Legal foundations as pillars of the anti-corruption fight: an analysis of the activities of judicial and law enforcement agencies

Dmytriiev Serhii; Tomchuk Andrii; Koshova Olha; Kharchenko Vitalii; Ulmer Mykola

doi:https://doi.org/10.34069/AI/2024.81.09.12

Dmytriiev, S., Tomchuk, A., Koshova, A., Kharchenko, V., & Ulmer, M. (2024). Legal foundations as pillars of the anti-corruption fight: an analysis of the activities of judicial and law enforcement agencies. Amazonia Investiga, 13(81), 157-167. https://doi.org/10.34069/AI/2024.81.09.12

Правові засади як основи боротьби з корупцією: аналіз діяльності судових та правоохоронних органів

Candidate of Legal Sciences, Doctoral Student of the Scientific Institute of Public Law (Kyiv, Ukraine).

Candidate of Legal Sciences, Senior Research Fellow of the Scientific Institute of Public Law (Kyiv, Ukraine).

This article examines the activities of law enforcement and judicial bodies as a component of anti-corruption mechanisms from the standpoint of the regulatory framework for its functionality. This study offers a new perspective on the fight against corruption by analyzing in detail the role of legal foundations in the activities of law enforcement and judicial bodies. The research establishes that the mechanism for preventing corruption is a means of achieving the goal of ensuring a specific result in the field of anti-corruption. This mechanism consists of the following elements: the goal and task of preventing corruption; objects of corruption prevention; actors preventing corruption; methods of preventing corruption. It is determined that the primary scientific interest is the anti-corruption principles on the basis of which this mechanism is established and operates, as well as anti-corruption standards. The main anti-corruption principles in the activities of domestic law enforcement and judicial bodies are considered in detail, the observance of which creates the basis for an effective and fair fight against corruption, contributes to the strengthening of the rule of law and increases the trust of citizens in law enforcement and judicial bodies.

Regarding anti-corruption standards, they are established at the global, regional, and national levels. It is concluded that anti-corruption standards at the regional level are developed and implemented to fulfill global obligations enshrined in international conventions and agreements. It is proven that the activities of law enforcement and judicial bodies are a key component of anti-corruption mechanisms.

Keywords: corruption, prevention, principles, standards, law enforcement, judicial authorities.

У статті досліджується діяльність правоохоронних та судових органів як складової антикорупційних механізмів з позиції нормативно-правової бази їх функціонування. Ця робота пропонує новий погляд на боротьбу з корупцією шляхом детального аналізу ролі правових засад діяльності правоохоронних та судових органів. Встановлено, що механізм запобігання корупції є засобом досягнення цілей забезпечення конкретного результату у сфері протидії корупції. Цей механізм складається з таких елементів: мета і завдання запобігання корупції; об’єкти запобігання корупції; суб’єкти запобігання корупції; методи запобігання корупції. Визначено, що першочерговий науковий інтерес становлять антикорупційні принципи, на основі яких створено та діє цей механізм, а також антикорупційні стандарти. Детально розглянуто основні антикорупційні принципи в діяльності вітчизняних правоохоронних та судових органів, дотримання яких створює підґрунтя для ефективної та справедливої боротьби з корупцією, сприяє зміцненню верховенства права та підвищує довіру громадян до правоохоронних і судових органів.

Що стосується антикорупційних стандартів, то вони встановлюються на глобальному, регіональному та національному рівнях. Зроблено висновок, що антикорупційні стандарти на регіональному рівні розробляються та впроваджуються для виконання глобальних зобов’язань, закріплених у міжнародних конвенціях та угодах. Доведено, що діяльність правоохоронних та судових органів є ключовою складовою антикорупційних механізмів.

Ключові слова: корупція, протидія, принципи, стандарти, правоохоронна діяльність, правоохоронні органи, судові органи.

Corruption is for good reason called one of the most dangerous occurrence. Bondarenko et al. (2021) believe that it is a negative social and economic phenomenon, which in various amounts is inherent to all countries of the world. Its existence undermines trust in State institutions, hinders economic development and is a manifestation of the violation of the principle of justice, especially in the context of access to various benefits.

