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JURISPRUDENCE / «COLyOMUM-JMTMaL» #36(123), 2©21
JURISPRUDENCE
UDK: 342.95 + 340.137.3
Koreneva Kateryna Kharkiv National University of Internal Affairs DOI: 10.24412/2520-6990-2021-35122-10-12
INTERNATIONAL STANDARDS AS A BASIS FOR IMPROVING THE CORRUPTION RISK ASSESSMENT SYSTEM IN THE OPERATIONS OF THE PROSECUTOR'S OFFICE OF UKRAINE
Abstract.
The article systematizes and discusses international standards for managing corruption risks, which should become the basis for the formation of a system for assessing corruption risks in the work of the prosecutor's office of Ukraine. The general features of the definition of corruption risks in accordance with international standards and methodology for assessing corruption risks in Ukraine have been established. The obvious imperfection of the national normative legal regulation of management (assessment) of corruption risks was determined, as a result of which proposals were formulated for its improvement. It is noted that the relevant proposals will significantly increase the efficiency and objectivity of the assessment of corruption risks in the activities of the authorities in general and the prosecutor's office in particular.
Keywords: corruption risks, international standards, assessment of corruption risks, corruption risk management, principles, private interest.
The new stage of the anti-corruption reform in Ukraine (since October 14, 2014) can be characterized by: the expansion of the terminological apparatus of public relations in the field of preventing and combating corruption. Among the terms that were introduced into circulation by the Law of Ukraine "On the Prevention of Corruption" [1], a special place is occupied by "corruption risk", the timely identification of which makes it possible to prevent the commission of not only corruption, but even corruption-related offenses by government officials.
Within the powers stipulated in clause 11, part 1 of Art. 12 of the Law of Ukraine "On the Prevention of Corruption", the National Agency for the Prevention of Corruption, in order to ensure a unified approach in government bodies to the organization of work on assessing corruption risks arising in the exercise of their powers, approved the Methodology for assessing corruption risks in the activities of government bodies, (decision dated December 02, 2016 № 126 (hereinafter referred to as the Corruption Risk Assessment Methodology [2]).
It should be noted that since the Corruption Risk Assessment Methodology is aimed at defining a single set of rules and procedures for assessing corruption risks in the preparation of anti-corruption programs, that is, it is of a purely utilitarian nature, we believe that the methodological approaches proposed in it to the identification and assessment of corruption risks should be consistent with international standards for risk management and guarantee the preparation by the authorities of anti-corruption program documents of the appropriate level of quality and in accordance with modern trends in this area.
World practice has accumulated extensive experience in the development and implementation of risk management standards. Having analyzed the specialized literature on this topic, we can single out three of the most widespread standards of risk management in management activities in the world.
1. In 2001, the Committee of Sponsoring Organizations of the Treadway Commission (COSO), together with PriceWaterHouseCoopers, initiated a project to develop the principles of risk management (Enterprise Risk Management -Integrated Framework). In accordance with the developed principles, risk management is: a process covering all activities of an enterprise, in which employees are involved at different levels of management; a tool with which you can achieve the set strategic goals; risk identification and management technology; a way to insure the company's activities against possible mistakes in management or from making irrational decisions by the board of directors.
2. Later, the COSO II Standard was developed, aimed at: determining the levels of risk in accordance with the development strategy; improving decision-making processes for responding to emerging risks; reduction in the number of unforeseen events and losses in economic activity; determination of the entire set of risks; management of the entire set of risks; taking advantage of opportunities; rational use of capital. Note that the comprehensive foundations of risk management of the COSO II Standard became the methodological basis for the development of the Basic Principles for the Implementation of Internal Control by the Administrators of Budgetary Funds, approved by the Resolution of the Cabinet of Ministers of Ukraine dated 12.12.2018 № 1062 [3], in which risk management is referred to the system of internal control and is defined as "the activities of the management and employees of the institution to identify risks, assess them, determine how to respond to identified and assessed risks, revise the identified and assessed risks to identify new and undergone changes" [3]. It is the principles of the COSO II Standard that underlie the development of the internal control system of the prosecutor's office as a manager of budgetary funds.
