The article discusses the prohibitions and restrictions associated with the passage of civil service officials. The characteristic of the legal status of civil servants is given. The problem of the absence in the current legislation of a sufficiently clear regulation of liability for non-performance of any requirement by public servants is identified. The maintenance of additional restrictions on civil servants is compensated by providing them with additional guarantees and benefits, which are designed to compensate for the damage caused to the principle of equality by the introduction of certain restrictions on their rights and freedoms.
Keyword: Civil servant, civil service, Federal legislation, prohibitions and restrictions, administrative responsibility, offenses, personal interest, conflict of interest.
The specificity of the state service of the Russian Federation as a professional activity of citizens of the Russian Federation to ensure the execution of the powers of state bodies and persons who fill positions established for the direct execution of the powers of state bodies determines the special legal status of civil servants of the Russian Federation.
Regulating the legal status of civil servants of the Russian Federation, the order of admission and passing of the civil service of the Russian Federation, the state has the right to establish in this sphere and special rules (requirements)that is caused by the purpose of maintenance of high level of implementation of public service, tasks and principles of its organization and functioning.
In accordance with paragraph 11 of part 1 of article 15 of the Federal law dated 27 July 2004 № 79-Federal Law «On state civil service of the Russian Federation» (hereinafter — Federal law No. 79- Federal Law) civil servant of the Russian Federation (further — the civil servant) is obliged to comply with the restrictions, obligations and requirements to office behaviour, not to violate the prohibitions which are established by the specified Federal law No. 79-Federal law and other Federal laws [1]. "
No 230-Federal law of December 3, 2012 «on control over compliance of expenses of persons holding public positions and other persons with their incomes» and of May 7, 2013 No. 79-Federal law " on the prohibition of certain categories of persons to open and have accounts (deposits), to store cash and valuables in foreign banks located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments» (hereinafter-Federal law No. 273-Federal law, Federal law No. 230-Federal law, Federal law No. 79-Federal law of 07.05.2013) [1].
«Persons guilty of violating the legislation of the Russian Federation about the state civil service of the Russian Federation, are involved to responsibility in the order established by the Federal law of July 27, 2004 «About the state civil service of the Russian Federation» (further-the Federal law) and other Federal laws (article 68 of the Federal law).
In addition, in accordance with article 13 of the Federal law of 01.01.01 «On combating corruption "(hereinafter the Federal law) citizens of the Russian Federation, foreign citizens and persons stateless persons are subject to criminal, administrative, civil and disciplinary responsibility for committing corruption offenses in accordance with the legislation of the Russian Federation. An individual who has committed a corruption offense may be deprived of the right to hold certain positions of state and municipal service by a court decision in accordance with the legislation of the Russian Federation [2]. "
In addition to restrictions, the legislation also prohibits a public civil servant. Thus, article 17 of the law establishes all types of prohibitions that cannot be violated by a State worker. So, government employees have enough:
- Combine public service and entrepreneurship. That is, a state worker cannot work as an IP or be a member of commercial as well as non-profit organizations. The ban also applies to entrepreneurship through trusted persons. However, there are exceptions to non-profit organizations and institutions (art. 17 of the law).
- Purchase securities that are intended for profit. However, an important mention: the ban only applies if a conflict of interest is likely to arise, otherwise there are no restrictions.
- To act as an official representative of a person by proxy or under other title documents, if this provokes a conflict of interest.
- To receive gifts, gifts, remunerations and other encouragement from natural and legal entities in qualities of payment or remuneration for performance of direct duties of the state worker. There are exceptions.
- It is prohibited to disclose or use confidential information for its own benefit. The list of information classified as confidential information is enshrined in Presidential Decree No. 188.
- Statements of a public nature about the work of State bodies, managers, employees and their representatives are unacceptable. Exception: if these actions are provided by job instructions.
- The employee, as well as his spouse and minor children, shall not open bank deposits, accounts and deposits in foreign banks. It is also prohibited to use financial instruments of foreign States. Exception: the state worker works outside the Russian Federation.
Administrative responsibility for corruption offenses.
The normative legal act establishing administrative responsibility is the Code of the Russian Federation on administrative offences.
