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DOI: https://doi.org/10.30525/2256-0742/2Q22-8-3-134-142
SELECTED ISSUES OF IMPLEMENTING MEASURES TO PREVENT CORRUPTION DURING MARTIAL LAW
Iryna Myloserdna1, Alina Prokhorenko2, Kateryna Savon3
Abstract. The subject of the study is the conceptual and praxeological theoretical basis for the implementation of measures to prevent corruption during martial law. Methodology: general and special methods of scientific knowledge were used in this study. The comparison method was used to summarize the approaches of various researchers on the main dominants to the definition of the concepts of "restrictions" and "anti-corruption restrictions". The analysis was used to determine quantitative and qualitative parameters that characterize the specifics of applying restrictions on relatives' work in relation to servicemen. The results of the study showed that there is an urgent need in Ukraine to adjust the anti-corruption mechanism so that the existing anti-corruption measures are improved and adapted to the conditions of martial law. Conclusion. It has been established that measures to prevent corruption, such as anti-corruption declarations and special inspections, have been simplified during martial law, which has a positive effect, mediated by the presence of objective reasons for the impossibility of their normal application. Attention is drawn to the fact that some anti-corruption restrictions have been forcibly terminated - there are temporary reservations regarding restrictions on receiving gifts and restrictions on the use of official powers or one's position. It is substantiated that anti-corruption restrictions during the martial law period have gained signs of flexibility, but only for charitable purposes and for the purpose of material support of the defense of Ukraine, which corresponds to the modern national interests. The current order of application of anti-corruption restrictions to servicemen of the Armed Forces of Ukraine and other military formations, formed in accordance with the legislation, was analyzed. It is noted that at the subordinate level was used an expansive interpretation of the restriction of joint work of close persons by applying it to almost all members of the Armed Forces of Ukraine, which is not consistent with the prescriptions of the relevant anti-corruption legislation. Amending Art. 27 of the Law of Ukraine "On Prevention of Corruption" by singling out military officials as subjects who are not subject to the restriction on joint work of relatives.
Key words: martial law, corruption, prevention of corruption, anti-corruption restrictions, military officials.
JEL Classification: D73, K19
1. Introduction
Activities to prevent corruption are relevant to every state, regardless of the degree of development of the democratic system. For Ukraine, the issue of preventing corruption after the introduction of martial law (On the Legal Regime of Martial Law, 2022; The issue of introducing and enforcing measures of the legal regime of martial law in Ukraine, 2022; On Approval of the Decree of the President of Ukraine "On the Introduction of Martial Law in Ukraine") took on new significance. On the one hand, the destabilization of social relations due to corruption
1 National University "Odessa Academy of Law", Ukraine (corresponding E-mail: [email protected]
ORCID: https://orcid.org/0000-0003-2083-9500
2 National University "Odessa Academy of Law", Ukraine E-mail: [email protected]
ORCID: https://orcid.org/0000-0002-8662-9322
3 National University "Odessa Academy of Law", Ukraine E-mail: [email protected]
ORCID: https://orcid.org/0000-0001-5624-7262
during a special period is unacceptable, since the needs of national security come to the fore. On the other hand, the perception of Ukraine as a European-type state is impossible against the background of its association with a developed corruption system. Thus, the political will in the aspect of preventing corruption must be adjusted so that existing anti-corruption measures are improved and adapted to the conditions of martial law.
The value of studying corruption prevention measures is underlined by the constant updating of the principles of their application at the European
author)
This is an Open Access article, distributed under the terms of the Creative Commons Attribution CC BY 4.0
Union level (The Prevention of Corruption as Part of Mandatory Due Diligence in EU Legislation, 2021; EU contribution on EU-level anti-corruption policy/ practice, 2021), which is noted in the relevant doctrinal works (Pinchuk, Shevchenko, 2021; Kornuta, Goloyadova, Zavhorodnia, Reva, 2020).