The problem of combating corruption is not new, but it has become particularly acute at the current stage of the state’s development. This is due to the need to eliminate the disorganization of public administration system, because the consequences of corruption are already evident even in the mechanisms ensuring the country’s defense capability in the face of armed aggression. Such a tendency has always been observed, but it was especially clearly manifested at the present time, causing condemnation in society, a negative reaction among ordinary citizens and concern among foreign partners, which negates efforts to bring order to the country, enhance the prestige of the state on in the international arena.

The creation of effective anti-corruption mechanisms is the key to overcoming its destructive influence. Such mechanisms, which are a system of legal means, integrated and organized in such a way that empowered persons are encouraged to consistently implement actions to combat and prevent corruption, provide a pathway to justice and holding perpetrators accountable for their actions.

The activity of law enforcement and judicial bodies in anti-corruption mechanisms promotes the rule of law and serves as a powerful deterrent against corruption. It is important to emphasize that these agencies play a central role in detecting, investigating and ceasing corruption cases. Their activities are directed not only on detecting violations, but also on systematic preliminary work aimed at preventing similar phenomena.

Therefore, the purpose of the article is to study the activities of law enforcement and judicial agencies as a component of anti-corruption mechanisms.

The Article consists of introduction, presenting the relevance of the chosen topic; methodology, describing the methods used to obtain appropriate results; literature review, examining the works by the scholars, who studied the problem under consideration; results and discussion section, revealing the role of law enforcement and judicial bodies in anti-corruption mechanism, the essence of the latter, its structural elements, the categories of corruption prevention entities, the main anti-corruption principles in the activities of domestic law enforcement and judicial bodies; conclusions section, summarizing that the legal framework for the law enforcement and judicial bodies activities in the mechanisms of combating corruption is of dual legal nature.

The development of scientific knowledge is characterized not only by expanding the range of solved theoretical and practical tasks, but also increasing attention to the methods and methodology of scientific activity. Obtaining the required result directly depends on the original theoretical position, on the principled approach to posing the problem and determining the path of the research. Research methods play a key role in preparing the Article, as they help to systematize and analyze information, as well as form reasonable conclusions based on the data obtained. Empirical and theoretical methods of scientific knowledge were chosen taking into account the scientific problem and the subject matter of the study.

In particular, with the help of the phenomenological method, the phenomenon of corruption, its social danger and negative impact were investigated. The application of this approach does not deal with other phenomena mentioned in the Article.

Dialectical method was used for examining the concepts of corruption, corruption-related offences and corruption preventing mechanism. The limitation of this method lies in the finite number of definitions used in the work.

Analytical method was useful when analyzing the works by foreign and domestic scientists, who studied the role of judiciary and law enforcement in combating and preventing corruption. The limitation of this method lies in the restricted number of the examined papers by foreign and domestic scientists, who elaborated this problem.

Legal and dogmatic method was helpful when studying legal instruments, enshrining main anti-corruption principles in the activities of domestic law enforcement and judicial bodies, as well as anti-corruption standards established on the basis of and to meet global standard at the regional level. The limitation of this method lies in the restricted number of legal acts analyzed within the Article.

System and structural method made it possible to highlight the system of anti-corruption foundations in the activities of domestic law enforcement and judicial bodies. This method was also applied for identifying the elements of corruption prevention mechanism. The limitation of this method is that this system is created by the Authors of the Article, consequently it has a subjective aspect.

Generalization and abstraction methods were used when examining anti-corruption standards, which are established both at the global and at the regional and national levels and provide for the measures aimed at preventing, detecting and fighting corruption in all its forms. The limitation of this method lies in the personal experience of the Authors, who highlighted these standards.

Summarization method helped in drawing up the relevant conclusions to the research, which are limited by the data presented in the Article.

The purpose of limitations in the study is the accuracy and reliability of the results. With their help, a clear algorithm of actions is developed, the qualitative characteristics of the material are increased, goals and tasks are optimally specified, and the effectiveness of the results is enhanced. Each method has its own characteristics and limitations, which determine the direction of their application. The place of each method is determined according to the stage of the research and factual material in a specific sequence. Limitations that influenced the choice of research methods are: limited reliable data; constrained previous research on this topic; bias of the research sample; confined approach to data collection.

