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нет четкого и формально закрепленного представления о механизме такого подтверждения и не определены органы его осуществляющие. Остается также дискуссионным вопрос, каким должно быть подобное подтверждение государств: явно выраженное или подразумеваемое. Большинство государств исходит из подразуме-
ваемого признания, так как оно отражает сложившуюся практику [3, 80]. Подобный подход исключает лишний формализм, который может навредить действительности договора, и побуждает государства добросовестно следовать одному из главных принципов международного права pacta sunt servanda.
Список литературы:
1. Венская конвенция о дипломатических сношениях 1961 года//Ведомости Верховного Совета СССР. - 29.04.1964 г. - № 18.
2. Венская конвенция о праве международных договоров 1969 года//Ведомости Верховного Совета СССР. - 10.09.1986 г. - № 37.
3. United Nations Conference on the Law ofTreaties. 1st Session. Official Records. - NewYork. - 1969. - 531 с.
4. United Nations Conference on the Law of Treaties. 1st and 2nd Sessions. Official Records. Documents of the Conference. - New York. - 1971. - 315 с.
5. Федеральный закон «О международных договорах Российской Федерации» от 15.07.95 -№ 101-ФЗ//Собрание законодательства РФ. - 17.07.1995. - № 29.
6. Федеральный закон «О Чрезвычайном и Полномочном После Российской Федерации в иностранном государстве и Постоянном представителе (представителе, постоянном наблюдателе) Российской Федерации при международной организации (в иностранном государстве)» от 23.06.2016. -№ 186-ФЗ//Собрание законодательства РФ. - 27.06.2016. - № 26.
7. Шлянцев Д. А. Комментарий к Федеральному закону «О международных договорах Российской Федерации» (постатейный)/Информационно-правовая система «Консультант+».
8. Агешкина Н. А. Научно-практический комментарий к Федеральному закону от 15 июля - 1995 г. -№ 101-ФЗ «О международных договорах Российской Федерации»/Информационно-правовая система «Консультант+».
9. Лукашук И. И. Современное право международных договоров. - М.: Волтерс Клувер, - 2004. - Том 1. - 672 с.
DOI: http://dx.doi.org/10.20534/EJLPS-16-4-25-32
Lytvynenko Victor Ivanovich, Interregional Academy of Personnel Management, Kiev
Doctor of Law,
Director of Prince Volodymyr the Great Institute of Law
E-mail: [email protected]
International legal aspects of corruption eradication
Abstract: The article is concerned with studying the existing international legal anticorruption system. The author analyzes the universal-level international legal acts aimed at rooting out corruption, identified legal aspects of fighting corruption at the level of the European region and the world at large. Special attention is paid to the first Global Anti-Corruption Summit held in London in May 2016.
Keywords: corruption, anti-corruption activities, convention, and anticorruption measures.
Articulation of the problem in general terms.
At this time, the problem of corruption takes on global significance, appreciably hinders economic growth of states, has a pernicious effect virtually on all spheres of societal life and has a particularly negative impact on the level of enforcement of both civil and political and socioeconomic rights of individuals. Such domestic and foreign scholars as O. S. Badalova, V. D. Hvozdetskyi, T. V. Ilyenok, M. I. Karpenko, T. V. Kuznetsova, M. I. Marych, O. M. Yurchenko, O. D. Yaroshenko, N. Svenson, N. Rogers, I. S. Bakhov, M. F. Holovatyi, and others have given consideration in their works to issues of fighting corruption at both the national and international levels. However, the deplorably high level of corruption in many states of the world, including in our state, as well as the complex and integrated nature of the problem of corruption eradication determine the relevance of further thorough scholarly studies in this area.
The purpose of this scientific paper consists in comprehensive analysis of the international legal anticorruption system.
The objectives of this scientific paper include in the first place:
• analysis of the universal-level international legal acts meant to root out corruption;
• description of the legal aspects of fighting corruption at the level of a European region.
