Research Article: 2018 Vol: 21 Issue: 4
Roman Veresha, The Academy of Advocacy of Ukraine
The purpose of this research is to define the concept of corruption-related offence, as well as to articulate the universal measures for preventing corruption at the international and national levels. Anti-corruption measures come in two types: repressive measures and preventive measures. Although the best can be achieved only if combining them, the major path towards defeating corruption is a working out of a prevention strategy. 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, Corruption-Related Offence, Corruption Determinants, Government Regulation in the Field of Combating Corruption, Legal Regulation, Civic Institutions, Corruption Prevention Strategies.
Corruption-related offences are one of the most dangerous manifestations of corruption (Bogolib, 2015). These offences undermine the principle of the rule of law, weaken the political stability and social cohesion, raise the bar for economic development and step on the work of government machinery (Hadi et al., 2016). In particular, some confidential cases, especially international cases, were determined to have a direct effect on the level of corruption that, in turn, negatively affects the democratic principles and the rule of law, and promotes the spread of corruption-related offences (Greg, 2017). That is why most countries are on the side of enshrining certain types of corruption-related offences in the legislation. Thus, shaping the corruption prevention strategies is a recent problem, as they will help to articulate some universal recommendations on combating corruption both at the international and at the national levels.
determining the significance of public control as a tool intended for counteracting corruption, it was revealed that the government authorities should implement a policy that would imply the participation of civic institutions and population in combating corruption. They also should jump into forming and establishing the public control over corruption (Ageev & Khuzina, 2016). In order to reduce the level of corruption, it was given a criminological characteristic supported by a concept of a criminal act of corruption stating that a control should be taken over the activities performed by officials, and over the size of their allowances (Gumerov et al., 2016).
Much attention was drawn to the study of corruption in various spheres of government regulation, since a number of specific tools must be worked out in order to combat corruption in each of them. Since the analysis revealed that education is a particularly corrupted sphere, it has been revealed that this is one of those sectors that generate corruption in the first place (Abramov & Sokolov, 2017). According to scientists, rights of municipal workers (Ageev and Khuzina, 2016) and local authorities (Bernardino et al., 2015) should be restricted in order to combat the corruption-related offences. Public procurement is recognized as one of the risk spheres when it comes to corruption-related offences (Fazekas et al., 2016). Researchers also determined the role of the open financial information in taking control over corruption (based on indices recorded in 91 countries) (Vargas and Schlutz, 2016).
Nevertheless, even when some studies are defining the concept, classifying the corruption-related offences and prescribing punishment for corrupt practices, researchers generally do not consider these problems without touching the general aspects of corruption. Thus, authors defining the concept and types of corruption-related offences focus on the particular danger of corruption as a social phenomenon for the international community (Bogolib, 2015).
Preventive anti-corruption measures, which are undertaken together with repressive measures, occupy a special place in the fight against corruption. The researchers emphasize this aspect, defining prevention as an effective tool to reduce corruption (Prevention: An Effective Tool to Reduce Corruption, 1999). For the significance of preventive measures speaks the existence of other related publications (Internal control, preventing and fighting corruption, 2008).
Therefore, we tend to define the concept of corruption-related offence at the national and interethnic levels, to prove that enshrining it in the current criminal legislation is a reasonable measure, as well as to solve the problem of articulating the universal corruption prevention strategies.
The methodological research basis includes the specific statistical data on corruption-related crimes as one of the most dangerous and widespread types of crime. These statistics relate to specific countries that highlight their levels of corruption.
Thus, these data allowed identifying the most and less corrupted countries (Corruption Perceptions Index, 2017). From data available, it follows that corruption in these countries has remained pretty much at the same level over the past five years (Table 1)
Level Of Corruption
Source: Adapted from Transparency International. 25 January 2017.
The methodological research basis also includes data on the impact of special anti-corruption strategies designed to counteract the spread and boost the fight against corruption-related crimes. The list of these anti-corruption strategies includes six major strategies, developed by the director of the Global Indicators Group at the World Bank Group (Lopez-Claros, 2014). The analysis was applied to ten tips drawn up to stop and prevent further manifestations of corruption-related crimes (How to Stop Corruption, 2018) and five key ingredients to stop corruption from striking in the future (How to Stop Corruption, 2016).
Although all these measures have been developed for socially, economically and politically developed countries, most of them can be applied to counter corruption in countries with a lower level of development.
Developing of anti-corruption measures was guided by a number of international and national regulations that established basic provisions for combating this disturbing phenomenon.
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 favourable conditions and adapts to changes that occur in society (socio-economic, political and 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 favour 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:
1. 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.
2. 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.
3. Government property privatization-corruption-related offences are associated with unlawful enrichment and benefits.
4. Government ownership-embezzlement and takeover of state-owned enterprises, illegal privatization of government property.
Significant effects 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 favourable 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.