The fight against corruption has become one of the most urgent problems for many countries in the modern world. These negative phenomenon undermines legality and trust in state institutions, violates public order. In this context, the role of law enforcement agencies becomes particularly important, as they are key participants in ensuring legality, combating corruption and ensuring public safety. That is why, this issue is widely reported in various sources.

Doig et al. (2012) stress that corruption prevention is one of the main functions exercised by anti-corruption agencies (prosecution authorities, the police, independent bodies with specific preventive mandates, national coordination structures that are not independent legal institutions) around the world.

According to Chêne and Hodess (2009), effective law enforcement is essential to ensure the credibility of anti-corruption efforts and break the cycle of impunity. However, a set of conditions should be fulfilled for their productive activity in this direction: strong government commitment against corruption, supportive legal and institutional framework, sufficient state capacity and stability.

Kusumawati et al. (2020) state that qualified professional law enforcement officers is key element for fighting corruption. Law enforcement efforts against corruption will succeed if law enforcement officers play an active role in the efforts of prevention and dealing with corruption cases objectively. The authors highlight internal and external problems faced by law enforcement agencies in eradicating corruption, in particular: detention problems, failing to meet the community expectations, lack of qualified human resources, weak technical abilities, budget limitations (internal problems); legal professional organization factors, coordination with other institutions is not optimal, complexity of corruption cases, tolerance of corruption in society, low level of public legal awareness.

The same is opinion by Vasylevych et al. (2021), who believe that the fight against corruption in Ukraine is one of the main tasks of law enforcement agencies. The National Police of Ukraine is an executive body whose main tasks are the protection of human rights and freedoms, the fight against crime, the maintenance of public safety and order. To perform these and a number of other functions, police officers must act lawfully, transparently and impartially.

Kurbatova (2019) analyzed the state of counteracting corruption in Ukraine and the role of prosecutors in organizing counteraction to these manifestations. It is emphasized that today the state of counteraction to corruption is rather low in comparison with the developed European countries, which hinders the full realization of the rights and freedoms guaranteed by the Constitution of the citizens, the comprehensive development of civil society creates a negative image of the Ukrainian state in the international arena. Considerable attention is paid to Ukraine’s cooperation with the European institutions in combating corruption.

Zagorodnyuk et al. (2022) considered the role of law enforcement and judicial authorities ensuring law and order. The authors came to the conclusion that it is expedient to standardize the role of each law enforcement and judicial body in ensuring legality and law and order; the development of handbooks, namely, dictionaries as a catalog of appeals based on the facts of specific provision and renewal of the rights and freedoms of an individual and a citizen. Scientific interpretation of legislation under modern conditions in the sphere of compliance with legality and law and order cannot be considered complete, as it requires clarification of the scope of powers of representatives of state authorities in accordance with modern requirements of the society development.

Maistrenko et al. (2024) analyzed the importance and effectiveness of law enforcement agencies in combating corruption. The authors investigated the current situation with corruption, noted the threats it poses to society, and determined the need for an effective response by law enforcement agencies. Various aspects, such as the strengthening of anti-corruption legislation, the promotion of transparency and openness in the activities of power structures, as well as the development of cooperation with the public and international partners were identified and substantiated. An analysis of current trends and suggestions for further steps in improving governance and fighting corruption were proposed.

In recent years, new vectors for the implementation of anti-corruption policy related to the reforms of the judiciary, public authorities and civil service, anti-corruption bodies with special status, ensuring the inevitability of legal liability for the commission of corruption offenses, have been launched in our country. In addition to the formation of new bodies engaged in combating this phenomenon, the corresponding legal framework ensuring their activities was created, At the same time, the existing regulatory framework governing the work of agencies that “traditionally” fight corruption in Ukraine, was amended. All this requires new approaches in the study of their powers and legal bases of their activities.