Presentation of the key findings
When analyzing the universal international legal anticorruption system, it is necessary to note that the basic premises in this area are reflected in the United Nations Convention against Transnational Organized Crime adopted by General Assembly resolution 55/25 ofNovember 15, 2000 and ratified by our state (subject to reservations) in 2004. Thus, Articles 8 and 9 of the said Convention are aimed at ensuring criminalization of acts showing signs of corruption, as well as outlining a system of measures necessary to fight the said infamous crime. In particular, provision is made for the obligation duty of the state parties to the Convention to adopt legislative and other measures as may be necessary to establish the following acts as criminal offences:
• the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage,
for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.
• the promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.
At that, the category "public official" means, for the purposes of the Convention under study, a person who provides a public service as defined in the domestic law of the State Party in which the person in question performs such functions.
At the same time, in compliance with the requirements of the Convention, the states undertake to adopt legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials. In particular, the said measures provide for ensuring effective action by competent authorities in the prevention, detection and punishment of the corruption ..., including providing such authorities with adequate independence to deter the exertion of inappropriate influence on their actions [1].
Also, it should be noted that the United Nations Convention against Corruption signed on Ukraine's behalf in 2003 in the United Mexican States in the city of Merida and ratified by our state in 2006 is one of the central universal-level international legal acts concerning fight against corruption. Consequently, our state undertook the imperative international legal obligations set forth in that Convention. Thus, the obligations in terms of corruption prevention policies and practices provide for the need to implement the following domestic measures:
• to develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability;
• to establish and promote effective practices aimed at the prevention of corruption;
• to periodically evaluate relevant legal instruments and administrative measures with a view to determining the adequacy to prevent and fight corruption;
• to collaborate with each other and with relevant international and regional organizations... That collaboration may include participation in international programs and projects aimed at the prevention of corruption.
The most important obligations of the State parties to the said Convention in the public sector provide for the need to adopt, maintain and strengthen systems for the recruitment, hiring, retention, promotion and retirement of civil servants that are based on such criteria as merit, equity and aptitude. In addition, to prevent corruption in the public sector the states undertook to ensure:
• development of adequate procedures for selection and training of individuals for public positions considered especially vulnerable to corruption and the rotation of such individuals to other positions;
• promotion of special education and training programs to enable them to meet the requirements for the correct, honorable and proper performance of public functions and to enhance their awareness of the risks of corruption inherent in the performance of their functions.
• promotion of adequate remuneration and equitable pay scales to individuals in the said positions, taking into account the level of economic development of the state party;
• promotion of integrity, honesty and responsibility among public officials, in accordance with the fundamental principles of the national legal system;
• introduction and application of codes or standards of conduct for the correct, honorable and proper performance of public functions.
• accountability of the state to society, in particular, enhancement of transparency in its public administration, including with regard to its organization, functioning and decision-making processes.
It should be noted that based on provisions of the said Convention a system of measures is provided for the state parties, implementation of which will facilitate prevention of corruption in the public sector. Measures to achieve these may include, inter alia:
• promoting cooperation between law enforcement agencies and relevant private entities;
• promoting the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for
the correct, honorable and proper performance of the activities of business and all relevant professions, and for the promotion of the use of good commercial practices among businesses and in the contractual relations of businesses with the state;
• preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licenses granted by public authorities for commercial activities;
• ensuring that private entities have sufficient internal auditing controls to assist in preventing and detecting acts of corruption; and
• ensuring that the accounts and required financial statements of such private entities are subject to appropriate auditing and certification procedures.
It should be noted that the Convention under study gives individual attention to the need for criminalization by the states parties of such acts as bribery of national public officials, bribery of foreign public officials and officials ofpublic international organizations, as well as embezzlement, misappropriation or other diversion of property by a public official [2].
Furthermore, it is important to note that the Declaration adopted at the 11th UN Congress on Crime Prevention and Criminal Justice held April 18-25, 2005 in Bangkok plays a significant role in development of the system of international cooperation for fight against crime in spite of the optional nature of its provisions. Particular provisions of the said Declaration are devoted to corruption eradication. Thus, pursuant to paragraph 24 of the Declaration, the rule of law in the state, as well as the proper management of public affairs and public property, is essential to the prevention and control of corruption. Besides, according to the Declaration, in order to curb corruption, it is necessary to promote a culture of integrity and accountability in both the public and the private sectors along with effective measures for its investigation and prosecution [3]. It is necessary to point out that the above provisions of the Declaration almost entirely correspond to the requirements of the UN Convention against Corruption and clarify them.