The code of administrative offences of the Russian Federation contains several types of administrative offences of a corrupt nature, including the following:
article 19.28 " Illegal remuneration on behalf of a legal entity»;
article 19.29 " Illegal employment of a civil servant (former civil servant)".
The following administrative penalties may be applied for committing an administrative offense of a corrupt nature:
Administrative fine;
Administrative arrest;
Disqualification.
Civil liability for corruption offenses.
If the committed corruption offense (criminal, administrative, disciplinary) causes property damage, then there are tort obligations (obligations because of causing harm) [3].
According to article 1069 of the Civil code of the Russian Federation, damage caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local self-government bodies or officials of these bodies is subject to compensation. The damage, is compensated at the expense of the Treasury of the Russian Federation, the subject of the Russian Federation or the municipality, respectively.
The Russian Federation, subject of Federation, municipal entity to repay the harm caused to the employee in the performance of his duties, have the right of return claim (regress) to that person in the amount of paid indemnity (article 1081 of the Civil code of the Russian Federation).
In addition, article 575 of the Civil code of the Russian Federation prohibits the donation, except for the usual gifts whose value does not exceed 3000 rubles, the persons occupying the state posts of the Russian Federation, public offices of constituent entities of the Russian Federation, municipal positions, civil servants, municipal employees, ministering Bank of Russia in connection with their official position or in connection with the performance of their official duties.
Gifts which are received by the persons substituting state positions of the Russian Federation, state positions of subjects of the Russian Federation, municipal positions, public servants, municipal employees, employees of Bank of Russia and which cost exceeds three thousand rubles, are recognized respectively as Federal property, property of the subject of the Russian Federation or municipal property and are transferred to employees by the act to body in which the specified person replaces a position [4].
Disciplinary responsibility for corruption offenses.
These are violations of prohibitions, requirements and restrictions established for civil servants and employees in order to prevent corruption, which are grounds for disciplinary sanctions or dismissal due to loss of trust.
For non-compliance with civil servants restrictions and prohibitions, requirements
the following penalties are imposed for the prevention or settlement of conflicts of interest and non-performance of duties established for the purpose of combating corruption by Federal laws and other Federal laws:
comment;
Censure;
Caution about incomplete official compliance;
Dismissal due to loss of trust.
Thus, article 59.1 of the Federal law besiege the following penalties for non-compliance of civil servants with limitations and prohibitions, requirements for the prevention or settlement of conflicts of interest and non-performance of duties established for combinating corruption by Federal law, Federal law and other Federal laws.
As example, we can show the problem and that decision is bringing.
Article 59.2 of the Federal law provides that a civil servant is entity to dismissal due to loss of confidence:
1) failure of a civil servant to take measures to prevent and (or) resolve a conflict of interest to which he is a party;
2) failure to provide civil servants with reference about their income, expenses, property and obligations of a property nature, as well as about income, expenses, property and obligations of a property nature of their spouse and minor children, or submission of obviously unreliable or incomplete information;
3) Participation of a civil servant on a paid basis in the activities of the management body of a commercial organization, except for cases established by Federal law;
4) realization of business operations by civil servants;
5) coming of a civil servant into the management bodies, Trustees or Supervisory boards, other bodies of foreign non-commercial non-governmental organizations and their structural divisions operating on the territory of the Russian Federation, unless otherwise provided by an international Treaty of the Russian Federation or the legislation of the Russian Federation;
6) infringement by an official, spouse and minor children of the ban on opening and having accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, owning and (or) using foreign financial instruments. According To Yu. N. Slepchenko, the form of Mandatory [5].
If the representative of the employer does not take measures to prevent and (or) resolve the conflict of interest, to which the subordinate is a party — he's a civil servant.
Responsibility for non-compliance with the provided restrictions and prohibitions
Persons guilty of violating the legislation of the Russian Federation on the state civil service of the Russian Federation shall be held liable in accordance with the procedure established by Federal law No. 79-Federal law and other Federal laws (article 68 of Federal law No. 79-Federal law).
In addition, in accordance with article 13 of Federal law No. 273-Federal law, citizens of the Russian Federation, foreign citizens and stateless persons shall bear criminal, administrative, civil and disciplinary responsibility for committing corruption offences in accordance with the legislation of the Russian Federation.