Ukraine’s path of joining the European community contributed to the launch of the mechanism of building anti-corruption policy institutions in Ukraine after the Revolution of Dignity (Kotukov et al., 2023). Our State, based on the experience of other countries, has gradually come to understanding the need to divide the powers to combat corruption between different entities, as well as to "take" such authority from entities that were not involved in such activities. As a result, the National Police of Ukraine with a new philosophy of law enforcement service was established, and the Higher Anti-Corruption Court, whose task is to administer justice to protect individuals, society and the State from corruption and corruption-related offenses and exercise judicial control over pre-trial investigation of these criminal offenses, was founded in the Ukrainian justice system.

Before revealing the role of law enforcement and judicial bodies in anti-corruption mechanism, it is appropriate to define its essence.

In general, the mechanism is one of the most interesting and at the same time controversial categories of administrative law. This is due to the dynamic development of social relations, the construction of a legal, democratic and European state, where an individual, his/her life and health, inviolability and security are recognized as the highest social value (Dzhafarova, 2018, p. 42). The concepts "mechanism of rights", "mechanism of provision", "mechanism of activity", "mechanism of implementation" are reflected in the works of scientists. Undoubtedly, there are the limits of a certain essential aspect of the phenomenon under investigation, but the interdisciplinary nature of the category, as well as the variation of conceptual combinations of other processes or phenomena united with the mechanism by a common task, entails a comprehensiveness of its content (Prikhodko, 2020).

Alferov (2011, p. 23), having characterized the administrative and legal mechanism of combating corruption, understands it as a system of legal means that are integrated and organized in such a way that they help certain persons to consistently implement actions to combat corruption with the help of measures of an organizational and legal nature and measures of administrative coercion.

According to Hladun (2000, p. 5), the administrative and legal mechanism for combating corruption includes the provisions preventing corruption violations and the introduction of measures of administrative and legal responsibility in case of their commission, identifying the list of law enforcement agencies combating corruption and their powers. The fight against corruption should be formed through a symbiosis of prevention, law enforcement and liability. At the same time, the main goal of the anti-corruption state strategy is the formation of a high-quality prevention system.

In general, the corruption prevention mechanism is a means of achieving the goal, ensuring a specific result in the field of anti-corruption. This mechanism consists of the following elements:

The general goals of preventing corruption are to protect the interests of individuals, society, the state, and business from corruption offenses; to ensure transparent and effective state administration and business; to reduce the level of corruption to the socially acceptable limit.

Applied objectives of corruption prevention, which are aimed at solving specific problems in various spheres of social life, are defined in the Anti-corruption Strategy, the purpose of which is to achieve significant progress in corruption preventing and countering, as well as ensuring coherence and systematic anti-corruption activities of all state authorities and local self-government bodies, was adopted. In this Anti-corruption Strategy, corruption is considered as a key obstacle to stable economic growth and the building of effective and inclusive democratic institutions, while the previous one was focused on priorities related to the creation of a system of modern anti-corruption tools (legal institutions) and the development of a system of anti-corruption bodies that were supposed to ensure effective implementation of these tools (National Agency on Corruption Prevention, 2022).

The results of the analysis of the state of corruption in Ukraine, the effectiveness of the anti-corruption policy of previous periods, international standards and the best global practices in the field of corruption prevention and counteraction enabled to formulate the following basic principles of the anti-corruption policy for 2021 – 2025:

1) Optimization of state and local self-government functions,

2) Digital transformation of the exercise of powers by state authorities and local self-government bodies, transparency of activities and data disclosure as a basis for minimizing corruption risks in their activities;

3) Creating more convenient and legal means of meeting the needs of natural and legal persons to counter existing corrupt practices in contrast to existing corrupt practices;

4) Ensuring the inevitability of legal liability for corruption and corruption-related offenses, which creates an additional deterrent effect for all actors of legal relations;

5) Formation of public intolerance to corruption, promotion of a culture of virtue and respect for the rule of law.

a) Entities with general powers in the field of anti-corruption (the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine);

b) Actors with special powers in the anti-corruption area (National Anti-Corruption Bureau of Ukraine (NABU), National Agency on Corruption Prevention (NACP), Specialized Anti-Corruption Prosecutor's Office of the General Prosecutor’s Office of Ukraine (SAPO);

c) Entities combating corruption within the framework of the main functions (the National Police of Ukraine, the Security Service of Ukraine, the State Bureau of Investigation, the Ministry of Justice of Ukraine, the Prosecutor’s Office, National Agency of Ukraine for Finding, Tracing and Management of Assets Derived from Corruption and Other Crimes (Asset Recovery and Management Agency or ARMA), the State Financial Monitoring Service);

d) Entities participating in the implementation of measures to prevent and combat corruption (the Council of the Business Ombudsman, international organizations and their representations in Ukraine, the public, as well as individuals working on the implementation of programs (projects) and standards in the field of anti-corruption policy).