When studying the current system of measures, the world community applies to root out corruption at the universal level, it must be noted that on the initiative of British Prime Minister David
Cameron London hosted in May 2016 the first global Anti-Corruption Summit. Representatives of more than forty states of the world participated in it.
The summit is a chance to do something different, and better. It is probably the first summit of world leaders to be focused exclusively on tackling corruption. Most anti-corruption summits have failed in the past because the governments that turn up do not want them to work," — Robert Barrington, Executive Director of the UK chapter of Transparency International, wrote as early as in January. — "The elephant in the room is that some governments are themselves seriously corrupt, and so — naturally — do not want global progress in reducing grand corruption" [4].
The summit shifted the focus on global corruption, turning the spotlight away from oligarchs and corrupt dictators and toward the rich countries, whose banks and real estate brokers were the benefactors of the stolen wealth of nations. "Tens of billions of dollars in stolen money — funds that could be used for education or building bridges in underdeveloped lands — instead are hidden in secret bank accounts of various countries, including our own," — the Voice of America quotes U. S. Secretary of State John Kerry. — We are fighting a battle — all of us — for our states, for our countries, for our nation states. Corruption is as much of an enemy of our countries because it destroys nation states as some of the extremists we are fighting. The extremism we see in the world today comes in no small degree from the utter exasperation that people have with the sense that the system is rigged" [5].
The International Monetary Fund also did not sidestep the problem of corruption. As research results of this financial organization show, public sector corruption siphons 1.5 trillion to 2 trillion US dollars annually from the global economy. According to Managing Director of the International Monetary Fund Christine Lagarde, "corruption has a broader corrosive impact on society. It undermines trust in government and erodes the ethical standards of private citizens" [6].
Minister ofJustice of Ukraine P. D. Petrenko led the Ukrainian delegation. Delegates of the participating states with the participation of the Managing Director of the International Monetary Fund,
President of the World Bank, and President of the international anti-corruption organization Transparency International discussed at the Summit key anti-corruption issues at the global level. Thus, the Summit participants agreed the basic anticorruption principles, which provided for, in particular:
• intensification of data exchange among law enforcement agencies and banks of the states;
• provision of access to the registers of beneficiaries of companies; and;
• visa denial if there is reasonable suspicion of corruption.
It is significant that our state adhered to the Communique of the Global Anti-Corruption Summit and undertook to implement its provisions and pursue priority moves to fight corruption articulated at the Summit for implementation of a new AntiCorruption Strategy and Action Plan to be adopted in 2017. Having supported the above-mentioned Communique, our state undertook to provide the following anti-corruption measures involving public authorities, primarily the State Fiscal Service:
• implementation of FATF's global standards to combat money laundering;
• ensuring accurate beneficial ownership information;
• cutting down opportunities for corruption in high-risk areas; and
• establishing and maintaining cooperation with other countries, international organizations and civil society in implementation of international standards of anti-corruption activities [7].
The foregoing UN regulatory enactments play a significant role in the development of common European criminal legislation in the sphere of anti-corruption efforts, which is quite often mentioned in the preambles to regulatory enactments of the UN and Council of Europe. When adopting appropriate documents, these international organizations take into account the standards set by UN criminal legislation occasionally somewhat raising or specifying them.
The Criminal Law Convention on Corruption of 1999 and Additional Protocol to it of 2003, Civil Law Convention on Corruption of 1999 are among the most important acts of the Council of Europe in the fighting corruption area. Ukraine ratified these international acts in 2006.
The Criminal Law Convention on Corruption of 1999 does not give a general definition of the term "corruption" and thus the concept of "corruption" is considered for the purposes of this document based on domestic legislation of the States Parties.
