Creative Union “TORO” (Contact group in Ukraine of Transparency International) during last month received a great amount of inquiries from civil society organizations of Ukraine with the request to define separate norms of new anti corruption legislation. In particular, civic leaders were disturbed by the fact that since now they as leaders of civic structures were not allowed to conduct any other paid activity, including business activity.
We would like to state right away that there are no grounds to be worried about. Below, we offer an expert comment, which was prepared by Oleksandr Vinnikov, European Law Development Network. We, in our turn, ask civic activists to read laws more attentively and if needed call for help.
We are always ready to help you!
On the 1st of January the Law of Ukraine
“On basis of prevention and fighting corruption”
№ 1506 from 11.06.2009 comes into force.
This law doesn’t presuppose additional criminal punishments, but sets up a number of limitations and special checking of persons who perform state functions. Besides establishing a procedure of anti corruption expertise of legal acts drafts, including civic, a big interest for the civil society arouses the execution of articles 15 and 16 of this law. These articles relate to the participation of the community in the measures as for prevention and fighting corruption, as well as informing the community as for prevention and fighting corruption.
Anyhow, there are certain limitations for the representatives of the civil society itself.
In which cases the representative of the civil society can be recognized as a corruptionist?
A lot were upset with point 2, part 1, article 2 of the law, where the heads of civic organizations were included to the list of liability subjects for corruption offences. But it’s important to clarify that paragraph b) of this point speaks about the heads of those organizations, which are partially financed from the state or local budget.
The following persons also fall under the scope of this law: assistants-consultants of members of Parliament who get salary, arbitrators, and officials of international organizations. Besides, grants and other funds obtained by civil society organizations on the basis of international technical assistance agreements can be recognized as state funds according to part 4, article 9 of Budget Code. Therefore, misuse of these funds also falls under scope of anti corruption laws.
In part 2, article 5 of the law it is stated that the cost of separate gifts, which state officials get from the representatives of civil society, cannot exceed one tax social privilege (in 2009 – 302,5 hryvna). Therefore, if the head of civic organization or other legal person presents to the mayor or taxation inspector a bottle of wine, worth more than 300 hryvna, this very representative of the civil society becomes a corruptionist.
It should be also mentioned that it won’t be bank secret or confidential information as for the amount or kind of charitable or other help, given by or obtained by civil servants (point 1, part 1, article 14 of the law).
What are the specific limitations set up for the heads of civic organizations, which are partially financed from the budget?
Part 1, article 4 of the law mentions just 2 of such limitations: not to use his/her position with the aim of obtaining illegal benefit or getting promise/suggestion of such benefit for oneself or other persons (point 1), as well as not to refuse natural or legal persons in granting information, the assignment of which is provided by the law, to give unauthentic or not full information (point 4).
The last sentence of this part clearly states that heads of civic organizations or other persons indicated in point 2, part 1, article 2 of the law, do not fall under scope of limitations, provided by points 2-3, part 1, article 4 of the law.
Therefore, heads of civic organizations (including those who are deputies of local councils) retain their right, accordingly, to conduct other paid or business activity, as well as to be members of board or observatory councils of other company or organization.
Oleskii Khmara, Creative Union “TORO”
Oleksandr Vinnikov, European Law Development Network
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