Methods of preventing corruption are ways and means of protecting the interests of individuals, society, and business from corruption, reducing the level of corruption in the country. The following are the methods of corruption prevention: the method of requirements, restrictions and prohibitions; electronic declaration; the method of openness and transparency of the activities of state authorities and local self-government; encouraging good behavior by officials; checking the integrity of business partners when concluding agreements; control over compliance with the requirements of anti-corruption legislation; public influence; corruption manifestations exposure; special confiscation; search and recovery of assets; prosecution for committing corruption and corruption-related offenses (Holovkin, 2018).

However, there is certain set of elements within each mechanism that are connected and closely interact with each other to solve common tasks and achieve the overall goal of the entire mechanism existence. Therefore, the mechanism is a system of processes, techniques and methods that become an important tool for achieving both short-and long-term goals through making correct and timely decisions (Prikhodko, 2020).

In the context of studying the anti-corruption mechanism, anti-corruption principles on the basis of which it is formed and operated, as well as anti-corruption standards, are of primary scientific interest.

The main anti-corruption principles in the activities of domestic law enforcement and judicial bodies are:

Thus, compliance with these principles creates the basis for an effective and fair fight against corruption, contributes to the strengthening of the rule of law and increasing the trust of citizens in law enforcement and judicial bodies.

As for the anti-corruption standards, they are established both at the global and at the regional and national levels. At the global level, an example of an act, in which such standards are enshrined, is the United Nations Convention against Corruption (UNCAC) (United Nations Office on Drugs and Crime, 2004). It provides for a number of measures aimed at preventing, detecting and fighting corruption in all its forms. The UNCAC covers a wide range of standards that must be implemented by Member States to create effective anti-corruption mechanisms.

In particular, the Convention provides for: 1) the creation of agencies responsible for corruption prevention, as well as the implementation of codes of conduct for civil servants; 2) criminalization of corruption acts in the law (bribery, illegal enrichment, money laundering, etc.), as well as the introduction of effective law enforcement mechanisms to bring perpetrators to justice; 3) provision of legal assistance, extradition, exchange of information and joint investigations aimed at countering transnational corruption; 4) the obligation of States to establish at the national level provisions for the return of illicitly acquired assets to their countries of origin, which is an important element of restoring justice and fighting corruption at the global level.

Thus, the United Nations Convention against Corruption serves as a universal standard that the States can rely on to improve their national anti-corruption policies and ensure an effective fight against corruption at the international level.

The next global standard is enshrined in the Sustainable Development Agenda for the period up to 2030, adopted by all UN member states in 2015 (United Nations, 2015). It contains Goal 17 of sustainable development, which provide for an obligation to significantly reduce corruption and bribery in all forms.

At the regional level, anti-corruption standards are established on the basis of and to meet global standards. Thus, the Council of Europe developed a set of anti-corruption legal standards and entrusted its specialized body – the Group of States against Corruption (GRECO), to supervise their implementation through a dynamic process of mutual evaluation and peer pressure aimed at identifying shortcomings in national anti-corruption policies and accelerating the necessary legislative, institutional and practical reforms. The most important instruments are the Criminal Law Convention on Corruption (along with the Additional Protocol of 2003) (Council of Europe, 2003) and the Civil Law Convention on Corruption (Council of Europe, 1999).

These conventions are supplemented by other legal instruments establishing anti-corruption standards, including the Twenty Guiding Principles Against Corruption enshrined in Resolution (97)24 (Committee of Ministers, 1997), among which are the following: taking measures on corruption prevention; criminalization of national and international corruption; investigation, prosecution and adjudication of corruption offenses; ensuring appropriate auditing procedures; transparent procedures for public procurement; freedom of the media; research on corruption; international cooperation, etc..

