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Section 19. Science of law
Polishchuk Viktoriia, postgraduate student, the Faculty of Law, University of Economics and Law "KROK", Kyiv E-mail: [email protected]
THE INSTITUTION OF COMPLIANCE OFFICER FOR THE IMPLEMENTATION OF ANTI-CORRUPTION PROGRAM AS ONE OF THE ANTI-CORRUPTION MECHANISMS IN UKRAINE
Abstract: The article explores the role of Compliance Officer for the implementation of the Anti-Corruption Program in the mechanism of preventing and combating corruption in Ukraine. The purpose of the article is to analyze the role of the institution of Compliance Officer for the implementation Anti-Corruption Program as one of the effective elements of the anti-corruption mechanism in the fight against corruption Ukraine. It has been found that the institution of Compliance Officer for the implementation of the Anti-Corruption Program requires proper legal and legislative support.
Keywords: Compliance Officer, Anti-corruption program, corruption, prevention, anti-corruption legislation, public authorities, mechanisms.
Introduction
The problem of fighting against corruption is one of the most relevant and vital for the state today. In the modern globalized world, respect for precepts of anti-corruption law provides competitive advantage. State authorities and local government, the state companies, which adhere to anti-corruption policy, are more attractive for workers and for the society.
Since 2014 the institution of Compliance Officer for the implementation of Anti-corruption program, created for the implementation of the Anti-corruption program and providing anti-corruption policy in public authorities, local government and in the state enterprises, became one of the strategic elements in the anti-corruption policy mechanism in Ukraine. It is regulated by the Law of Ukraine "On Prevention of Corruption", dated October 14, 2014 [1].
Approach to understanding the anti-corruption mechanism as the system of relevant activities is widespread. So, E. Nevmerzhitsky defines a concept of the anti-corruption mechanism as the system of political, institutional, social and economic, cultural and legal measures which society and the state apply in anti-corruption. The author considers this system of mechanisms in overcoming corruption as a set of relevant activities, according to their distribution into those levels which identify with certain subjects of overcoming corruption (starting with the President, down to media and structures of the state and public control) [2, p. 8].
The functional purpose for the Institution of Compliance Officer for the implementation of Anti-corruption program is to help bring to reality the organizing potential, which the prevention and counteraction system has as the social phenomenon; the Institute brings this system to a dynamic state. It means that, within this mechanism, a certain activity has to be carried out according to the established rules within application of the corresponding anti-corruption methods.
Quite fairly, D. Mashlyakevich points out in his thesis that, in general, activity of all anti-corruption subjects consists of many functions. Their accurate and full definition represents an important scientific task. Content of functions is defined by the object of their influence, meaning that the nature of operated obj ects determines the detailed content of subjective functions [3, p. 172].
Among the factors promoting emergence of corruption, are the insufficient integrity levels of state representatives and of those authorized by the state. Ukrainian society lacks criticism in their attitude toward cases of corruption; there is also common perception in people that corruption is one of the main means in achieving the desirable result. As one of the anti-corruption mechanisms, the Institution of Compliance Officer for the implementation of Anti-corruption program forms an anti-corruption policy, and is the main herald for anti-corruption being the phenomenon in the state authority.
Effective and real formation of the Institution of Compliance Officer for the implementation of Anti-corruption
Section 19. Science of law
program in the state authorities would definitely provide appropriate implementation of anti-corruption legislation at the national level, as well as locally.
However, the question of granting to the Compliance Officer for the implementation of Anti-corruption full rights for drawing up protocols within the organization where s/he is employed, remains unresolved to this day. The Compliance Officer has to have the right to transfer administrative reports and protocols to the law enforcement authorities. Protocols are usually presented to trial in agreement with prosecutor's office, as the prosecutor's office holds the state prosecution during the corresponding procedures in court in case of any administrative offenses.
In Ukraine, two state bodies are allowed to make protocols: the National Agency for Prevention of Corruption and the National Police of Ukraine. From the very beginning it was supposed that the National Agency for Prevention of Corruption will be the effective authority with local territorial divisions. To date, two years of work are completed; however they prove this work being not only inefficient but even harmful. The divisions of National Police of Ukraine are not able to cope with drawing up an excessive number of administrative protocols and reports.
At the legislative level, the Compliance Officer for the implementation of Anti-corruption program needs to be granted the full right to act - without the power of attorney - on behalf of an enterprise when informing the law-enforcement authorities about corruption or about any other offenses [4, p. 239]. As of today, it is rather difficult for the Compliance Officer to carry out his activity without this right. The Compliance Officer remains under constant pressure by the environment ofthe given organization where s/he is authorized to perform functions on anti-corruption program implementation. This is despite explanations of the National Agency for Prevention of Corruption provisions, which in many cases are only declarative - such as: workers' unwillingness to declare their income, nepotism, the conflict of interests and attempts to hide it, tender operations and giving preference to the certain interested companies.