The main stages of dismissal of a civil servant due to loss of trust are described below.
Stage #1. Office check
If a civil servant is suspected of violations established by article 59.2 of the Federal law-79, the decision of the special Commission of state bodies on civil service issues is assigned a service check. A written application from a civil servant may also be the basis for conducting an audit.
The deadline for assigning the check is no later than one month from the moment of making the appropriate decision, or receiving an application from a civil servant.
During the audit, a special Commission establishes or refutes the facts of violations, and then draws up a written report on the results of the audit, which reflects:
facts and circumstances established by the results of the internal audit;
suggestions about applying / not applying disciplinary sanctions to an employee.
We emphasize that the inspection report is not a basis for applying a disciplinary penalty to a civil servant, and the proposals reflected in the document are of a recommendatory nature.
After drawing up the act in writing and signing it by members of the special Commission, the document is passed to the civil servant, in respect of which the inspection was conducted, for review.
Stage #2. Making a decision about dismissal
The report on the results of the service check is transmitted to the employer of the civil servant — an official authorized to make a decision regarding the acceptance of employees into the civil service and their dismissal. As a rule, such an official is the head of the state Agency where the person being checked serves.
Based on the results of the audit described in the act, the authorized head of the state Agency makes a decision to apply the necessary penalties to the civil servant (remark, reprimand, notification of incomplete official compliance) or to dismiss.
When making a decision, the employer takes into account:
the severity of the offense;
the amount of damage caused;
explanations provided to civil servants in oral and written form;
circumstances that served as the basis for a written statement of the civil servant to conduct an audit (if there is such a statement).
Stage #3. Termination of employment
If the employer decides to dismiss the employee due to violations established during the internal audit, the employment contract with the civil servant is terminated on the basis of article 59.2 (loss of confidence).
Note that for dismissal due to loss of trust, the presence of other disciplinary penalties (reprimand, remark, notification of incomplete official compliance) is not required.
Termination of employment relations with a civil servant may also be accompanied by a ban on holding public office for a certain period. The decision on disqualification from the civil service and the period of such disqualification is determined in the course of judicial proceedings and can be taken if the illegal actions of the civil servant caused significant harm to the state or third parties.
An individual, who has committed a corruption offense, may be deprived of the right to hold certain positions of state and municipal service by a court decision in accordance with the legislation of the Russian Federation. The research of existing definitions of the concepts «prohibition» and» restriction " propose to reveal the presence of different opinions among scientists. Thus, authors identify these theory. This fact is due to the fact that the Law of the Russian Federation «on the basics of public service» (1995) the prohibitions imposed by the public service regime were called restrictions.
Thus, E. V. Okhotsky, investigating the legal status of a civil servant, identified job restrictions, describing them as a set of factors-prohibitions showed the limits of what is allowed in the performance of duties and behavior of the state employee. These restrictions showed the rules of what is permitted, beyond which either hard prohibited or not approved by the state [6].
Course, it have to be accept that two prohibitions and restrictions are one of the most essential and effective means of anti-corruption activities in the public authorities of the Russian Federation Confederations.
Based on what has been said, bans in the structure of the public service can be understood as rules enshrined in the norms of administrative law that prohibit an employee from performing legally defined actions under the threat of state coercion.
References:
- ‘On State Civil Service of the Russian Federation: the fader. Law of 27.07.2004 number 79-Federal law (ed. by 12.30.2015)’ 2004, Legislation of the Russian Federation, no. 31, art. 2063
- Sultygov, MM 1996, Prohibition as a method of legal regulation, PhD thesis, St. Petersburg, 62 p.; Popov, AA 2007, ‘Prohibitions in the modern Russian right’, Bulletin of the Volga University of VN Tatishchev, Togliatti, p. 137.
- Koval, LV 1979, Administrative-legal tort ratio, PhD thesis abstract, Kiev, p. 23.
- Malein, NS 1994, ‘Modern problems of legal responsibility’, State and law, no. 6, p. 23
- Slepchenko, YN 2002, Prohibitions in administrative law, PhD thesis abstract, Voronezh.
- Okhotskiy, EV 2003, ‘The legal status of a civil servant of the Russian Federation’, State and law, no. 9, p. 17.
