The National Agency on Corruption Prevention has the right issue a precept on violation of the legislation requirements on ethical conduct, prevention and settlement of conflicts of interest, other requirements and restrictions, as well as in matters of whistleblowers protection. These opportunities of the Agency are spelled out in Article 12, part 1, paragraphs 5-3 of the Law of Ukraine “On Prevention of Corruption” (hereinafter referred to as the Law).
What is this precept, and when is it issued?
Article 12, part 6 of this Law defines what the NACP should do in cases of detection of legislation violation regarding:
- ethical conduct,
- prevention and settlement of conflicts of interest in the activity of officials and equal-status persons,
- protection of whistleblowers,
- or other violation of this Law.
If such violations are detected, the NACP issues a precept to the head of the relevant body, enterprise, institution, or organization to eliminate law violations, conduct an internal investigation, bring the guilty person to justice as established by law. If the person in respect of whom the precept is issued does not have a supervisor, such a document is submitted to the person who has the right to dismiss or initiate the dismissal of such a potential violator.
From May 1, 2020, the NACP issued 82 such precepts. Examples include the precept to the Head of the State Service of Maritime and River Transport of Ukraine (Maritime Administration). The official, contrary to the requirements of the anti-corruption legislation, without the consent of the NACP, signed an order to dismiss the head of the Sector for Preventing and Detecting Corruption (authorized agent) of the Maritime Administration.
Mandatory approval with the NACP guarantees the independence of the authorized agent from influence or interference in their work. In the precept drawn up, the NACP demanded to eliminate violations and cancel the illegal order of the Maritime Administration to dismiss the authorized agent, as well as to conduct an internal investigation.
The authors of the original legislation presumed that by the precept of the NACP Head one cannot cancel Presidential decrees, Laws of Ukraine, affect labor relations, and so on. At the same time, it was noted that the precept is made either for the purpose of an internal investigation, or in order to respond to violations detected, for example, during the inspection of anti-corruption work in an institution, etc.
Regulation of the precept, of course, should be in balance with legal relations that are regulated by the norms of other legislation. For example, Article 26 or Article 67 of the Law directly refers to a mandatory judicial procedure. Otherwise, it would be possible not to draw up protocols or give conclusions for full verification of the declaration, etc., but to limit oneself to issuing a precept.
Another feature enshrined in Article 65-1 of the Law is that in relation to the violator, internal investigation can be carried out in accordance with the procedure established by the Cabinet of Ministers of Ukraine.
It is interesting that the NACP precept as a written requirement to eliminate violations of the legislation requirements in the field of corruption prevention is compulsory. By the way, the Supreme Court noted that the mandatory nature of the NACP precept is that it cannot be ignored by the addressed body, enterprise, institution, or organization, and is subject to mandatory consideration by these entities.
The official to whom it is addressed informs the NACP about the results of realization of Agency’s precept throughout ten working days from the date of receipt of the instruction.
Control over the timeliness and completeness of compliance with the requirements specified in the precept is carried out by the head of the structural division of the NACP apparatus, where the authorized person of the Agency who discovered the violation works, or on their behalf by another person of this division.
In case of non-compliance with the precept within the established period, the authorized person of the NACP draws up a protocol about an administrative offense. In order to stop the violation and eliminate its consequences, the National Agency repeatedly issues a precept.
For non-compliance with the order, administrative liability is envisaged: a fine from UAH 1,700 to 4,250 for failure to comply with the legal requirements (precepts) of the NACP on elimination of violations of the legislation on preventing and combating corruption, failure to provide information, documents, as well as violation of the deadlines established by law for their provision and providing deliberately false information in accordance with Articles 188-46 of the Administrative Code. If these actions were committed by a person who has already been subjected to an administrative penalty for the same violation during the year, the fine will be from UAH 3,400 to 5,100.
When is the precept not issued?
There are several exceptions to issuing a precept, which were added to the legislation when restoring the powers of the NACP after the infamous decision of the Constitutional Court.
First, the precept is not issued if a violation of the requirements of this Law on ethical conduct, prevention and settlement of conflicts of interest is detected in the activity of judges of the Constitutional Court of Ukraine. The NACP informs the High Council of Justice or the Constitutional Court of Ukraine about the detection of such violations. They, in accordance with the powers granted by law, decide on subjecting a judge of the Constitutional Court of Ukraine to disciplinary action in accordance with the procedure established by law.
Secondly, NACP’s precept is not issued on matters that directly relate to the administration of justice by a judge, as well as the implementation of constitutional proceedings by a judge of the Constitutional Court of Ukraine.
The precepts of the NACP have another feature in accordance with the Law of Ukraine “On Political Parties in Ukraine.” According to Article 20, in the event of a public announcement by the governing bodies of a political party of its intention to commit actions for which the laws of Ukraine envisage legal liability, the relevant bodies responsible for monitoring the activity of political parties issue precepts on the prevention of illegal actions. In other words, the NACP issues a precept to the head of the relevant political party.
If the actions (or inaction) committed by a political party do not entail a different type of liability, the supervisory authorities issue a precept to eliminate the committed offenses.
The leadership of a political party is obliged to immediately eliminate violations of the legislation of Ukraine that became the basis for issuing the precept, and in a five-day period report the measures taken to the body that issued the precept.
The NACP also has an internal procedure for issuing precepts. According to it, for example, a precept is signed by the Head of the National Agency, the Deputy Head of the National Agency in accordance with the distribution of responsibilities, or the head of the corresponding independent structural division of the National Agency’s apparatus, who, according to the regulations on independent structural division, is granted the right to issue precepts.
Other information, such as the registration of precepts or what the precept should contain, can be found in the above-mentioned Procedure.