The relevant standards of the Council of Europe also include documents adopted by the Parliamentary Assembly to strengthen the fight against corruption and restore confidence in the efficiency and effectiveness of democratic institutions, such as Resolution 2170 (2017) promoting integrity in governance to tackle political corruption (Parliamentary Assembly, 2017a) (which recognizes that corruption represents a serious threat to the basic principles and values of the Council of Europe and stresses on the importance of the Twenty Guiding Principles for the Fight against Corruption), as well as Resolution 2192 (2017) "Youth against corruption" (Parliamentary Assembly, 2017b) (designed to raise young people’s awareness and understanding of corruption). The EU Committee of Ministers has also adopted useful anti-corruption standards, namely Recommendation CM/Rec(2014)7 on the protection of whistleblowers (Committee of Ministers, 2014), as whistleblower protection is not just a matter of legislation; it is also necessary to change society’s attitude towards disclosure of information, which often prevents people from reporting important information due to fears of possible negative consequences.

At the regional level, anti-corruption standards are developed and implemented to fulfill global obligations established by international conventions and agreements. The Council of Europe plays a key role in establishing those standards, creating legal instruments and mechanisms to fight corruption that ensure coordination of efforts between Member States and contribute to the improvement of national anti-corruption policies. This organization created a set of rules and recommendations regulating both criminal and civil liability for corruption offenses, and developed principles aimed at strengthening integrity in public administration and restoring confidence in democratic institutions. The implementation of these standards is monitored by the specialized body of the Council of Europe – GRECO, which ensures oversight, exchange of experience and promotes reforms in the participating countries.

In the context of the national level, an example of the adoption of a national standard harmonized with European and international ones by the method of translation is DSTU ISO 37001:2018 (ISO 37001:2016, IDT) “Management systems for combating corruption. Requirements and guidelines for application” (Order No. 507, 2018), which reflects international good practice and contains guidelines for the establishment, implementation, maintenance, review and improvement of the anti-corruption management system. This standard applies only to bribery. It establishes requirements and provides guidance on a management system designed to help an organization to prevent, detect and respond to bribery, comply with anti-corruption laws and voluntary commitments that may be applied to its activities. This standard does not specifically address fraud, cartels and other offenses related to antitrust and competition law, money laundering and other activities related to corruption, although an organization the organization may choose to extend the scope of the management system by involving the activities in question. The requirements of this standard are general and are intended for use by all organizations (or part of the organization), regardless of the type, size and nature of the activity, as well as in the public, private or non-profit sectors of the economy.

The study may be influenced by the perspectives and experiences of the authors, and that this could have affected the selection of sources and the interpretation of the results. Subjective factors may also have a significant impact on setting and solving problems; first of all, these are the researchers’ scientific interests and their practical experience, originality of thinking, scientific integrity, relevance of the research topic. The results of the study may not be generalizable to other contexts, as it focuses on the specific case of Ukraine; to push the boundaries of exploration, the experience of foreign States on this issue should be examined. Limitations of the methods described in the Methodology section, are used as well.

The legal basis for the activity of law enforcement and judicial bodies in the mechanisms of combating corruption is of dual legal nature. On the one hand, it ensures the effectiveness of these mechanisms by establishing a clear legal framework for the implementation of their powers, determining the procedures for their implementation, and setting legal consequences for failure or violation of established standards. This enables to maintain the stable and transparent work of law enforcement and judicial bodies, creating effective tools for combating corruption.

On the other one, they are the guarantee that their activities are directed towards ensuring rule of law, protecting the rights of citizens and strengthening public trust in state institutions, requiring them to identify and investigate corruption offenses, fair prosecution of perpetrators, which ensures the inevitability of punishment. This creates a deterrent effect and plays an important role in the formation of an anti-corruption culture in society.

The prospects for the further research are the developments on refining the current legal framework for the law enforcement and judicial bodies’ activities in the mechanisms of combating corruption by examining the regulations of foreign States on this issue with an aim of further implementation of the best practices in our legislation.

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