It would be expedient to grant to the Compliance Officer the right to introduce the written petition to release the person(s) from a post when the person(s) are involved in corruption actions; furthermore, it would be obligatory to make corresponding changes to the current legislation. At the legislative level, it proves worthwhile to forbid applying pressure upon the Compliance Officer's actions from any side whilst conducting service checks, having implemented in the current legislation the punitive measures for applying any such pressure upon actions of the Compliance Officer. First of all, it is about the team of employees and about management of the
Compliance Officer, as there is no legislative responsibility whatsoever for applying the abovementioned pressure upon Compliance Officer.
For instance, employers in the legal department addressed the Head of the state enterprise by writing the letter with request to oblige the Compliance Officer to change the decision in regards to office investigation on corruption actions of a certain individual.
The Ukrainian legislation does not specify whatsoever the forbiddance of abovementioned actions and the like - which means such actions are allowed. As of today, the current legislation does not provide and does not guarantee to the Compliance Officer for the implementation ofAnti-corruption program any personal protection or safety, any rights or freedoms; there is absolutely no protection provided for his/her family members.
I offer recommendations concerning The Institute of The Compliance Officer for the Implementation of Anti-corruption program as one of the key elements in the anti-corruption mechanism at the state level:
1. Independence of The Compliance Officer for the Implementation ofAnti-corruption program; also their independence in decision-making; the ban on making influence and/ or applying pressure upon The Compliance Officer.
2. To expand the powers and functions of The Compliance Officer and his/her Representatives; granting them rights to issue independent administrative protocols and reports taken into consideration the large workload and low efficiency of the Ukrainian law-enforcement system.
3. To effectively strengthen and increase the efficiency of The Institute of the Compliance Officer on Anti-corruption. The State must legally provide personal protection for The Compliance Officer, having provided him/her with guarantees and safe environment for the implementation of his/her immediate duties in revealing and counteracting corruption.
4. To introduce The Compliance Officer's position in the supreme government offices and authorities: at the Cabinet of Ministries of Ukraine, at the Administration of the President of Ukraine, and in the Ukrainian Parliament.
5. To eliminate The Compliance Officer's submission directly to the Head; to provide complete independence of The Compliance Officer from his/her Head or manager. The appointment to the post of the Compliance Officer on the Implementation of Anti-corruption program should be done not by the Head but only by National Agency for Prevention of Corruption.
6. To settle the remuneration for The Compliance Officer on the Implementation of Anti-corruption program with taking into consideration all risks and dangers of their position.
7. To grant to The Compliance Officer on the Implementation of Anti-corruption program the right to act without
the power of attorney on behalf of the public authority or enterprise where he/she is employed whilst informing the law enforcement agencies about corruption or about any offenses.
Conclusions
Introducing The Institute of the Compliance Officer on the Implementation of Anti-corruption program has to provide an impulse to positive changes in de-corrupting the whole Ukrainian society. At the state level, clarifying the aspects of an organizational and legal anti-corruption mechanism allows to note that the most difficult questions remaining are those
connected with development, improvement and the implementation of its realization instruments. However, political will of the country leaders, according to resolving anti-corruption issues, in introducing the position The Compliance Officer on the Implementation of Anti-corruption program in supreme state authorities, in particular, at the Cabinet of Ministries of Ukraine, at the Verkhovna Rada of Ukraine and at the Administration of The President of Ukraine, have to become primary steps of the state on the way of overcoming corruption.
References:
1. On Prevention of Corruption: Law of Ukraine dated October 14, 2014 - No. 1700 // Bulletin of the Verkhovna Rada of Ukraine, 2014.- No. 49.- Art. 2056.
2. Nevmerzhitsky E. Corruption as a socio-political phenomenon: Manuscript. Thesis for Doctor in Political Science degree in speciality 23.00.02 / E. Nevmerzhitsky.- I. Kuras Institute of Political and Ethnic-National Studies of the National Academy of Sciences of Ukraine, Kyiv, 2009.- 8 p.
3. Mashlyakevich D. Strategies for prevention and counteraction of corruption in Ukraine: [monograph] / D. Mashlyakevich, A. Litvinov.- Kharkiv: "In fact", 2016.- 260 p.
4. Polishchuk V. Establishment and Development of the Institution of Compliance Officer for the Implementation of AntiCorruption Program in Ukraine // International Scientific Journal "Diplomacy and Law", 2018.- No. 1. (4).- 239 p.