The Convention refers to corruption and requires criminalization of such illegal acts as active (art. 2) and passive (art. 3) bribery of domestic public officials, bribery of members of domestic public assemblies (art. 4), bribery of foreign public officials (art. 5), bribery of members of foreign public assemblies (art. 6), active (art. 7) an passive (art. 8) bribery in the private sector, bribery of officials of international organizations (art. 9), bribery of members of international parliamentary assemblies (art. 10), bribery of judges and officials on international courts (art. 11), trading in influence (art. 12), money laundering ofproceeds from corruption offences (art. 13), account offences (art. 14), and participatory acts (art. 15). It should be added that the Convention enables the states parties to reserve the right not to establish as a criminal offence, in part or in whole, the conduct referred to in Articles 4, 6 to 8, 10 and 12 or that involving bribe-taking and defined in Article 5 [8].
Like the UN Convention of2003, this document provides for corporate liability (art. 18)
Under the Convention, the states parties shall be bound to:
• provide proportionate, effective and dissuasive sanctions and measures, including, when committed by natural persons, penalties involving deprivation of liberty which can give rise to extradition;
• ensure that legal persons held liable in accordance with provisions of the Convention shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions;
• adopt such measures as may be necessary to ensure that persons or entities are specialized in the fight against corruption. They shall have the necessary independence while the staff of such entities shall have adequate training and financial resources for their tasks;
• adopt such measures as may be necessary to ensure that public authorities, as well as any public official, cooperate, in accordance with national law,
with those of a state's authorities responsible for investigating and prosecuting criminal offences;
• adopt such measures as may be necessary to provide effective and appropriate protection for those who cooperate with the investigating or prosecuting authorities and witnesses.
The Group of States against Corruption (GRECO) shall monitor the implementation of the Convention by the Parties. The evaluation procedures conducted by GRECO are set forth in its Statute.
This document stipulates that the signatories to the Convention shall promptly cooperate with each other, in accordance with the provisions of relevant international instruments on international cooperation in criminal matters, or arrangements agreed on the basis of uniform or reciprocal legislation. If Parties are not signatories to international instruments on international cooperation in criminal matters, the Convention provides for an appropriate mechanism for cooperation to investigate and prosecute of criminal offences mentioned in the Convention. For that end, the document contains general conditions of mutual assistance, extradition, provision of information by mutual initiative, designation of a central authority (or, if appropriate, several central authorities) responsible for sending and answering requests and the execution of such requests.
The Additional Protocol (2003) to the Criminal Law Convention on Corruption of 1999 provides for establishing as criminal offences giving and receipt of bribe by arbitrators and bribery of jurors [9].
The Civil Law Convention on Corruption of 1999 is aimed at enabling persons who have suffered damage as a result of acts of corruption to defend their rights and interests, including the possibility of obtaining compensation for damage.
The document gives a general definition of the term "corruption," however, only for the purpose of this Convention.
In accordance with the Convention, each party undertook to:
• provide in its internal law for persons who have suffered damage as a result of corruption to have the right to initiate an action in order to obtain full compensation for such damage (material damage, loss of profits and non-pecuniary loss);
• provide in its internal law for such conditions to be fulfilled in order for the damage to be compensated as: the defendant has committed or authorized the act of corruption, or failed to take reasonable steps to prevent the act of corruption; the plaintiff has suffered damage; and there is a causal link between the act of corruption and the damage;
• provide in its internal law for appropriate procedures for persons who have suffered damage as a result of an act of corruption by its public officials in the exercise of their functions to claim for compensation from the state or, in the case of a non-state party, from the party's appropriate authorities;
• provide in its internal law for appropriate protection against any unjustified sanction for employees who have reasonable grounds to suspect corruption and who report in good faith their suspicion to responsible persons or authorities;
• provide in its internal law for effective procedures for the acquisition of evidence in civil proceedings arising from an act of corruption; and
• cooperate effectively in matters relating to civil proceedings in cases of corruption.
The Convention provides for the recovery of damages to be subject to a limitation period of no less than 3 years from the day of the person who has suffered damage became aware or should reasonably have been aware, that damage has occurred or that an act of corruption has taken place, and of the identity of the responsible person. However, such proceedings hall not be commenced after the end of a limitation period of no less than 10 from the date of the act of corruption [10].
