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Ukrainian practice of anti-corruption legislation in health care

Reforming of anti-corruption legislation that took place 1,5 year ago and was related to adoption of law “On Principles of Preventing and Counteracting Corruption” (hereinafter the Law on corruption) caused a great deal of problems and troubles not only for state servants but also for many other persons. In particular many employees of healthcare establishments that as of today are subject to liability for corruption and which fall under a number of limitations provided by the Law on corruption.

Of course many of them could be charged for commitment of delicts even before. But one and a half year ago the risks to be charged were added with risks to face administrative liability for commitment of corruption delicts which could result not only in fines but also in dismissal from work. It should be pointed out that in practice these risks frequently transform into criminal cases and administrative protocols with further litigation.

Based on data from the Unified state register of court decisions for the one and a half year period during which the administrative liability for corruption wrongdoings provided by Article 172-2 of the Code of Administrative Offences of Ukraine (violation of limitations related to use of official position) is existing, the courts of first instance have already heard more than 600 cases. Approximately 60 of these cases were related to doctors and other employees of healthcare. And if we take into consideration cases of administrative liability for commitment of other corruption wrongdoings and cases of criminal liability (there is also a great many of them), it will become clear how important it is for employees of healthcare establishments to know and comply with the anti-corruption limitations set for them.

First of all it is important to understand who is a subject to liability for corruption. Thus, in accordance with Article 4 of the Law on corruption persons that are subject to liability for corruption include persons that permanently or temporary hold offices related to performance of organizational and management or administrative and economic duties or persons specially authorized to perform such duties in legal entities of private law. Besides they include officers of legal entities of public law that receive salary from state or local budget.

As follows from the resolution of the Plenum of the Supreme Court of Ukraine number 5 dated 26.04.2002 organizational and management duties are defined as duties related to managing a branch of industry, workforce, segment of work, production activities of particular workers of enterprises. These duties are performed in particular by heads of enterprises, establishments and organizations, their deputies, managers of divisions and their deputies, persons who manage segments of works. As for such persons in the field of healthcare they can be represented by director of a medical establishment, his deputies, heads of clinics, laboratories and other divisions of an establishment.

Administrative and economical duties are defined as duties related to management of state, collective or private property (setting the procedure for its storage, processing, sale, control of these operations, etc.). Persons who perform these duties can be represented by head of planning and economical, supplying, financial departments and services, persons that are responsible for warehouses and other financially liable persons.

Definition of “officer of legal entity of public law” is not yet formed in legislation and court practice. The opinion of the National Agency of Ukraine on Civil Service that was expressed in letter number 1005/23-12 dated 03.03.2012 in which term “officer” is a synonym of term “official” that is defined by footnote to article 364 of the Criminal Code of Ukraine and also provides performance of administrative and economical or organizational and management duties.

But in practice law enforcement bodies and courts include practically all employees of healthcare establishments to the term of “officer of legal entity of public law” by pointing out that they also hold a certain office. These questionable decisions can be exemplified by:

  • Resolution of Svyatoshyn District Court of Kiev number 2608/7356/12 dated 30.05.2012 in which a family physician (of specialist category) faced administrative liability for illegal obtainment of 200 USD in exchange for disability letter issuance;
  • Resolution of Zhovtnevyi District Court of Zaporizhzhya number 3/0808/621/2012 dated 03.04.2012 in which an ophthalmologist faced administrative liability for demand of 300 UAH in exchange for “positive results” in examination certificate.

Thus, a number of persons who are to comply with anti-corruption limitations in practice is wider than it may look at first glance. And even ordinary doctors of state and municipal healthcare establishments may face liability for corruption.

Anti-corruption obligations and limitations that are related to officers of healthcare establishments in Ukraine include:

1) prohibition to use their position related to power for the purposes of illegal advantage obtainment or regarding acceptance of promise/proposal of such advantage for oneself. These actions include unlawful promotion or provision of preference to individuals or legal entities, unlawful promotion to a position. For example, this can be obtainment of unlawful advantage (basically a bribe) for issuance of sanitary certificate, order about provision of bonus, sick leave document or other document, for medical examination, diagnostics and other. These actions may result in either administrative (Article 172-2 of the Code of Administrative Offences of Ukraine) or criminal (Articles 364-365-1, 368-368-2 of the Criminal Code of Ukraine) liability with possible sanctions in the form of imprisonment for the term of up to 12 months with confiscation of property (for taking a bribe of especially large amount);

2) prohibition to receive gifts from individuals and legal entities personally or from intermediary persons for decisions, actions or inactivity in their favor as well as prohibition to receive gifts from subordinates. The prohibition is not applied to gifts that are in compliance of general principles of hospitality and the price of which does not exceed 50% of minimum wage, gifts from close relatives, generally accessible discounts for goods, services, generally accessible prizes, premiums, bonuses. Violation of these limitations results in administrative liability (Article 172-5 of the Code of Administrative Offences) and fine in the amount from 425 to 1700 UAH.

3) obligation to submit declaration about property, income, expenses and obligations of financial nature at location of work. The declaration must be submitted annually before the 1st of April. Section 1 of Article 172-6 of the Code of Administrative Offences provides liability in the form of fine in the amount from 170 to 425 UAH for non-fulfillment of this obligation;

4) obligation to notify about opening of currency account in a bank is a non-resident. Non-compliance with this requirement results in fine from 170 to 425 under Section 2 of Article 172-6 of the Code of Administrative Offences of Ukraine;

5) obligation to inform one’s direct superior about conflicts of interests. Thus, about contradictions between individual’s personal interests and his service duties that can influence objectivity and impartiality of decision making process. Article 172-7 of the Code of Administrative Offences of Ukraine provides liability in the form of fine in the amount from 170 to 1700 UAH for non-fulfillment of this obligation.

However it should be mentioned that officers of private healthcare establishments fall only under the first of the listed limitations. The rest limitations are applied only to doctors and other officers of state and municipal healthcare establishments.

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