The Ukrainian Association of Prosecutors has addressed the Institute of State and Law named after V.M.Koretskyi, the National Academy of Sciences of Ukraine, with the inquiry to carry out an expert examination as to legality of the prosecution bodies’ of Ukraine officers’ taking managing positions in public organizations. On July, 7 the UAP received the expert opinion on the above-mentioned matter.

EXPERT OPINION
the result of science-and-law expert examination
assigned to determine whether the prosecution bodies’ of Ukraine officers’ taking electoral positions in public organizations, based on public principles,
complies with the Constitution of Ukraine and the Laws of Ukraine.

     І. The content of the inquiry. Questions put for the expert examination.

     All-Ukrainian public organization “Ukrainian Association of Prosecutors” has addressed the Council of science-and-law expertise at the Institute of State and Law named after V.M.Koretskyi, the National Academy of Sciences of Ukraine, with the inquiry to carry out the expert examination to determine whether the prosecution bodies’ of Ukraine officers’ taking electoral positions in public organizations, based on public principles, complies with the Constitution of Ukraine and the Laws of Ukraine.

    The customer has put the following question to the science-and-law experts:
Do the prosecution bodies’ of Ukraine officers have right to take the electoral positions in public organizations, according to the public principles?
 

II. Legal base for carrying out the science-and-law expert examination

- The appeal letter of all-Ukrainian public organization “Ukrainian Association of Prosecutors”, the consent of the Institute for the expert examination and the estimate for carrying out the works;
- The Law of Ukraine “About the scientific and scientific-and-technological expert examination” of February 10, 1995, including the current amendments and addenda;
- The Resolution of the Cabinet of Ministers of Ukraine “About the confirmation of the list of chargeable services that can be granted to the state-sponsored science institutions” of July 28, 2003, № 1180;
- The Order of the Ministry of Education and Science of Ukraine “About the procedure of state accreditation for physical and legal entities for the right to carry out scientific and scientific-аnd-technical expert examination” of January 12, 2004, № 12.
 

III. In the course of the science-and-law expert examination the following normative and legal acts have been applied and analyzed:

- The Constitution of Ukraine;
- The Law of Ukraine “About the citizens’ unions” of June 16, 1992, including the amendments and addenda;
- The Law of Ukraine “About the prosecution” of November 5, 1991, including the amendments and addenda;
- The Law of Ukraine “About the corruption control” of October 5, 1995, including the amendments and addenda;
- The Code of Laws on Labor of Ukraine of December 10, 1971, including the amendments and addenda;
- The Civil Code of Ukraine of January 16, 2003, including the amendments and addenda;
- The Resolution of the Cabinet of Ministers of Ukraine “About jobs combining by the state enterprises’, institutions’ and organizations’ officers” of April 3, 1993, № 245, including the amendments and addenda;
- The Order of the Ministry of Labor of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Finance of Ukraine “About the establishment of Regulations about the terms of jobs combining by the officers of state enterprises, institutions and organizations” of June 28, 1993, №43;
- The Resolution of the Supreme Court of Ukraine Plenary Session “About the practice of hearing cases of corruption acts and the other 2 offences related to corruption” of May 25, 1998, № 13 (edited March 3, 2000, № 5);
- The Statute of all-Ukrainian public organization “The Ukrainian Association of Prosecutors” registered by the Ministry of Justice of Ukraine on March 15, 2005, License № 2216;
- Law Encyclopedia: Volume 6 / edited by: Y.S.Shemshuchenko (the Head Editor) and others – K.: “Ukr. Encyclopedia”, Volume 5: edition – 2003, pages 721-722. 

IV. The analysis of legislative normative acts. Results and conclusions.

    1. Article.36 of the Constitution of Ukraine provides for and guarantees the right for freedom for the citizens of Ukraine to confederate into public organizations for realization and protection of their rights and freedoms and for satisfaction of their economic, social, cultural and other interests.

    Establishing the right for freedom to confederate into public organizations, the Constitution of Ukraine limits the realization of this right to meet the interests of national safety and public order, health protection of the citizens, or the people’s rights and freedoms protection. At the same time, it provides that no one shall be forced to join any public union, nor shall be deprived of any rights because of his or her association or dissociation with a public organization.

    2. According to Article 1 the Law of Ukraine “About citizens’ unions” of June 15, 1992, a public organization as the kind of citizens’ union, is a free people’s formation created on the basis of the interests’ unity for common realization of the rights and freedoms by the citizens.

    The main principles of formation and activity of a public organization, according to Article 6 of this Law is freedom, equality of its members (participants), autonomy, legality and publicity.

     Part 4 of Article 7 of the present Law states that the officers of the public organizations’ apparatus are subject to the labor legislation. That is, in each particular situation it is necessary to determine the conditions and the peculiarities of work done by an officer of a public organization apparatus. 

    3. A registered public organization, in accordance with part 2 Article 14 of the Law of Ukraine “About citizens’ unions”, has a status of a legal entity.