Particular attention should be paid to the practical implementation of anti-corruption legislation in relation to certain categories of entities to which it applies. The need to ensure the defense of Ukraine, protection of its sovereignty, territorial integrity and inviolability in connection with the ongoing large-scale armed aggression of the Russian Federation against Ukraine has forced the state and society, all Ukrainian people to stand up to protect the sovereignty and territorial integrity of Ukraine. Therefore, the application of anti-corruption restrictions and prohibitions, for example, to military personnel, is disproportionate and violates the balance between the tasks and functions assigned to the Armed Forces of Ukraine and other military formations formed in accordance with the laws, and the negative consequences of such restrictions and prohibitions.
This indicates the importance of analyzing the implementation of measures to prevent corruption during martial law with a focus on individual anticorruption restrictions.
2. Normative and praxeological changes
in the implementation
of the anti-corruption mechanism
Normative legal regulation of corruption prevention must correspond to the state of social relations and the challenges of martial law. The regulation of the anti-corruption sphere is no exception.
Therefore, a logical step in this direction was the adoption of the Law of Ukraine "On Protection of Subjects' Interests in Filing Declarations and Other Documents during Martial Law or State of War", which slightly changed the conditions for filing declarations by persons authorized to perform state or local government functions. If Part 1 of Art. 45 of the Law of Ukraine "On Prevention of Corruption" (2014) stipulates that the authorized subjects of the declaration must submit by filling in on the official website of the National Agency the declaration of the person authorized to perform the functions of the state or local government for the past year in the form determined by the National Agency, annually before April 1. According to Paragraph 1 of Part 1 of the Law of Ukraine "On Protection of Subjects of Reporting and Other Documents During Martial Law or State of War", individuals, individual entrepreneurs, legal entities submit accounting, financial, accounting, calculation, auditing reports and any other documents required by the current legislation in documentary
and/or electronic form, within three months after the termination or cancellation of martial law or the state of war for the entire period of non-submission of reports or the obligation to submit documents. In addition, during martial law or a state of war, as well as within three months after its termination, these persons are not subject to administrative and (or) criminal liability for failure to submit or untimely submission of reports (On Protection of Subjects of Reporting and Other Documents during Martial Law or State of War, 2022). At the same time, the aforesaid law does not distinguish the peculiarities of submission of declarations depending on the type - annual declaration, declaration upon termination of employment and declaration of a candidate for office.
Clarification of the National Agency for the Prevention of Corruption № 4 of 07.03.2022 details the specifics of reporting on the types of declarations, in particular:
1) the annual declaration (with any marking) for the year 2021 shall be submitted from 00:00 on the day following the day of termination or cancellation of martial law to 00:00 on the corresponding day of the third month from such day. Such a declaration must cover the reporting year (the period from January 1 to December 31, 2021 inclusive) and contain information as of December 31 of the reporting year;
2) the declaration on release, if release occurred during martial law, shall be submitted between 00:00 of the day following the termination or cancellation of martial law and 00:00 of the corresponding day of the third month from that day. Such a declaration shall be submitted for a period not covered by declarations previously submitted by the subject of the declaration and shall contain information as of the last day of such period, which is the last day of the activity entailing the obligation to submit the declaration, the occupation of the position conditioning the performance of such activity;
3) The declaration of a candidate for a position, if the person is appointed to a vacant position in the civil service or local government service during martial law, shall be submitted between 00:00 of the day following the day of termination or cancellation of martial law and 00:00 of the corresponding third month from such day (Regarding the application of certain provisions of the Law of Ukraine "On Prevention of Corruption" regarding financial control measures under martial law (filing a declaration, notification of significant changes in property status, notification of opening a foreign currency account with a non-resident banking institution, inspections, 2022).
This filing deadline also applies to the requirements to file a notice of material change and a notice of the opening of a foreign currency account with
a non-resident banking institution. That is, authorized persons - subjects of declaration are obliged to submit the specified notifications within three months after termination or cancellation of martial law or state of war, provided that such obligation arose during martial law.
In addition, attention is drawn to the fact that persons who are physically unable to submit reports or documents on time due to the immediate consequences of their participation in hostilities are exempt from administrative and/or criminal liability and submit reports or documents within one month of the end of the consequences that made it impossible to submit them.
Thus, if the subject of the declaration does not have the physical ability to submit declarations, notifications of significant changes and notifications of opening a currency account with a non-resident banking institution within three months of the abolition of martial law or state of war due to the direct consequences of participation in hostilities, they shall be submitted in the period from 00:00 of the day following the end of the consequences that made it impossible to submit them until 00:00 of the corresponding day of the next month.