3. The result of the standardization of risk management at the international level was the development
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and emergence of 2009 of the ISO 31000: 2009 standard "Risk management - Principles and guidelines on implementation" [4, p. 69]. Subsequently, the revised ISO 31000: 2018 standard was adopted as a national standard by more than 50 national standards bodies, covering more than 70% of the world's population. In Ukraine, a corresponding analogue of DSTU ISO 31000: 2018 "Risk Management. Principles and Instruction" [5]. According to its provisions, the concepts of "risk management" and "managing risk" are clearly delineated. In particular, risk management is defined as a component of the overall management culture of an organization, based on a risk-based approach (i.e., risk management at the institutional level); risk management - coordinated actions to manage the organization in relation to risks (i.e., risk management at the operational level) [5].
Risk assessment according to ISO 31000: 2018 consists of three stages: identification, analysis, direct assessment. The risk assessment process should be systematic. The stage of risk analysis is associated with the study of each type of risk, its consequences and the probabilities of these consequences. After risk assessment, a decision is made to determine the level of risk and, according to pre-established criteria, priority risks are determined.
As a result of the analysis of the main provisions of the documents under consideration, it can be concluded that the general signs of risk determination are the likelihood of an event occurring, which will have both a negative and a positive impact on the institution's ability to achieve certain goals (mission), strategic and other goals of activity. At the same time, important signs of corruption risk are that they always have the likelihood of committing a corruption offense and the occurrence of extremely negative consequences for the purposes of the institution's activities.
At the same time, the study of the methodology for assessing corruption risks indicates that the provisions of international risk management standards have not found their proper expression in the national legal regulation. In particular, the current legal framework almost does not operate with the terminology of the relevant standards, in particular, the concepts of "risk management", "risk management", etc. are not fixed. Therefore, based on the provisions of the above standards and aiming to improve the current national regulatory framework for assessing corruption risks, we consider it appropriate to:
1) improve the system of public administration measures by introducing and disclosing the content of the concepts of "risk management" and "corruption risk management" at the normative level, which is fully consistent with international practice and is an important component of the further development of an effective anti-corruption strategy in Ukraine, the adoption of which, among other things, has been delayed since 2017. To do this, it is necessary to take into account the provisions of the ISO 31000: 2018 standard, which clearly distinguishes between the concepts of "risk management" and "managing risk";
2) guided by the provisions of the ISO 31000: 2018 standard, improve the methodology for assessing corruption risks in terms of optimizing the corruption risk management process, which should include the following stages: organizational and preparatory measures; identification (detection) of corruption risks; assessment of corruption risks; determination of measures to respond to corruption risks; monitoring and periodic viewing. As a result, the Corruption Risk Assessment Methodology requires improvement by supplementing it with separate sections: "Determination of measures to respond to corruption risks", "Monitoring and periodic review of corruption risks";
3) in order to ensure a unified approach and a clear understanding of the legal basis for assessing corruption risks, supplement the Methodology for assessing corruption risks with the following principles: 3.1) legality - the process of determining corruption risks must comply with the provisions of legislative acts and the Methodology for assessing corruption risks; 3.2) analysis and study - the need for a systematic assessment of corruption risks, revision and adjustment of internal policies and procedures for their identification and elimination; 3.3) objectivity - the identified corruption risks should relate to events of a corruption offense or an offense related to corruption that negatively affect the achievement of certain goals and objectives by the government; 3.4) dynamism - risks can arise, change or disappear as the external and internal environment of the authority changes. Accordingly, the risk management system should promptly and properly predict, identify, confirm and respond to relevant changes and events; 3.5) continuous improvement - the risk management process is constantly being improved through training and learning from positive experience; 3.6) responsibility - awareness of the importance of decisions and measures taken to eliminate corruption risks; 3.7) effectiveness - an objective assessment of possible corruption risks, taking the necessary measures within the powers of the authorized unit (authorized person) and the head of the institution;
4) to reconsider the classification of "private interest of officials" as corruption risk factors in the understanding of Application 2 to the Methodological Recommendations for the preparation of anti-corruption programs of authorities approved by the decision of the National Agency for the Prevention of Corruption dated January 19, 2017 № 31 [6]. Accordingly, referring to private interest as a corruption factor in no way ensures the allocation of specific tools for influencing corruption risks caused by such a factor.
Conclusions. International standards in the context of Ukraine's European integration aspirations are traditionally perceived as a standard of legal regulation. And the analysis of the national legal regulation of management (assessment) of corruption risks showed its obvious imperfection, which resulted in the formulation of proposals for its improvement. The latter will significantly increase the efficiency and objectivity of assessing corruption risks in the activities of the authorities in general and the prosecutor's office in particular, which is a promising direction for further scientific research.
