type of legal system of the

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not designed specifically to combat illicit enrichment. In the

US, there are differences between the form of the declaration,

which is subject to publication and which is confidential. The

form that is to be made public does not require asset value

categories and income amounts, and does not require financial

interests (including salaries, consultations, fees, equity stakes,

interests in tangible or personal property, dividends, royalties,

rents, capital gains, intellectual property income, etc.)

Thus, the key elements of the US declaration system are: a

direction to identify and prevent potential conflicts of interest;

a financial disclosure is carried out to demonstrate government

transparency; the declarations are submitted to the institution in

which the declarant works; the information presented is

checked for completeness and in fact, a potential conflict of

interest (in case of violations, ethics officers are intended to

transfer this matter to the Office of the Inspector General, the

Federal Bureau of Investigation or the public virtue department

of the Ministry of Justice); agencies can choose to submit

electronic or paper submissions; each agency is responsible for

disclosing the income and assets of its employees, which should

be available at the request of the public within 30 days after the

submission of the final report; criminal, civil and administrative

sanctions may be applied for submitting false information; the

fee for late submission of the declaration is 200 US dollars if it

is submitted within 30 days after the deadline; declarations are

kept for six years after submission, except in cases of ongoing

investigation [21].

It is proposed to use the experience of the United States to

improve the system of anti-corruption declaration in terms of

introducing control over the virtue of public servants at the

local level. Adapting this provision to the legal system of the

Ukrainian state,it is advisable to create an ethics commission

within the system of the executive branch, legislative branch,

and judicial branch. The powers of these commissions should

include initial monitoring of compliance with anti-corruption

laws, initial verification of declarations, receipt and

consideration of allegations of possible violation of virtue by

public servants of the relevant branch of government. For other

entities that are subject to declaration, then for them the

declaration procedure remains unchanged. It is also advisable

to use penalties for late submission of declarations, if the period

does not exceed 30 days. Such a measure will at the same time

help to reduce the burden on trial courts, which are related to

the late submission of declarations and will allow disciplining

public servants under pressure of property encumbrances.

Funds received as a fine can be used to develop the material

and technical support of the declaration system.

functions of the state and local self-government are in the

public domain; the process of declarationis characterized by an

external type of institutional support for declarations through

the functioning of specialized anti-corruption bodies.

The following ways to improve the functioning of the anti-

corruption declaration system in Ukraine are proposed: return

to the wording of the Law “On Prevention of Corruption” in

terms of determining the minimum threshold for valuable

movable property to be declared at a level of at least 50

minimum living wages for able-bodied citizens; adoption of a

separate regulatory act that will determine the procedure for

interaction between the National Agency for the Prevention of

Corruption and other anti-corruption and law enforcement

agencies with regard to combating corruption crime in Ukraine;

the introduction in Ukraine of the obligatory annual declaration

by citizens of their income to the tax service; identifying the

reasons and taking measures to enhance the effectiveness of the

National Agency for the Prevention of Corruption in the system

of electronic declaration and legal framework for public

participation in public administration require appropriate legal

support.

Ethical issue

Authors are aware of, and comply with, best practice in

publication ethics specifically with regard to authorship

(

avoidance of guest authorship), dual submission, manipulation

of figures, competing interests and compliance with policies on

research ethics. Authors adhere to publication requirements

that submitted work is original and has not been published

elsewhere in any language.

Competing interests

The authors declare that there is no conflict of interest that

would prejudice the impartiality of this scientific work.

Authors’ contribution

All authors of this study have a complete contribution for

data collection, data analyses and manuscript writing.

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