    According to Articles 20, 21, 23, 24 of the Law of Ukraine “About citizens’ unions”, in order to embody the aims and tasks, determined by the statute documents, a registered public organization has a right to act as a participant of civil and legal relationships; to receive material and non-material rights; to own finances and other property needed for the fulfillment of its statute activity; in order to accomplish the statute tasks and aims, to carry out the needed economic and other commercial activity by means of creating self-financing institutions and organizations with the status of legal entities, to organize enterprises in the order determined by the legislation; to make operational and accounting record, to make statistic analysis and to make payments to the budget. 

    Article 86 of the Civil Code of Ukraine provides for the non-business communities (public organizations) the possibility of carrying out business activity, along with their main activity, if the opposite is not determined by the law and if such activity corresponds the purpose for which they had been formed.

    According to Article 97 of the Civil Code of Ukraine, the management of a community is carried out by its bodies. The community’s authorities are the general gathering of its participants and the executive body, if other is not provided by the law.
    The authorities of the all-Ukrainian public organization “The Ukrainian Association of Prosecutors” are: 
     - The general gathering of the Association members (the conference);
    - The Executive Committee of the Association;
    - The President of the Association;
    - The Vice-President of the Association;
    - The Secretary of the Association;
    - The Inspection Commission.
 

   The sole fact of taking a managing position in a public organization which carries out the necessary economic activity with the purpose of fulfillment of its statute tasks and aims cannot be considered business activity of this person. It is for the reason that the profits from the economic activity of a public organization is not subject to being shared among its members.

   4. 3. According to part 5 Article 45 of the Law of Ukraine “About the prosecution” of November 5, 1991, combining the service in the prosecution bodies with the work in companies, institutions or organizations, as well as with any kind of business is unacceptable, except for the scientific pedagogical activity.

   According to point б) part 1 Article 5 of the Law of Ukraine “About the corruption control” of October 5, 1995, a state officer or other person entitled to accomplish the state functions has no right to combine this work with any other (except scientific, teaching, creative and medical practice).

   The Law Encyclopedia gives the following definition of combining jobs – it is doing some other paid work per work contract during the time free from the main work in the same or in another company, institution, organization, or for a private person (Law Encyclopedia: Volume 6 / edited by: Y.S.Shemshuchenko (the Head Editor) and others – K.: “Ukr. Encyclopedia”, Volume 5: edition – 2003, pages 721-722.

   By doing work on terms of combining, according to point 12 of Resolution № 13 of the Supreme Court of Ukraine Plenary Session “About the practice of hearing cases of corruption acts and other offences related to corruption” of May 25, 1998, (edited March 3, 2000, № 5), it is meant that an officer fulfills another paid work, besides his main one, independently from a work contract. Scientific, teaching and creative activity is not considered combining.

   Therefore, one of the main features of combining jobs is payment for it.

   In order to ascertain whether or not the work done should be considered combining, as it is informed in the mentioned Resolution of the Supreme Court of Ukraine Plenary Session, the courts must follow the Resolution of the Cabinet of Ministers of Ukraine of April 3, 1993, № 245 “About the state enterprises, institutions and organizations officers’ combining jobs”, the Regulation about the terms of jobs combining by the officers of state enterprises, institutions and organizations (approved by the order of Ministry of Labor, Ministry of Justice and Ministry of Finance of June 28, 1993, № 43), and the attached List of jobs not to be considered combining.

    The mentioned List, along with the others, determines the following kinds of jobs that are not combining:
«3. Pedagogical work with hourly pay in the amount no greater than 240 hours per year»;
«5. Scientific advising in scientific and research institutions and high schools carried out by scientists and highly qualified professionals who are not on the staff of these institutions and schools, with pay calculated as 50 hours per year for scientific advice to each candidate; the highly qualified professionals being heads of departments, including those who have managing positions in schools and scientific and research institutions, with the pay calculated as 100 hours per academic year».

   Therefore, the mentioned regulations do not provide for any restrictions as to the positions level in the scientific and educational institutions (whether it should be a managing position or not).

   5. In accordance with part 5 Article 5 of the Law of Ukraine “About the corruption control”, a state officer or another person entitled to carry out the state functions, has no right to join the board of directors, nor other executive bodies of the enterprises, credit and finance institutions, economic companies, etc, organizations, communities, unions, cooperative societies which carry out business activities, no matter whether on his own, via a representative or authorized persons.

    According to Article 85 of Civil Code of Ukraine, a public organization is a non-business community, which has no aim of gaining profit to be shared among its participants.
 

GENERAL CONCLUSION

   1. The posecution bodies’ of Ukraine officers’ taking electoral positions among the authorities of the public organizations, that they are holding on public basis (not being paid for their work) is not considered combining jobs forbidden by part 5 Article 46 of the Law of Ukraine “About the prosecution”.

    2. The persons authorized to perform the state functions are not forbidden to carry out pedagogical (teaching) and scientific activities. At this, the effective legislation does not provide for any restrictions as to the positions level in scientific and educational institutions (whether managing positions or not).

Download