The Group of States against Corruption (GRECO) is charged with monitoring the parties' implementation of the Convention.
The Convention on the Protection of the European Communities' Financial Interests of 1995 and Additional Protocol № 1 to it, Convention against Corruption Involving Officials of the European Communities or Officials ofMember States of the European Union of 1997, and Framework Decision on Combating Corruption in the Private Sector of2002 stand distinctive among the EU documents in this sphere.
The Convention on the Protection ofthe European Communities' Financial Interests of 1995 defines corruption as bribery (in the context of abuse of office).
The parties to the Convention undertook to:
• ensure that their criminal laws make the criminal offences provided for by the Convention punishable with effective, proportionate and dissuasive criminal penalties;
• establish jurisdiction of the national courts with reference to law of the state where a suspect (accused) resides or whose national he is;
• ensure prosecution and indictment of their own nationals in case of refusal of extradition.
Article 3 outlines the issues relating to criminal liability of heads of businesses [11].
The Protocol № 1 (96/C313/0127 1997) defines the concept of punishable corruption and grounds of liability for corruption, as well as provides for harmonized sanctions for this offence. Article 2 gives definitions of two types of corruption — passive and active. Acts of corruption may be committed by officials employed by the European Communities (now — European Union) or by member states (which means national officials of the member states participating in allocation of the EU's funds). Members of bodies of the EU are not officials but are also treated as those running the corruption risk (in this case, they are equaled to officials of relevant authorities of member states).
The general rule is that corruption cases are subject to consideration at the place of crime, and the EU member states may extend operation of their national criminal laws to acts of corruption of their nationals committed within the EU territory [12].
Punishment for the said offences, in addition to other measures, must include deprivation ofliberty.
The scope of the Convention against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union of 1997 is broader than that of the Protocol № 1 to the Convention on the Protection of the European Communities' Financial Interests of 1995. It included in the concept of European corruption those acts that do damage not only to the Communities' (now -Union's) financial interests.
The terms in this Convention are mainly similar to those contained in the Protocol № 1 to the Convention of 1995. However, the Convention of 1997 extends the concept of corruption including into it a wide range of acts.
The primary importance of this Convention is that it provides for improving cooperation of the member countries in the fight against corruption and opens up new procedural opportunities for prosecution of offenders [13].
The Framework Decision on Combating Corruption in the Private Sector of2002/246 articulates the concept of active and passive corruption in the private sector.
In accordance with this Framework Decision, the EU member states are bound to:
• take the necessary measures to ensure that active and passive corruption in the private sector, as well as instigating, aiding and abetting such acts constitute a criminal offence;
• take the necessary measures to ensure that such offences are punishable by effective, proportionate and dissuasive criminal penalties;
• take the necessary measures to ensure that such acts are punishable by a penalty of maximum of at least one to three years of imprisonment;
• take the necessary measures to ensure that legal persons can be held liable;
• take the necessary measures to ensure that a legal person held liable for offences as specified in this document is punishable by effective, proportionate and dissuasive penalties, which include criminal and administrative fines and may include other penalties as set forth in the document.
The Framework Decision leaves the EU member countries the possibility of certain departures from its provisions in the area of establishing national jurisdiction with respect to acts of corruption in the private sector [14].
Conclusions
Common European criminal law, including in the sphere of combatting corruption, follows the path of harmonization rather than unification of national laws, more precisely — that of "minimum harmonization." The mixed nature of regulation of fighting corruption in the EU and CE, on the one hand, creates a legal framework for combatting this type of offenses. On the other hand, it facilitates shaping same criminal policies in this sphere in the member states.
Consequently, based on the foregoing, it is possible to note availability of a sizable regulatory collection of international legal acts concerning corruption eradication at the universal level. It should be noted, however, that the provisions of the UN international legal acts related to the issue under study are set out rather in a generalized sense, which makes it possible to clarify and amplify them at the regional level and at the level of domestic laws of the member states. At the same time, separation of business from politics and political will of the highest-ranking civil servants constitute a prerequisite for effective implementation of the above studied universal and regional international legal acts at the national level.
