Читать книгу Implementation of State Anti-Corruption and Anti-Money Laundering Policy in the EU Member States - Michele Sciurba - Страница 7

The systematic diversion of profits from illegal activities from the shadow to the real economy through tax evasion, corruption or bribery inevitably results in a loss of investment income and a reputational loss for the economies concerned. Corruption robs local communities and resident populations of valuable human and natural resources. The resulting loss of confidence can lead to political destabilization of entire regions. In some cases, it can lead to government collapse or regime change or even to a failed state. One recent example of how the political backlash against corruption can lead to a change in government is the 2014 Maidan protests in Ukraine. The “Revolution of Dignity” forced former President Viktor Fedorovych Yanukovych to flee the country and contributed to a political reorientation by Ukraine leading to the signing of the Association Agreement between Ukraine and the EU. On the other hand, it led Russia, concerned with the loss of influence, to invade and annex Crimea in violation of international law.

The first cooperation agreement between Ukraine and the EU was concluded in 1994 and entered into force in 1998. Its core elements were the Ukraine’s increasing reproachment with the EU in the area of trade based on the principles of the General Agreement on Tariffs and Trade (GATT) of the World Trade Organization (WTO) and the passage of Ukrainian legislation on environmental protection and economic development. The Ukrainian President’s decree of June 1998 defined the Ukrainian integration strategy with the EU. A large number of necessary reforms in the social, political, financial, economic and educational fields were initiated thereafter until 2007. In 2005, the EU-Ukraine Action Plan aimed to democratize Ukrainian institutions and to implement effective anti-corruption and structural economic reforms within various sectors of the economy. This Action Plan has significantly expanded the cooperation between the EU and Ukraine at all levels and in 2007 led to an agreement which allowed for visa facilitation for Ukrainian nationals entering the EU. In addition, the Ukraine and the EU signed an agreement to jointly fight illegal immigration and organized crime. At the Paris Summit in 2008, Ukraine and the EU reached a political agreement that was the basis for the Association Agreement with the EU.

On 19 December 2011, negotiations on the Association Agreement with Ukraine were completed at the EU-Ukraine Summit in Kyiv and the Agreement was subsequently presented in March 2012. The Yanukovych Administration, however, interrupted this process of EU reproachment by suspending the signing of the association procedure. This was followed by protest, and ultimately the “Revolution of Dignity”, which led not only to Yanukovych’s expulsion, but sparked concerns by the Russian Federation that the Ukraine was receding from its sphere of influence. Consequently, Russia instigated anti-Ukrainian propaganda in Eastern Ukraine and Crimea, ultimately leading to Russia’s military intrusion into Ukraine and the illegal annexation of Crimea. Despite Russia’s massive interference, President Poroshenko signed the Association Agreement with the EU in 2014.

The Association Agreement has significantly increased the pressure on the Ukraine government to implement more transparency and anti-corruption measures. The EU established the European Union Advisory Mission, thereby providing broad support to the Ukraine for the reform of the civil and security sector based on the implementation of international and EU standards of good governance and human rights. In addition, the EU funded a project to help reform Ukraine’s judicial sector. This monograph offers a new approach to implementing an anti-corruption strategy in Ukraine and suggests how the fight against corruption within government can be streamlined using modern methods and a risk-based approach. Drawing on the experience of EU countries through a comparative analysis of the rules and procedures for structuring public administration policy, this work proposes developing recommendations to strengthen the Ukrainian AML and corruption policy. Corruption remains a widespread problem at various levels within Ukrainian public administration and it has significantly weakened public confidence in government and in the judicial system.

Corruption, money laundering and organized crime is a serious problem for the Ukraine. The Council on Prevention and Counteraction to Legalization (Laundering) of the Proceeds from Crime, Terrorism Financing and the Financing of Proliferation of Weapons of Mass Destruction (AML/CFT Council) led by the Financial Intelligence Unit (FIU) is in charge of coordinating and regulating all government agencies responsible for AML/CTF measures. An important function of the National Anti-Corruption Bureau of Ukraine (NABU) is the prevention of corruption and the investigation of corruption charges against high-ranking officials. In addition, a number of other investigative agencies and ministries are involved in the fight against money laundering and corruption. Ukraine has comprehensive AML/CTF legislation in place, including the Code of Criminal Procedure of Ukraine, the Code of Administrative Procedure of Ukraine, the Criminal Code, the Criminal Procedure Code, the Code of Ukraine on Administrative Offenses, the Civil Code of Ukraine, the Law of Ukraine “On Banking and Banking Activities”, the Law of Ukraine “On Insurance”, the Law of Ukraine “On State Regulation of the Securities Market in Ukraine”, the Law of Ukraine “On Financial Service and State Regulation of Financial Services Market” and other financial sector laws.

The Ukraine has implemented AML and anti-corruption measures under the Council of Europe’s Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (Moneyval) monitoring mechanism. In addition, Moneyval has been an associate member of the FATF since 2006. The National Bank of Ukraine (NBU) practices risk-based banking supervision and has made significant progress in creating transparency regarding the beneficial ownership of banks. In recent years, Ukraine has consistently removed criminal owners from the banking sector and established an efficient sanction regime in response to breaches of legal obligations, including the withdrawal of banking licenses. The establishment of a unified state register for beneficial ownership allows authorities to identify banking clients. In terms of mutual legal assistance on money laundering and corruption, the Ukraine has also made significant progress. In 2015, the NBU and the Ukrainain FIU – the State Financial Monitoring Service of Ukraine (SFMS) – as well as other supervisory authorities created an operating and training center, now led by the FIU, to better understand potential money laundering and terrorist financing risks.