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References
1. Pro zapobihannia koruptsii Pro zapobihannia koruptsii [On the prevention of corruption] : Zakon Ukrainy [Law of Ukraine] vid 14.10.2014 № 1700-VII. Vidomosti Verkhovnoi Rady Ukrainy. 2014. № 49. st. 2056 (in Ukrainian)
2. Pro zatverdzhennia Metodolohii otsiniuvannia koruptsiinykh ryzykiv u diialnosti orhaniv vlady [About the statement of Methodology otsiniuvaniye of corruption risks in activity of authorities] : rishennia Natsionalnoho ahenstva z pytan zapobihannia koruptsii [decision of Natinal Agency on Corruption Prevention] vid 02.12.2016 № 126. Ofitsiinyi visnyk Ukrainy. 2017. № 4. st. 811 (in Ukrainian)
3. Pro zatverdzhennia Osnovnykh zasad zdiisnennia vnutrishnoho kontroliu rozporiadnykamy biudzhetnykh koshtiv ta vnesennia zmin do postanovy Kabinetu Ministriv Ukrainy vid 28 veresnia 2011 r. № 1001 [On approval of the Basic Principles of Internal Control by Budget Managers and Amendments to the Resolution of the Cabinet of Ministers of Ukraine of September 28, 2011 № 1001] : postanova Kabinetu
Ministriv Ukrainy [resolution of the Cabinet of Ministers of Ukraine] vid 12.12.2018 № 1062. Ofitsiinyi visnyk Ukrainy. 2018. № 100. st. 53
4. Dudnieva Yu. E. Problems and prospects of implementation of risk management standards in Ukraine [Problemy ta perspektyvy vprovadzhennia standartiv ryzyk-menedzhmentu v Ukraini]. Visnyk Natsionalnoho tekhnichnoho universytetu «KhPI», 2014, No 4 (1047), p. 67-73
5. Ukrainian Research and Training Center of Standardization, Certification and Quality, 2019. DSTU ISO 31000:2018 Risk management. Principles and guidelines. Kyiv: DP «UkrNDNTs»
6. Pro zatverdzhennia Metodychnykh rekomendatsii shchodo pidhotovky antykoruptsiinykh prohram orhaniv vlady [About the statement of Methodical recommendations concerning preparation of anti-corruption programs of authorities] : rishennia Natsionalnoho ahenstva z pytan zapobihannia koruptsii [decision of Natinal Agency on Corruption Prevention] vid 19.01.2017 № 31. Available at https://zakon.rada.gov.ua/rada/show/v0031884-17#Text (in Ukrainian)
УДК 343.9
Машкович Н. К., Панов А. С.,
Башкирский Государственный Университет Научный руководитель: Егорышева Е. А.
Доцент, кандидат юридических наук
НРАВСТВЕННЫЕ ОСНОВЫ ДОПРОСА
Mashkovich N.K., Panov A. S., Bashkir State University Scientific director: Egorysheva E. A.
MORAL BASIS OF INTERROGATION
Аннотация.
В данной статье рассматриваются нравственные аспекты производства допроса, приводятся примеры недопустимого поведения следователей при производстве допроса, а также учитываются некоторые особенности допроса несовершеннолетних.
Abstract.
This article examines the moral aspects of interrogation, provides examples of inappropriate behavior of investigators during interrogation, and also takes into account some of the features of interrogation of minors.
Ключевые слова: допрос, нравственные основы, насилие, моральные требования. Keywords: interrogation, moral foundations, violence, moral requirements.
Для успешного раскрытия преступлений часто приходится проводить большой объем работы, который включает в себя различные следственные действия. На наш взгляд, самым сложным и одновременно наиболее важным из них является допрос.
Уголовно-процессуальный кодекс Российской Федерации (далее-УПК РФ) устанавливает основы проведения допроса. Глава 26 УПК РФ регламентирует общие правила проведения допроса, выбора места и времени. По общему правилу «допрос проводится по месту производства предварительного
следствия», также следователь наделен правом выбрать локацию проведения следственного действия. Например, в месте нахождения допрашиваемого. Целью данного правила является соответствие требованиям, предъявляемых к обстановке.
Статья 187 УПК РФ ограничивает продолжительность проведения допроса. Допрос не может длиться непрерывно более 4 часов, а общее время допроса не может превышать 8 часов, без учета времени на отдых и биологические нужды.