Of great importance is the entry into force of the Law of Ukraine "On Amending Certain Laws of Ukraine on the Functioning of Civil Service and Local Government during Martial Law", which contributed to the introduction of a simplified procedure for entry into civil service positions and positions in local government. In particular, according to paragraphs 7 and 8, during martial law, special checks, stipulated by the relevant anti-corruption legislation, are not conducted with respect to applicants for responsible or especially responsible positions and positions with increased risk of corruption, a list of which is approved by the National Agency for the Prevention of Corruption, as well as checks conducted with respect to applicants for positions for which the measures to purge power (lustration).
At the same time, the organization of a special inspection of persons appointed during martial law must be carried out within three months from the date of termination or cancellation of martial law, except if such person is released before the date of termination or cancellation of martial law or end of the specified inspections during martial law (On Amendments to Some Laws of Ukraine Concerning the Operation of Civil Service and Local Government during the Period of Martial Law, 2022).
Thus, measures to prevent corruption, such as anti-corruption declarations and special inspections, were simplified during martial law, which has a positive effect, mediated by the presence of objective reasons for the impossibility of their normal application.
At the same time, conditions were created for further improvement of the corruption prevention mechanism. This was reflected in the adoption of the Law of Ukraine "On the Principles of State AntiCorruption Policy for 2021-2025" (2022), which defines the basic tenets of the formation and implementation of anti-corruption policy in Ukraine.
3. Legal nature of anti-corruption
restrictions and conditions
of their adaptation to the special period
While guaranteeing to every citizen the right of access to public service, the state at the same time restricts public servants in certain rights, given the specifics of their service. In a general theoretical sense in the categories of "restrictions" and "prohibitions" should be highlighted certain aspects. First of all, these categories act as external factors that significantly affect the interests of certain individuals. Denisova A.M. it is emphasized that the category of "legal restrictions" in legal literature is perceived by scientists depending on the specifics of social relations and legal ways of influencing them (Denisova, 2011: 51). In particular, limitations can be found in the close relationship between the internal structure of the subject and the external legal conditions imposed on this subject.
The point of view of K.M. Zubov seems to be correct. Zubov, who argued that restrictions established by law are legal restrictions. The actual "limitation of rights" needs to be distinguished from the definition of "restriction", as it can be issued by the direct head of a state body, but is not regulated by the requirements of the current legislation. The researcher emphasizes that legal restrictions in their content are relatively extensive, voluminous and multifaceted, and the lack of a single normative act, which approved an exhaustive list of such restrictions for officials, creates only certain difficulties in regulating this area of legal relations (Zubov, 2010: 15). Thus, in a broad sense, the categories of "limitation of rights" and "prohibition" correlate as whole and partial. In contrast, the narrow understanding of "restrictions" encompasses those behavioral criteria that one must fulfill.
Signs of legal restrictions include the following: a) they entail negative conditions for the realization of the subject's own interests by meeting the demands of the opposite party and the interests of society in order to protect or defend them; b) it is a type of notice of reduction of freedom and authority, which is achieved by establishing specific prohibitions, duties or charges; c) is a manifestation of a negative legal motivation; d) their main purpose is to limit the activity of a subject of law, which has a pronounced negative nature; e) are used to protect public interests,
as they are aimed at implementing a protective function for social interests in general.
A systematic analysis of the legal nature of the categories of "burdens" and the establishment of common and distinctive features with the definition of "restrictions" as anti-corruption measures is necessary. Legislative restrictions aimed at preventing corruption offenses have a fairly wide range of means of direct regulation of social relations in various spheres of public life, which corresponds not only to the realities of law enforcement, but also to international practice of prevention of corruption (Platonenko, 2019: 231).
The dialectical value of the analysis of anticorruption restrictions lies in two aspects of the interpretation of "restrictions":
1) direct restriction of rights or prohibition to act in a certain way;
2) restriction or prohibition of the exercise of certain rights (complete or partial impossibility of exercise of certain rights of an individual) under certain conditions.
