2.1. General definitions

In order to understand the Ukrainian anticorruption laws and regulations (collectively referred to as “anticorruption regulations”) we should first identify government officials, officers, officials and other persons to whom the anticorruption regulations apply, however, it is important to note that several categories of such persons are not limited to government/public sector and include private sector.

It should be taken into account that the Ukrainian legislation does not define public sector.

According to the definition in Article 63 of the Commercial Code of Ukraine, State-owned companies are those based on the State form of ownership.

According to Article 326 of the Civil Code of Ukraine, State ownership means the property and money owned by the State of Ukraine. Public authorities exercise the right of ownership on behalf of and in the interests of the State of Ukraine.

According to Article 22 of the Commercial Code of Ukraine, public-sector subjects of business activity are the persons/entities that act exclusively on the basis of State-owned property, as well as the entities in the authorized capital of which the State's ownership interest is in excess of 50% or is such that provides the State with the right to have the decisive impact on the business activities of these entities.

According to cl. 1 of Notes to Article 364 of the Criminal Code of Ukraine state and municipal enterprises are legal entities in whose statutory fund the state or municipal stake, respectively, exceeds 50 percent, or constitutes the value that assures to the state or to the territorial community the right of decisive influence on the economic activity of such enterprise.

We believe that in defining the public sector for the purposes of identifying corruption acts one should proceed on the basis of the list of the persons that are authorized to perform the responsibilities of the State or local self-government bodies and the persons that are regarded as being vested with such responsibilities as stipulated in the Law of Ukraine "Оn the Fundamentals of Corruption Prevention and Counteraction” (see below clauses 2.2.1-2.2.3).

Category of “Government officials” or GO(Ukr. – “державні службовці“, Rus. – “государственные служащие“) includes persons holding positions in public authorities and departments thereof, who have powers to implement goals and responsibilities of the State through their professional activities and receive salaries from the State¹.

Category of “Officers”(Ukr. – “посадові особи”, Rus. – “должностные лица”) applies to public and private sector. In public sector this category includes heads and deputy heads of public authorities and departments thereof, other government officials vested with organization, administrative and advisory responsibilities pursuant to laws and other regulations².

 Ukrainian law also has ageneral category of “official” (Ukr. – “службовa особa”, Rus. – “служебное лицо”), which includes public and private sector. In public sector this category includes persons who permanently, temporarily, or by special authority perform the functions of representatives of state authorities or local governments, as well as hold permanently or temporarily positions involving the performance of organizational-executive or administrative-economic functions in state authorities, local government bodies, at state or municipal enterprises, in institutions or organizations; or perform such functions by special authority granted to the person by a state authority, local government body, central state executive body with a special status, authorized body or authorized person of an enterprise, institution, organization, court, or by law³. Deemed officials shall also be officials of foreign states (persons who hold positions in legislative, executive, or judicial bodies of foreign states, including jurors, other persons who perform the functions of the state on behalf of a foreign state, in particular, on behalf of a state agency or a state enterprise), foreign arbitrators, persons who have powers to resolve civil, commercial, or labor disputes in foreign states according to procedures that constitute alternatives to judicial procedure; officials of international organizations (employees of an international organization or any other person authorized by such organization to act on its behalf), as well as members of international parliamentary assemblies in which Ukraine participates, and judges and officers of international courts⁴.

Public authority includes public authority employees who have the right to issue requirements within their powers and to make decisions binding upon legal entities and individuals regardless of the specific authority they belong to and regardless of their subordination⁵.