Considering the socially destructive character of corruption-related crimes and its wide incidence, almost all countries have a repressive anti-corruption tool. As already noted, most of the national criminal codes of different countries contain regulations that establish liability for corruption-related offences (Table 2). 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||Active Corruption:
Article 164/a-In the Private Sector.
Article 244-Of Persons Exercising Public Functions.
Article 244/a-Of Foreign Public Officials.
Article 245-Of High State Officials and Local Elected Officials.
Article 312-Of the Witness, Expert or Interpreter.
Article 319-Of Judges, Prosecutors and Other Justice Officials.
Article 319/a-Of a Judge or Official of International Courts.
Article 319/b-Of a Domestic and Foreign Arbiter.
Article 319/c-Of Members of the Foreign Courts Juries.
Article 164/b-In the Private Sector.
Article 259-By Persons Exercising Public Functions.
Article 259/a-Of Foreign Public Officials.
Article 260-By High State Officials and Local Elected Officials.
Article 319/?-Of Judges, Prosecutors and Other Justice Officials.
Article 319/d-Of a Judge or Official of International Courts.
Article 319/dh-Of a Domestic and Foreign Arbiter.
Article 319/e-Of Members of the Foreign Courts Juries.
|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 Interest (Article 432-12 and Article 432-13).
|The Criminal Code of the Republic of Lithuania||Article 225-Bribery.
Article 226-Trading in Influence.
Article 228-Abuse of Office.
|The Criminal Code of Ukraine
|Article 368-Acceptance of an offer, promise or receipt of improper benefit by an official.
Article 368-Illicit enrichment.
Article 368-Commercial bribery of an official private legal entity, regardless of legal form.
Article 368-Bribing a person who provides public services.
Article 369-Offer, promise or provision of improper benefit to an official
Article 369-Trading in influence.
Article 369-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 (Shashkova, 2015), 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. Other reasons behind corruption are:
1. Lack of political will of society that makes it impossible to enforce the anti-corruption laws in a fair and impartial manner.
2. High level of regulatory bureaucracy.
3. Low salaries.
4. Low chance of tracing and punishing those, who commit corruption-related offences.
5. 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:
1. Implementing the state policy on combating corruption that would provide for the civic institutions and population participating in the fight.
2. Taking control over corruption.
3. Applying the principle of regulatory openness and transparency.
4. Taking control over activities performed by officials and workers in the economic and financial sectors of public administration.
Besides the repressive measures, which imply a strict criminal responsibility, there are less radical, but more effective ones, defined as preventive measures. These measures can be developed within the framework of a wide criminological research, which includes the analysis of corruption indicators, determinants, dynamics, etc. (Gumerov et al., 2015). Nevertheless, as preventive strategy development is usually the subject of separate studies (Preventing corruption, 2017).
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.
Enshrining the concept of a corruption-related offence in the legislation is one of debatable issues. The reasonability of such a step is evidenced by the existence of terms "corruption" and "corruption offence" that are outlined in a number of national and international regulations and acts (Table 3).
National And International Anti-Corruption Regulations And Acts
|The USA||• Inter-American Convention against Corruption (1997). Racketeer Influenced and Corrupt Organization Act, commonly referred as the RICO Act.|
|The Federal Republic of Germany||• The Anti-Corruption Act 1997.|
|The French Republic||• The Sapin Anti-Corruption Law (1993). The Decree on the Central Service for the Prevention of Corruption of 1993. Law No. 2007-1598 on Fighting Corruption.|
|The Nation of Brunei||• The Law on the Prevention of Corruption (1998).|
|The Federal Republic of Nigeria||• The Corrupt Practices and other Related Offences Act 2000.|
|The Kyrgyz Republic||• The Law on Fighting Corruption (2003).|
|The Republic of Tajikistan||• The Law on Fighting Corruption.|
|Ukraine||• The Law of Ukraine on Prevention of Corruption (2014). The Law of Ukraine on the National Anti-Corruption Bureau of Ukraine (2014). The Law of Ukraine on Amendments to Certain Legislative Acts of Ukraine Relating to Determination of Final Beneficiaries-Legal Persons and Public Figures (2014).|
|The UN||• The United Nations Convention against Corruption (2003).|
|The EU||• The European Union Convention Against Corruption (1997).|
The lack of a single universal concept of corruption-related offence also has a negative impact on the national anti-corruption development (Mungiu-Pippidi, 2016), 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:
1. Government favouritism that contributes to unlawful taking of interest or to illegal enrichment by persons favoured by those, who hold a higher position (Doroftei, 2016).
2. Non-public financial information that contributes to corruption in the financial sphere (Vargas and Schlutz, 2016).
3. Strictly confidential criminal cases, especially international ones (for example, terrorist attacks in the United States on September 11, 2001) (Greg, 2017).
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. Although preventive measure is hard to be overestimated. They help to work out a strategy to prevent corruption among the population. They also facilitate the landing of corruptionists and the investigation process, providing the relevant bodies with necessary information (The Role of Preventive Measures, 2015).