The latter approach indicates that the subject of legal relations remains with all the rights and freedoms that he is endowed with, and that limited is only a variation of their implementation (Fiegel, 2016: 359) in terms of restrictions that apply after the termination of public service.
Anti-corruption restrictions are aimed at preventing corruption. The legal concept of "corruption" is defined by Article 1 of the Law of Ukraine "On Prevention of Corruption" as the use by the persons specified in the law of their official powers or related opportunities to obtain illegal benefits or acceptance of such benefits, or acceptance of the promise/offer of such benefits to themselves or other persons, or requirements to other individuals or legal entities to induce them to use their official powers or related opportunities illegally (On Prevention of Corruption, 2014). Thus, anti-corruption restrictions are aimed at creating conditions in which corruption is impossible.
This research is based on the combined approach to anti-corruption restrictions proposed by S.M. Klimova and T.V. Kovalova (2015) taking into account the need to implement the provisions of Article 2 of Article 12 of the UN Convention against Corruption regarding inclusion in the measures to prevent corruption, 'inter alia' (among other things), establishing restrictions, in appropriate cases and for a reasonable period, regarding the professional activities of former public officials in the private sector after their resignation or retirement, if such activity or work is directly related to the functions that such public officials performed during their tenure of office or the performance of which they supervised (UN Convention against Corruption, 2003).
Analysis of the provisions of the Law of Ukraine "On Prevention of Corruption" allows identifying
the following groups of restrictions: "Restrictions on the use of official powers or his position" (Article 22), "Restrictions on receiving gifts" (Article 23), "Restrictions on cooperation and combining with other activities" (Article 25), "Restrictions after termination of activities related to the performance of functions of the state, local government" (Article 26), "Restrictions on joint work of close persons" (Article 27) (On Prevention of Corruption, 2014).
In fact, the combination of the above instruments is a set of anti-corruption mechanisms, which by their nature are special obstacles to corruption and related offenses.
Anti-corruption restrictions have the following common features: 1) they are informational in nature and they are designed to purposefully change the behavior of a specific subject - the subject of the Law of Ukraine "On Prevention of Corruption", and have a deterrent effect; 2) they are exclusively legal in nature, which turns them into an effective means of protecting the interests of society in the form of implementation of the negative motivation of personal enrichment of subjects and serves to achieve socially beneficial goals; 3) the end result of their application should be to ensure the effective functioning of public authorities, the development of social processes and strengthening the rule of law; 4) they have an absolute and applied nature of action, since they cannot be revoked and apply to specific officials.
During martial law in Ukraine, some anti-corruption restrictions were forced to cease. For example, there are temporary provisions (will be in effect from the day martial law is imposed until its termination, as well as within one month of its termination) regarding restrictions on receiving gifts and restrictions on the use of official powers or one's position. Accordingly, at this time, the requirement that gifts conform to generally accepted notions of hospitality and limitations on the value of gifts do not apply: receipt of funds fully used (if there is a confirmation of full use of received funds for one or more specified purposes) for such purposes as: transfers to special accounts opened by the National Bank of Ukraine to support the Armed Forces of Ukraine and/or for humanitarian aid to persons affected by the armed aggression of the Russian Federation against Ukraine; making charitable donations in favor of the Armed Forces of Ukraine, as well as for the support and protection of persons affected by the armed aggression of the Russian Federation against Ukraine; expenses for the purchase and supply of goods with their subsequent transfer to the ownership of the Armed Forces of Ukraine, other military formations formed in accordance with the legislation of Ukraine, voluntary formations of territorial communities, intelligence
agencies, law enforcement agencies; carrying out expenses for the purchase and delivery of goods, payment for work or services provided as humanitarian aid to persons who suffered as a result of the armed aggression of the Russian Federation against Ukraine; receipt of goods for free or at a price below the minimum market price for their subsequent transfer to the Armed Forces of Ukraine, other military formations formed in accordance with the legislation of Ukraine, voluntary formations of territorial communities, special services, law enforcement agencies (subject to confirmation of transfer of such goods in full); receipt free of charge or at a price below the minimum market price of goods provided as a charitable donation or humanitarian aid to persons affected by the armed aggression of the Russian Federation against Ukraine (subject to confirmation of the provision of such goods in full for these purposes), as well as persons who actually reside in the temporarily occupied territories of Ukraine or in the territories where hostilities are (were) taking place, or persons who were forced to leave their place of actual residence as a result of temporary occupation (threat of temporary occupation), conducting (threatening to conduct) hostilities, etc. (On Amendments to the Law of Ukraine "On Prevention of Corruption" on peculiarities of application of legislation on prevention of corruption under martial law, 2022).