In recent years, there has been a significant increase in academic research at the national and international level about the role of public administration in combating money laundering in the Ukraine by uncovering the shadow economy. Non-Ukrainian scholars such as F. Brett, G. Grossman, J. Zdanowicz, K. Kottke, J. Modinger, T. Reiter, R. Seddig, etc. have been at the forefront of such research. Ukrainian scholars such as V. Zhuravskyi, M. Kamlyk, M. Karmazina, Ya. Kashuba, O. Markeeva, M. Melnyk, M. Mykhalchenko, O. Mykhalchenko, Ye. Nevmerzhytskyi, O. Rudyk, A. Safonenko, and V. Tsygankov have made helpful contributions to the study of systematic corruption in Ukraine. Other scholars such as Yu. V. Aleksandrov, T. A. Kachka, A. T. Kovalchuk, O. Ye. Korystin, and A. V. Naumov have particularly investigated European legislation on the prevention of corruption. Scholars of anti-corruption policy have identified the establishment of a hierarchical set of objectives as an important structural element in the formation of anti-corruption strategies.

The aim of this work is to provide a theoretical justification for the formation of state AML policy in the light of the European experience and to formulate practical recommendations for its improvement. This monograph has a number of objectives. First, it attempts to prove a systematic theoretical basis for reforming the public organization and the legal foundations of state AML policy in the light of the experience of other European nations. Second, it gives an account of the problems of state administration of AML policy within the legal framework of the EU. To do so, it outlines and explains different types of state AML policy. This requires defining the performance indicators for state AML policy and taking into account the relationship between the structure of state public financing, law enforcement agencies and federal prosecutors.

The monograph suggests how to promote a nationwide anti-corruption strategy. It also suggests how the public administration of anti-corruption laws can be streamlined using modern social-scientific methods and offers a comparative analysis of the rules and procedures in public administration used by EU Member States. Further, this work identifies how relations to the public can be improved by clarifying the goals, objectives, principles, and competences of political institutions involved in national anti-corruption strategy and determining the principles guiding government administration of anti-corruption regulations in Ukraine. This monograph goes on to suggest improvements in the mechanisms of state administration of AML enforcement in Ukraine. This monograph seeks to contribute to research on the topic by suggesting methods for improving AML enforcement mechanisms in the banking system, in public relations and the Ukraine’s legal and regulatory framework.

The research methods used to study the mechanisms of state administration of the mechanisms of AML policy were derived from public administrative and international law, criminology, political science, and empirical studies of organizational management. This provided the conceptual foundations for the principles for structuring the state administrative system. A dialectical method has been applied to the procedural and conceptual aspects of the mechanisms of state financial monitoring employed by supervisory agencies, including the exchange of information at the national and international levels, as well as special sociological research methods, such as the study of expert evaluation, statistical analysis of data and the analysis of opinion polls. The monograph analyzes government institutions to examine intrastate mechanisms of AML regulation and reconstructs the main stages and origins of AML efforts in advanced nations, primarily in the European Union, based on historical and comparative methods in comparison to their use in Ukraine.

The monograph provides a novel approach to state AML policy in the context of European developments and its role in securing national economic security in Ukraine. In particular, this academic work develops theories and practical recommendations and introduces a hierarchical and complex mechanism for improving the public administration and state monitoring of AML policy in Ukraine. The implementation of the mechanism is multi-staged and sequential, such that certain measures are implemented at each stage: the amnesty of capital accumulated for non-terrorist purposes prior to its exposure by the authorities; the implementation of the FATF Recommendations, which are important for Ukraine’s integration process into the European Union and for international recognition; the creation of economic conditions to reduce shadowing and encourage economic actors and investors to raise capital inside the country rather than disinvesting it abroad. The proposed mechanism accounts for all areas of risk regarding money laundering in Ukraine and proposes preventive measures and solutions to existing problems for prohibiting the laundering of “shadow capital”.

In addition, the monograph introduces an own model for increasing the efficiency and responsiveness of government services in Ukraine: improving the public service, the responsiveness of local government, instituting practices of good self-government and public service and the implementation of a new anti-corruption policy, which takes into account both the development of Ukraine’s political system, and the division of labor among various management bodies charged with combating corruption. The proposed model optimizes the number of inspections of financial institutions, banks and other institutions reporting financial transactions to financial supervisory authorities in compliance with current legislation and improves the mechanisms for assisting compliance departments of financial services, banks and other reporting entities. In addition, it improves the legal and administrative enforcement to fight effective violations of AML law, including violations of administrative legal requirements and legal measures. Finally, the model expands the information technology capacity of the government regulators for the collection, processing, storage and transfer of the necessary information to a unified information system.

The theoretical and methodological principles and conclusions presented here can be applied to solving practical problems concerning the future direction of state AML policy. The monograph suggests the most pressing of present concerns about the direction of Ukraine’s strategy, both organizationally and legally, involves combating state corruption and making strategic choices that advance the Ukraine’s accession to the European Union.