Organizational-executive responsibilities of an official include management of a specific industry, personnel, sector; production activities of employees of enterprises, institutions or organizations, regardless of form of ownership. These responsibilities are implemented by heads of ministries, other central bodies of executive power, heads and deputy heads of enterprises, institutions and organizations (including State-owned, collective or private), heads and deputy heads of structural units (heads of workshops, departments, laboratories, university departments), etc.⁶

Administrative-economic responsibilities of an official include management of State-owned, collective or private property. These powers (to various extent) are vested with heads and deputy heads of business planning, supply and finance departments and services, managers of shops, workshops, studios and heads of departments of enterprises, in-house auditors, supervisors, comptrollers, etc. ⁷

2.2. List of persons subject to anticorruption regulations

Persons who would be held liable for corruption acts include government officials and several other categories stipulated by law.

According to Article 4 of Law "On the Fundamentals of Corruption Prevention and Counteraction" dated 07 April 2011, persons who would be held liable for corruption offences (hereinafter - "Corruption Infringers") are:

2.2.1. Persons authorized to perform responsibilities of the State or local self-governed bodies:

1. the President of Ukraine; the Chairperson of the Verkhovna Rada of Ukraine; his/her First Deputy and Deputy; Prime Minister of Ukraine; First Vice-Premier of Ukraine; Vice-Premiers of Ukraine; ministers and other heads of central executive bodies who are members of the Cabinet of Ministers of Ukraine, and their deputies; Head of the Security Service of Ukraine; the Prosecutor-General of Ukraine; Chairman of the National Bank of Ukraine; Chairman of the Chamber of Accounts; Verkhovna Rada of Ukraine's Human Rights Commissioner; Chairman of the Verkhovna Rada of the Autonomous Republic of Crimea; and Chairman of the Council of Ministers of the Autonomous Republic of Crimea;
2. People's Deputies of Ukraine, Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, Deputies of local councils;
3. Public servants and officials of local government;
4. Military officers of the Armed Forces of Ukraine and of other military formations created pursuant to statutes;
5. Judges of the Constitutional Court of Ukraine; other professional judges; Chair, members, and disciplinary inspectors of the Higher Qualifying Commission for Judges of Ukraine; officers of the Secretariat of said Commission; Chairman, Deputy Chairman, and secretaries of sections of the Higher Council of Justice, as well as other members of the Higher Council of Justice; people’s assessors and jurors (in the time of performance of these functions);
6. Persons of rank-and-file and commanding personnel of the bodies of internal affairs, the State Criminal-Executive Service, bodies and units of civil defense, State Service of Special Communications and Protection of Information of Ukraine, and senior personnel of Tax Militia;
7. Officials and officers of the Public Prosecutor’s offices, Security Service of Ukraine,  Diplomatic Service, Customs Service, and State Tax Service;
8. Members of the Central Electoral Commission
9. Officers and officials of other public authorities;

2.2.2. Persons regarded as being authorized to perform the responsibilities of the State or local self-governed bodies:

1. Officers of public-law legal entities who are not mentioned in clause 2.2.1 but receive their salary from the State or local budget;
2. Persons who are not public servants or officials of local government but render public services (auditors, notaries, and appraisers, as well as experts, arbitration managers, independent brokers, members of labor arbitration tribunals, arbitrators in the time of performance of these functions, other persons in cases established by law);
3. Officials of foreign states (persons who hold positions in legislative, executive, or judicial bodies of foreign states including jurors; other persons who perform the functions of the state on behalf of a foreign state, in particular, on behalf of a state agency or a state enterprise), as well as foreign arbitrators, persons who have powers to settle civil, commercial, or labour disputes in foreign states according to procedures that constitute alternatives to judicial procedure;
4. Officials of international organizations (employees of an international organization or any other persons authorized by such organization to act on its behalf), as well as members of international parliamentary assemblies in which Ukraine takes part, and judges and officers of international courts;

2.2.3. Persons who hold permanently or temporarily the positions of organizational-executive or administrative-economic functions, or the persons specially authorized to perform such duties in private law legal entities irrespective of their corporate form pursuant to the law;

2.2.4. Officers of legal entities and individuals

- if an unlawful benefit is received from them or through their involvement by the persons listed in clauses 2.2.1 - 2.2.2;