Similarly, the ban on state and local self-government bodies receiving benefits, services and property in case legal advisors (including foreign ones) provide protection of rights and interests of Ukraine, state bodies and local self-government bodies in foreign jurisdictions is suspended (On Amendments to the Law of Ukraine "On the State Budget of Ukraine for 2022", 2022).
Thus, anti-corruption restrictions during martial law have acquired signs of flexibility, but exclusively for charitable purposes and for the purpose of materially ensuring the defense of Ukraine, which corresponds to modern national interests.
4. Peculiarities of applying anti-corruption restrictions to military personnel
In accordance with the provisions of Part 2 of Art. 17 of the Constitution of Ukraine, the defense of Ukraine, the protection of its sovereignty, territorial integrity and inviolability are entrusted to the Armed Forces of Ukraine (Constitution of Ukraine, 1996). By assigning this duty to the Armed Forces of Ukraine, the legislator in the Basic Law clearly defined the purpose of existence and tasks of the Armed Forces of Ukraine, their main purpose, which dominates over all other provisions, requirements and restrictions.
The Armed Forces of Ukraine as a military formation with an appropriate structure determined
by Article 3 of the Law of Ukraine "On the Armed Forces of Ukraine" (1991) mainly consist of their personnel, the number and order of manning which is determined by Articles 4-5 of the Law of Ukraine "On the Armed Forces of Ukraine". Any restrictions in the activities and the list of powers (rights and duties) of the personnel of the Armed Forces of Ukraine impede the proper and effective performance by the Armed Forces of Ukraine of its main tasks -the protection of the sovereignty, territorial integrity and inviolability of Ukraine - and therefore are unacceptable.
The fact is that most of the norms and provisions of anti-corruption legislation are, firstly, designed for peacetime, and secondly, mostly do not take into account the specifics of functioning of the Armed Forces of Ukraine and other military formations, formed in accordance with the laws.
Thus, legal and organizational principles of functioning of the system of prevention of corruption in Ukraine, the content and procedure for application of preventive anti-corruption mechanisms, the rules provided by the provisions of the Law of Ukraine "On Prevention of Corruption" apply in general to military officials of the Armed Forces of Ukraine and other military formations, formed in accordance with the laws on elimination of consequences of corruption offenses, etc. Such preventive anti-corruption mechanisms include restricting close people from working together.
According to Part 1 of Art. 27 of the Law of Ukraine "On Prevention of Corruption", the persons referred to in Paragraph 1 of Article 3 of this Act shall not be directly subordinate to persons close to them or be in direct subordination in connection with the performance of powers close to them. For the correct interpretation of the relationship of direct subordination it is necessary to consider that: a) direct subordination takes place when there is a relationship of direct organizational or legal dependence of the employee on the manager; if there is dependence, but it is indirect, then the anti-corruption restriction on the joint work of close persons does not apply;
b) the decision (participation in the decision) of issues of hiring, dismissal, application of incentives, disciplinary penalties, giving instructions, orders, etc., control over their implementation - this is a non-exhaustive list of possible forms of direct dependence;
c) participation in solving the issues of hiring, firing, application of incentives, disciplinary penalties, giving instructions, assignments, etc., control over their implementation, usually (but not always) indicates the presence of direct subordinate relations; sometimes these powers may take place even without relations of direct subordination (in particular, candidates for positions of heads of territorial bodies of the central executive body are coordinated with
heads of local state administrations, i.e., the latter participate in the procedure of selection of personnel, but are not direct managers for heads of these authorities of territorial bodies) (Khamhodera, 2019: 314).
