Анотація | Abstract
The purpose of this research is to define the concept of corruption-related offence, as well as to articulate universal measures for preventing corruption at the international and national levels. This article identifies some effective measures aimed at preventing corruption. These imply changing the way a person should think, his/her state of mind; shaping political, economic, legal and social culture of citizens; implementing social policy against corruption that imply the participation of civic institutions and population. These are also measures aimed at taking control over corruption; applying the principle of regulatory openness and transparency; taking control over activities performed by officials and workers in the economic and financial sectors of public administration. These measures are universal for fighting corruption-related offences at the international level. This will allow enforcing the criminal law regulations concerning corruption more effectively, and will open new prospects for designing mechanisms of identifying corruption determinants in the most corrupted spheres.
Corruption and corruption-related offences are not constant phenomena. Both quantitative and qualitative indicators that characterize this sphere of crime commitment change as years pass. Corruption is such a phenomenon that spreads very quickly under favorable conditions and adapts to changes that occur in society (socio-economic, political, cultural changes). Such traits entail the emergence of new offenses, including the corruption-related ones. On the other hand, such a crime can also make the society (some of its spheres) to handle corruption as a tool for meeting one’s needs. Therefore, national legislators cannot always respond to new corruption-related offences or shape prevention strategies so quickly. This is another argument in favor of the fact that national and international criminal legislation should be extended by adding the concept of a corruption-related offence, since it will allow identifying new related offences quickly in accordance with the enshrined features of such.
Although the corruption-related offences develop in tune with the vast majority of social spheres, there are some spheres of public regulation that are recognized as the most corrupted ones. These are the housing-and-utilities services, building-and-construction and the healthcare. The following spheres can be added to this list:
spheres that touch finances and capital turnover – budget allocations at the national and local levels that allow some individuals to accumulate capital using corrupt schemes;
banking sector – corruption-related offences are committed by cooperating government and bank officials, who go for unlawful enrichment or for taking other benefits from opening banks, dealing with loans or budget funds, from portending to become a bankrupt, etc.;
government property privatization – corruption-related offences are associated with unlawful enrichment and benefits;
government ownership – embezzlement and takeover of state-owned enterprises, illegal privatization of government property.
A significant effect on the level of national corruption have also the withdrawals, facilitated by corruption in the financial sector.
Corruption-related offences as an integral part of corruption are generally associated with the organized crime, which often crosses the national boundaries. Thus, the fight against it becomes an international problem. Corruption is currently an integral and important component of organized crime, because the corruption-related offences finance and secure the organized crime. This lays favorable grounds for committing dangerous national and international crimes.
Despite the fact that new types of corruption-related offences arise as the spheres of public life develop, they can be generally grouped by orientation and ways of commitment: unlawful taking of interest; offering unlawful benefits; illegal enrichment; giving a bribe to a person holding an office and/or rendering public services; commercial bribery. Corruption-related offences usually do not go beyond these criminal acts, but their manifestations may slightly change.
As already noted, most of the national criminal codes of different countries contain regulations that establish liability for corruption-related offences (Table 1). The latter are criminal acts associated with the receipts of unlawful profit, with offering unlawful profit, with bribery, and with illegal enrichment.
Regulations Concerning Criminal Liability for Corruption-Related Offences Outlined in Some National Criminal Codes
|The Criminal Code of the Republic of Albania||
|The Criminal Code of the Republic of Moldova||
Article 324. — Passive Corruption
Article 325. — Active Corruption
|The General Civil Penal Code of Norway||
Section 111. If a public servant demands for himself or another public servant or for the public authorities any unlawful tax, duty or remuneration for services rendered or receives what is mistakenly offered to him as due in this respect, he shall be liable to imprisonment for a term not exceeding five years.
Section 112. If a public servant demands for himself or another public servant any unlawful remuneration for rendering services or is offered any… (Repealed by Act of 4 July 2003 No. 79)
Section 114. If a judge, jury, expert or specialist in such role demands for himself or another person any unlawful remuneration or is offered any… (Repealed by Act of 4 July 2003 No. 79)
Section 128. Any person who by threats attempts to induce a public servant to perform an official act unlawfully, or who is aids and abets to it, shall be liable to fines or imprisonment for a term not exceeding one year.
|The Swedish Penal Code||
Chapter 17. On Crimes against Public Activity
Section 7. A person who gives, promises or offers a bribe or other improper reward to an employee or other person defined in Chapter 20, Section 2, for the exercise of official duties, shall be sentenced for bribery to a fine or imprisonment for at most two years. (Law 1977:103)
Section 8. A person who, in an election to public office or in connection with some other exercise of suffrage in public matters, attempts to prevent voting or to tamper with its outcome or otherwise improperly influence the vote, shall be sentenced for improper activity at election to a fine or imprisonment for at most six months.
Section 17. If a bribe has been given to a person who is neither an employee of the State or a local authority nor defined by Chapter 20, Section 2, second paragraph, points 1−4, a public prosecutor may only prosecute if the crime is reported for prosecution by the employer or principal of the person exposed to bribery or if prosecution is called for in the public interest. (Law 1977:103)
Chapter 20. On Misuse of Office, etc.