There is an opinion that setting up a meritocratic regime is one of the most effective ways to combat corruption in public administration (Charron et al., 2016). 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 (Shashkova, 2015). 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 (Ageev and Khuzina, 2016), as this will greatly enhance the control over the most corrupted spheres of life. There were also propositions to:
1. 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 (Ageev and Khuzina, 2016).
2. Reduce the number of workers in public administration, although such a measure is unlikely to have the expected effect on the fight against corruption (Gumerov et al., 2016).
Preventive anti-corruption strategies are viewed to be as follows (Lopez-Claros, 2014):
1. Paying civil servants well.
2. Creating transparency and openness in government spending.
3. Cutting red tape.
4. Replacing regressive and distorting subsidies with targeted cash transfers.
5. Establishing international conventions.
6. Deploying smart technology.
These strategies are general and non-specific, but the can frame the following anti-corruption measures (How to Stop Corruption, 2018):
1. Giving a better salary in government jobs.
2. Increasing the number of workers.
3. Law to dismiss from service if found to be involved in corruption.
4. Keeping transactions online and provide a bill for every purchase.
5. Camera in most government offices.
6. Speeding up the work process in government institutes.
8. Making media responsible and fix laws to be so.
9. Verifying the selection procedures.
10. Keeping inflation low.
11. Speeding up the judgment and increasing the courts.
These preventive measures were developed for developed countries with highly developed social, economic and state institutions, but they can ground more universal anti-corruption measures.
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.) (Bogolib, 2015). 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.
Most of the proposed anti-corruption measures can be effective if grounds for their application are laid. This requires appropriate methodologies to be designed and appropriate national and international laws to be drafted. Following this line of reasoning, measures aimed at strengthening of criminal liability for corruption-related offences will not be as effective as this sphere of public administration requires.
Problems regarding the criminal liability for corruption-related offences, corruption determinants and measures aimed at preventing these crimes are addressed in some studies. In particular, corruption-related offences and the criminal liability for committing them were characterized with regard to the new Romanian Penal Code (Sandu and Ciocoiu, 2015). There were studies devoted exclusively to the issues of criminal liability for bribery that is recognized as a corruption-related offence in different countries. These issues covered the bribery of parliament and municipal members, and political candidates (Calatayud, 2017).
Much attention is given to various aspects of the fight against corruption-related offences studied in Singapore, as this country is a leader in the eastern fight against corruption. The research compared the legal regimes of Malaysia and Singapore in terms of the control taken over the corruption-related offences (Hadi et al., 2016). The anti-corruption strategy is studied as one, which best ideas can be effectively implemented in North Korea (Quah, 2017). The specific feature of the fight against corruption in Russia was studied as a separate issue. The combat there is characterized by a high level of corruption that has formed on the back of the national history and the social attitude towards corruption that considerably complicate the fight against corruption (Shashkova, 2015).
There is a belief that a criminal liability for corruption-related offences should be imposed upon corporations as well (Arofa et al., 2015), in other words-any legal entity that adopted the international experience must hold liable for these offences. A number of national criminal codes provide for the criminal liability of legal entities, including the criminal liability for corruption-related offenses (Criminal Code of the French Republic).
Corruption can be killed only if civic institutions are involved into combat, since they are the first in line who seek such a victory. This is even more crucial in the climate of serious society alienation from power. The government attracting public organizations to full-fledged cooperation in solving problems in this area gets a chance to boost the confidence of citizens, and thereby, to achieve their goals (Abramov & Sokolov, 2017).
Therefore, the government should involve broad circles, most significant business and independent media, when implementing anti-corruption programs. The government should focus on raising legal and civic consciousness with skills of democratic behaviour, including skills of anti-corruption behaviour. The general measures listed above affect many spheres of public life and civil society.
Effective public involvement in the fight against corruption can be ensured by establishing a Public Anti-Corruption Agency uniting the representatives of major public organizations engaged in fighting corruption. Functions of this body could include (Ageev & Khuzina, 2016):
1. Unique policy formulation for public organizations.
2. Coordinating the performance of public organizations.
3. Public control over the activities performed by the anti-corruption agency and over the anti-corruption program implementation.
4. Preparing and implementing anti-corruption agreements between corporate associations and authorities.
5. Community outreach within the framework of anti-corruption programs.
Anti-corruption measures come in two types: repressive measures and preventive measures. Although the best can be achieved only if combining them, the major path towards defeating corruption is a working out of a prevention strategy.
The leading strategies of corruption prevention 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.
This will contribute to the more effective enforcement of international criminal regulations and will create the opportunity to unify the national criminal legislation in the field of imposing responsibility for corruption-related offences. These measures will open new prospects for designing mechanisms of identifying corruption determinants in the most corrupted spheres, as well as new prospects for articulating the most effective prevention measures that will be applicable at both international and national levels of criminal law enforcement.