According to the provisions of Part 2 of Article 27 of the Law of Ukraine "On Prevention of Corruption" (2014), in case of circumstances that violate the specified anti-corruption requirements, measures must be taken to eliminate such circumstances voluntarily or by compulsory transfer or dismissal from the position held.
To determine the specifics of the impact of the restriction on the joint work of close persons in relation to servicemen of the Armed Forces of Ukraine, it is necessary to determine the range of servicemen to whom the said restriction applies, as well as the content of "direct subordination" of servicemen of the Armed Forces of Ukraine and specifics of application to them of the stated anticorruption restriction.
According to Subparagraph "g", Paragraph 1, Article 3 of the Law of Ukraine "On Prevention of Corruption", the subjects covered by this Law are, in particular, military officials of the Armed Forces of Ukraine, State Service of Special Communication and Information Protection of Ukraine and other military formations formed in accordance with the laws, except for military service personnel, cadets of higher military educational institutions, cadets of higher educational institutions which include military institutes, cadets of faculties, departments and departments of military training (On Prevention of Corruption, 2014).
First of all, it should be noted that the concepts of "military officials" and "servicemen holding a military post" are not identical. The specifics of acquiring the status of a military official are present. Having analyzed the provisions of Article 6 of the Law of Ukraine "On Military Duty and Military Service" (1992), the following provisions are highlighted:
- the staff lists include military positions (staff positions to be filled by servicemen) and their corresponding military ranks;
- military officials - members of the armed forces who hold a full-time position connected with the performance of organizational and managerial duties (responsibilities for managing a branch, labor collective, section of work, production activities of individual employees of enterprises, institutions or organizations regardless of ownership) or administrative and economic duties (responsibilities for managing or disposing of state, municipal property, such as establishing procedures for its storage, processing, exercising control over these organizations, etc.), or specially authorized to perform such duties
in accordance with the law (Regarding the application of certain provisions of the Law of Ukraine "On Prevention of Corruption", on the submission of declarations by persons authorized to perform state or local government functions, military personnel, and other certain categories of subjects of declaration, 2020);
- military posts provided for in wartime regulations, when the Armed Forces of Ukraine and other military formations switch to wartime organization and regulations, are to be replaced by reservists or other conscripts in the manner prescribed by the Headquarters of the Armed Forces of Ukraine, and in the Security Service of Ukraine and the Foreign Intelligence Service of Ukraine - in the manner prescribed by their heads.
It should be noted that military officials of the Armed Forces of Ukraine hold staff positions during martial law in accordance with the order of the Ministry of Defense of Ukraine (On Approval of Amendments to the Instruction on the organization of implementation by citizens of Ukraine of the Regulations on military service in the Armed Forces of Ukraine, 2019), where there is no reference to the limitation of close relatives working together as a reason for not being appointed to a position.
The procedure for military service in the Armed Forces of Ukraine by citizens of Ukraine and issues related to military service in the Armed Forces of Ukraine are regulated by the Regulation on Military Service in the Armed Forces of Ukraine by citizens of Ukraine (2008). Accordingly, servicemen, who are close persons within the meaning of the Law of Ukraine "On Prevention of Corruption", cannot be in relations of direct organizational and legal dependence of a subordinate on his manager, including by solving (participating in solving) issues of acceptance for military service, appointment to a position, dismissal from military service, application of incentives, disciplinary penalties, providing instructions, orders, control over their implementation. That is, at the subordinate level an expansive interpretation of the restriction of joint work of close persons is proposed by applying it to almost all servicemen of the Armed Forces of Ukraine, which contradicts the provisions of the Law of Ukraine "On Prevention of Corruption" and is a negative factor in the staffing of the Armed Forces of Ukraine.
As for the content of the concept of "direct subordination" in relation to military service and its adaptation to servicemen, in particular under martial law, it is vague, which leads, on the one hand, to an unjustified expansion of the effect of limiting joint activities of close persons in relation to military personnel, and on the other, to complications in the staffing of the Armed Forces of Ukraine and other military formations, formed in accordance with the
laws, and as a consequence the inability to effectively implement their own tasks and functions.
The peculiarities of the subordination of servicemen at the appointment to a military post, certification, and dismissal from the service are multifaceted and include a number of plots. At the same time, it limits the right of persons who meet the established requirements to apply for this position, provided that a close relative can be involved in the official confirmation of the decision.