Section 2. An employee who receives, accepts a promise of or demands a bribe or other improper reward for the performance of his duties, shall be sentenced for taking a bribe to a fine or imprisonment for at most two years. The same shall apply if the employee committed the act before obtaining the post or after leaving it. If the crime is gross, imprisonment for at most six years shall be imposed.
|The Criminal Code of the French Republic||
BOOK I. GENERAL PROVISIONS
TITLE III. VIOLATION OF THE AUTHORITY OF THE STATE
CHAPTER II. Offences against the Government Committed by Civil Servants
SECTION 3. Breaches to the Duty of Honesty
Sub-section 1. IMPROPER DEMANDS OR EXEMPTIONS IN RELATION TO TAXES (Article 432-10)
Sub-section 2. PASSIVE CORRUPTION AND TRADING IN INFLUENCE BY PERSONS HOLDING PUBLIC OFFICE (Article 432-11)
Sub-section 3. UNLAWFUL TAKING OF IINTEREST (Article 432-12 and Article 432-13)
|The Criminal Code of the Republic of Lithuania||
Article 225. Bribery
Article 226. Trading in Influence
Article 227. Graft
Article 228. Abuse of Office
|The Criminal Code of Ukraine (amended 2016)||
Article 368. Acceptance of an offer, promise or receipt of improper benefit by an official
Article 3682. Illicit enrichment
Article 3683. Commercial bribery of an official private legal entity, regardless of legal form
Article 3684. Bribing a person who provides public services
Article 369. Offer, promise or provision of improper benefit to an official
Article 3692. Trading in influence
Article 3693. Illegal influence on the results of official sports competitions
Article 370. Provocation of bribery
Peculiarities of the national development history are one of the key determinants of corruption [1, p. 54], as this period is a time, when the attitude to corruption is shaped and rooted. This attitude is not so much positive as bearable, in a certain way contributing to the development of this phenomenon. Another reasons behind corruption are the
- lack of political will of society that makes it impossible to enforce the anti-corruption laws in a fair and impartial manner;
- high level of regulatory bureaucracy;
- low salaries;
- low chance of tracing and punishing those, who commit corruption-related offences;
- poor culture/morality development in society.
These circumstances foster tolerance for corruption in society.
In the light of these determinants, anti-corruption measures will be effective only if they are aimed at overcoming the causes of corruption at the national level. Such measures imply:
- implementing the state policy on combating corruption that would provide for the civic institutions and population participating in the fight;
- taking control over corruption;
- applying the principle of regulatory openness and transparency;
- taking control over activities performed by officials and workers in the economic and financial sectors of public administration.
The leading measures aimed at preventing the corruption-related offences should be those that are aimed at changing the way a person should think, his/her state of mind, and at shaping the political, economic, legal and social culture of citizens. If such an environment is created, regulations on combating corruption will be effectively enforced at the national level. These anti-corruption measures are universal and must be enshrined in the legislation of all states, in particular in the legislation of Ukraine.
The lack of a single universal concept of corruption-related offence also has a negative impact on the national anti-corruption development [2, p. 363], since the lack of defined common features of corruption-related offences leads to the situation, when persons can avoid being liable for committing corruption-related offences. This, in turn, can create the illusion of impunity for corruption. Therefore, a general definition covering as much as possible features of a corruption-related offence is required.
Shaping the pervasive anti-corruption strategies requires a clear understanding of what are the corruption determinants. In particular, there are such determinants established:
- government favoritism that contributes to unlawful taking of interest or to illegal enrichment by persons favored by those, who hold a higher position;
- non-public financial information that contributes to corruption in the financial sphere;
- strictly confidential criminal cases, especially international ones (for example, terrorist attacks in the United States on September 11, 2001).
We agree with these corruption determinants that represent together with those that we have already mentioned a more or less complete picture of corruption determinants that spark corruption in the most of countries. These determinants may be present together or in part depending on the features of the state system, as well as on the features of socio-economic, political, cultural and historical development of a particular country. Such determinants can be identified at the national level through certain quantitative and qualitative indicators of corruption, as well as by investigating the characteristics of individuals, who have committed a corruption-related offence.
Identifying such determinants as universal ones in countries with a high level of corruption, as well as determining the related identification mechanisms, will contribute to more effective international national anti-corruption strategies that can be later anchored into the national regulations. This will allow the countries to choose the most acceptable and effective way to combat corruption.
At this point, we can state that anti-corruption measures have also been little studied. There is an opinion that setting up a meritocratic regime is one of the most effective ways to combat corruption in public administration [3, p. 520]. It is true that the principle of meritocracy will allow taking control over the most corrupted spheres and changing the public mind in order to make people more tolerant when it comes to corruption in all spheres of life. There was also a proposition to apply such methods that will allow avoiding a number of public agencies that prone to commit corrupt practices while the justice is in the middle of administration, namely – the proposition is about introducing a substantive appeal to a court [1, p. 62]. Its reasonability is a controversial issue – closing down these agencies that obstruct justice for corruption-related reasons would be a more reasonable thing to do. We agree with such a preventive measure as directing efforts to change the moral and cultural beliefs about corruption (and other offenses), as this will help to break the stereotypes about the necessity of committing corrupt practices in certain spheres of life. As already noted, engaging public organizations and other non-governmental associations of citizens in preventing the commitment of corruption-related offences in everyday life is also an important measure [4, p. 10], as this will greatly enhance the control over the most corrupted spheres of life. There were also propositions to:
- restrict the rights of municipal workers, since the weak control over their performance is a factor contributing to the abuse of power and to the violation of human rights [4, p. 12];
- reduce the number of workers in public administration, although such a measure is unlikely to have the expected effect on the fight against corruption.
Important steps to prevent and combat corruption are the stepwise democratization of all spheres of public life, regulatory openness and transparency and the development of effective mechanisms intended for monitoring the performance of public authorities. This list also includes the control over the financial activity of civil servants (establishing a mandatory rule for civil servants on providing detailed information on all financial assets, liabilities and relationships, receipts and commercial transactions, asset sale and purchase, etc.) [5, p. 20]. Such a measure can lead to success in combating corruption, but its application requires a clear mechanism to be designed for such a control, as well as its in-depth study.