References:
1. Against Transnational Organized Crime. United Nations Convention of15.11.2000//0fficial Bulletin of Ukraine of19.04.2006. - No 14, - P. 340.
2. Against Corruption. United Nations Convention of 31.10.2003//0fficial Bulletin of the Verkhovna Rada of Ukraine (OBVR), - 2007, - No 49.
3. On Crime Prevention and Criminal Justice. United Nations Declaration of 25.04.2005. - [Electronic resource]. Access mode: URL: http://zakon5.rada.gov.ua/laws/show/995_e87
4. World Leaders Pledge to Tackle Corruption at London Summit - as it happened. By Jessica Elgot 12 May 2016 16:16 PM [Electronic resource]//Website of The Guardian newspaper. - Access mode: URL: http://www.theguardian.com/politics/live/2016/may/12/david-cameron-london-anti-corruption-summit-live
5. US, Britain Share Blame for 'Pandemic' Corruption at London Summit. May 12, 2016 10:06 PM [Electronic resource]//Website of the Voice ofAmerica. - Access mode: URL: http://www.voanews. com/a/kerry-could-face-barbs-anti-corruption-summit/3326360.html
6. IMF: Global Corruption Costs Trillions in Bribes, Lost Growth. May 11, - 2016 [Electronic resourced/Website of Reuters agency. - Access mode: URL: http://www.reuters.com/article/us-imf-corruption-idUSKCN0Y22B7
7. Ukraine acceded to the Anti-Corruption Summit Communique in London. [Electronic resource]. Access mode: ua.censor.net.ua/news/388193/ukrayina_pryyednalasya_do_deklaratsiyi_
8. Criminal Law Convention on Corruption of - 1999//The Official Bulletin of Ukraine of 15.03.20062006, - No 9, - P. 252.
9. Additional Protocol - No 1 of - 2003 to the Criminal Law Convention on Corruption of - 2003//0f-ficial Bulletin of Ukraine of12.03.2010-2010, - No 15/ - No 44, - 2006, - art. 2940/ - P. 54.
10. Civil Law Convention on Corruption of- 1999//0fficial Bulletin ofUkraine of15.03.2006. - No 9, - P. 252.
11. Convention on the Protection of the European Communities' Financial Interests of - 1995. - [Electronic resource]. Access mode: URL://http://old.minjust.gou.ua>file.
12. Protocol to the Convention on the Protection of the European Communities' Financial Interests of -1995. - [Electronic resource]. Access mode: URL://http://old.minjust.gou.ua>file.
13. Convention against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union of - 1997. - [Electronic resource]. Access mode: URL://http://eu-law/edu.ru/documents/legislation/law_defence.htm.
14. Framework Decision on Combating Corruption in the Private Sector of - 2002//Journal Officiel de l'Union Européenne L 192 du 31.7.2003, - P. 54.
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DOI: http://dx.doi.org/10.20534/EJLPS-16-4-32-36
Matej Savic,
Docent Dr. Sci., professor of International Law, University of Banja Luka, Faculty of Political Sciences,
E-mail: [email protected]
Contemporary issues of legal personality in international law. Factual and normative problems
Abstract: In this paper, the author deals with current theoretical issues of international legal personality. Special attention is paid to the growing conflict between the factual and normative dimensions of general legal capacity of subjects of international law. Contemporary trends and respective theoretical concepts are analyzed, especially regarding actual processes and challenges that are imposed in the definition of legal personality in international law.
Keywords: legal personality, international law, entity, legal capacity, legal capabilities, states, international organizations, rights and duties (obligations).
1. General definition of legal personality in in- on the international scene and they are different
ternational law. from what is happening within the national borders
Legal personality in international law (interna- [1, 68]. In order to define legal personality in inter-
tional legal personality) is in many ways a specific national law, we must analyze diverse entities and
notion; it is certainly conditioned by the nature their rights and duties, legal capacity in general and
of international law, which is differing substantially requirements that arise in international legal rela-
from the municipal law. This is due to the fact that in- tions. "In municipal law individuals, limited compa-
ternational law regulates the relations that take place nies and public corporations are recognized as each