The performance of military service by persons who are formal servicemen is also problematic from the standpoint of compliance with the anti-corruption restriction on the service of close persons. According to the Law of Ukraine "On the Internal Service Statute of the Armed Forces of Ukraine" (1999), the features of military service, regardless of martial law, are as follows: 1) Individual command is one of the principles of construction and leadership of the Armed Forces of Ukraine and means: a) vesting the commander (superior) with full dispositive power over his subordinates and making him personally responsible to the state for all aspects of life and activities of a military unit, subdivision, and each serviceman; b) granting the commander (superior) the right to independently make decisions and give orders; 2) in accordance with their service position and military rank, servicemen may be superiors or subordinates in relation to other servicemen; regarding official and personal issues a serviceman should address his immediate superior, and if it is impossible to solve them - to the next immediate superior; superiors to whom servicemen are subordinated in service, including temporarily, are immediate superiors for these servicemen; the principle applies - "the immediate superior nearest to the subordinate is the immediate superior," etc.
Thus, direct subordination is not always covered by the relationship with a direct superior, which is also a feature of military service.
It is also noteworthy that in accordance with Part 5 of Art. 45 of the Law of Ukraine "On Prevention of Corruption" (2014), the effect of Chapter VII of this Law (the provisions of which are devoted to financial control) does not apply, in particular, to conscripted military servicemen during mobilization, for a special period, conscripted military service of reservists in a special the period of military service under the draft of officers, as well as military officials from the number of military servicemen under the contract of private members, military service under the contract of non-commissioned officers and sergeants, junior officers of the military service under the contract of officers, except military personnel, who undergo military service in territorial recruitment and social support centers.
That is, there is an exclusion from financial anti-corruption control, instead anti-corruption restrictions apply on general grounds. It is advisable to amend Article 27 of the Law of Ukraine "On Prevention of Corruption" by singling out persons who are military officials of the Armed Forces of Ukraine, the State Service of Special Communications and Information Protection of Ukraine and other military formations formed in accordance with the legislation as subjects who are not subject to restrictions on joint work of close persons.
5. Conclusions
The article deals with the conceptual and praxeological theoretical basis for the implementation of measures to prevent corruption during martial law. Attention is focused on the fact that the normative-legal regulation of corruption prevention should correspond to the state of public relations and the challenges of martial law.
It has been established that measures to prevent corruption, such as anti-corruption declarations and special inspections, have been simplified during martial law, which has a positive effect mediated by the presence of objective reasons for the impossibility of their normal application.
It is noted that anti-corruption restrictions have the following common features: 1) they are informational in nature and they are intended to purposefully change the behavior of a particular subject - the subject of the Law of Ukraine "On Prevention of Corruption", and have a deterrent effect; 2) they are exclusively legal in nature, which turns them into an effective means of protecting the interests of society in the form of implementation of the negative motivation of personal enrichment of subjects and serves to achieve socially beneficial goals; 3) the end result of their application should be to ensure the effective functioning of public authorities, the development of social processes and strengthening the rule of law; 4) they are absolute and applied, since they cannot be abolished and apply to certain officials. During martial law in Ukraine, certain anticorruption restrictions were forcibly suspended -temporary reservations were made regarding restrictions on receiving gifts and restrictions on the use of official powers or one's position.
It is substantiated that anti-corruption restrictions during martial law acquired signs of flexibility, but only for charitable purposes and for the purpose of material support of the defense capability of Ukraine, which corresponds to modern national interests.
Analyzed the current procedure for applying anti-corruption restrictions to military personnel of the Armed Forces of Ukraine and other military formations formed in accordance with the law.
It is noted that at the subordinate level an expansive interpretation of the restriction of joint work of close persons was used by applying it to almost all members of the Armed Forces of Ukraine, which is inconsistent with the prescriptions of the relevant anti-corruption legislation and is a negative factor in the staffing of the Armed Forces of Ukraine. Amending Art. 27 of the Law of Ukraine
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Received on: 2th of August, 2022 Accepted on: 9th of September, 2022 Published on: 30th of September, 2022
