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A GUIDE OF DEVELOPMENT AND IMPLEMENTATION OF AN ANTI-CORRUPTION
ENVIRONMENT IN THE PUBLIC-SECTOR
Vilnius2017
Initiator and coordinator of preparation of the Guide of Development and Implementation of an Anti-Corruption Environment in the Public-sector – Romualdas Gylys, Head of the Department of Corruption Prevention of the Special Investigation Service (SIS).
Prepared by: 1) Chapters 1, 2, 3, 10, 16:Giedrius Būdvytis, SIS CPD, Chief Specialist of the Anti-Corruption Assessment Division (ACAD)
(Deputy Head of the First Department of the First Division of SIS since 1 October 2016) (as well as the direct mentor of preparation of the text and individual parts),
Audrius Bereišis, Head of ACAD SIS, Aloiz Šafranovič, Chief Specialist of the Corruption Risk Division (CRD) of SIS, and Mantas Žemaitis, Chief Specialist of the Legal and International Cooperation Division of
Administration Department; 2) Chapter 4:
Ramūnas Merkininkas, Head of the First Division (FD) of the Second Department (SD) of SIS;Rasa Žibaitė-Neliubšienė, Chief Specialist of FD of the SD of SIS; 3) Chapters 4, 7, 12, 13:Tomas Čaplinskas, Chief Specialist of the Investigation Division of the Lithuanian Chief Official Ethics
Commission 4) Chapters 4 and 14:Rita Malijauskienė, Head Deputy of the Internal Security Division (ISD) of the State Tax Inspectorate
Under the Ministry of Finance (STI), Irma Sanvaitytė, Head of the Subdivision for Prevention and Control of Corruption (SPCC) of Control of
the ISD of the STI, Rasa Virvilienė, Director of the Law Department (LD) of the STI, Virginija Trafimovienė, Chief Specialist of the Division for Direct Taxes (DDT) of the LD of the STI, and Gelminė Šareikienė, Chief Specialist of the DDT of the LD of the STI; 5) Chapter 5:Vidmantas Mečkauskas, Head of the CRD of the SIS,Rita Malijauskienė, Deputy Head of the ISD of the STI, andIrma Sanvaitytė, Head of the SPCC of the ISD of the STI; 6) Chapter 6:Jurgita Razmytė, Chief Specialist of the Public Relations Division of the SIS, and Kristina Valantinienė, Chief Specialist of the Vocational Education Division of the Ministry of Education
and Science; 7) Chapter 7: Aistė Aleknienė, Chief Specialist of the CRD of the SIS,8) Chapter 8: Olga Česonienė, Specialist of the CRD of the SIS, 9) Chapter 9: Andrius Andrejus Fominas, Chief Specialist of the CRD of the SIS 10) Chapter 11: Ramunė Gervickienė, Head of the Second Department of the First Division of SIS, and Jolanta Karalkevičienė, Chief Specialist of the AS PV of the SIS; 11) Chapter 15:Marius Vainauskas, Division of Administrative Justice of the Administrative and Criminal Justice
Department of the Ministry of Justice of the RePublic of Lithuania, Egidijus Radzevičius, Deputy Head of the Administration Department (AD) of the SIS (Deputy Director
of the SIS since 15 September 2016), andMindaugas Urmonas, Head of the Complaints Division of the AD. Text edited by JSC “Metropolio Vertimai”.Text designed by JSC “Aktin”.Lithuanian text translated into English by SP “AJ Projects”.
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TABLE OF CONTENTS
I. GENERAL PART...........................................................................................................................................9
1. PREAMBLE...................................................................................................................................................9
1.1. Purpose and objectives of the guide of development and implementation of an Anti-Corruption environment in the Public-sector....................................................................................................................9
2. CONCEPT, PREVALENCE AND HARM OF CORRUPTION.................................................................13
2.1. Concept of corruption............................................................................................................................13
2.2. Corruption among Public and Private-sector entities............................................................................14
2.3. Corruption among Private-sector entities..............................................................................................16
2.4. Results of sociological analysis on the prevalence of corruption..........................................................17
2.5. Harm caused by corruption....................................................................................................................20
2.6. Statistics for corruption-related criminal cases in Lithuania.................................................................22
3. LEGAL REGULATION OF ANTI-CORRUPTION...................................................................................24
3.1. International Anti-Corruption legislations.............................................................................................24
3.1.2. Criminal law convention on corruption..........................................................................................24
3.1.3. Civil law convention on corruption................................................................................................24
3.1.4. Council framework decision 2003/568/JHA on combating corruption in the Private-sector.........25
3.1.5. OECD Convention on combating bribery of foreign public officials in international business transactions...............................................................................................................................................25
3.2. Legal acts on combating and preventing corruption in Lithuania.........................................................27
3.2.1. Prevention of corruption law of the Republic of Lithuania............................................................27
3.2.2. Criminal Code of the Republic of Lithuania...................................................................................27
3.2.3. Law on the special investigation service of the Republic of Lithuania..........................................28
3.2.4. Law on the adjustment of public and private interests of the Republic of Lithuania.....................28
3.2.5. Law on the chief official ethics commission of the Republic of Lithuania....................................28
3.2.6. Law on funding of, and control over funding of, political parties and political campaigns of the Republic of Lithuania...............................................................................................................................28
3.2.7. Law on the central electoral commission of the Republic of Lithuania.........................................29
3.2.8. Law on lobbying activities of the Republic of Lithuania...............................................................29
3.2.9. Law on charity and sponsorship of the Republic of Lithuania.......................................................29
3.2.10. Law on state control of the Republic of Lithuania.......................................................................29
3.2.11. Law on the Seimas ombudsmen of the Republic of Lithuania.....................................................30
4. CORRUPTION-RELATED OFFENCES, THEIR TYPES, CONCEPTS AND PRACTICAL EXAMPLES...........................................................................................................................................................................31
4.1. Bribery (Article 225 of the CC of the RL).............................................................................................31
4.2. Subornation (Article 227 of the CC of the RL).....................................................................................32
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4.3. Trading in influence (Article 226 of the CC of the RL)........................................................................33
4.4. Abuse of office (Article 228 of the CC of the RL)................................................................................34
4.5. Failure to perform official duties (Article 228 of the CC of the RL)....................................................36
4.6. Nepotism................................................................................................................................................36
4.7. Conflict of interests................................................................................................................................41
4.7.1. How to recognize a conflict of interest?.........................................................................................45
4.7.2. Management and elimination of conflicts of interest.....................................................................46
4.7.3. Council duties and responsibilities in implementing the prevention of conflicts of interest..........47
4.8. Improper charity and sponsorship..........................................................................................................48
4.8.1. Which companies can be provided with sponsorship?...................................................................49
4.8.2. For what purposes and what can be given as sponsorship?............................................................50
4.8.3. How the amount of sponsorship is determined?.............................................................................50
4.8.4. Sponsorship which may be used for other purposes.......................................................................52
4.8.5. Cases of obvious abuse of the privilege of sponsorship.................................................................52
4.8.6. What reports must be submitted to the tax institutions on the provided and received sponsorship?...................................................................................................................................................................54
4.9. Improper gifts, hospitality......................................................................................................................54
4.9.1. When it is forbidden to accept (give) gifts?....................................................................................55
4.9.2. What to do with a gift that cannot be accepted?.............................................................................57
4.10. Other corruption-related ffenses..........................................................................................................59
II. DEVELOPMENT AND IMPLEMENTATION OF AN ANTI-CORRUPTION ENVIRONMENT.........60
5. DETERMINATION OF CIVIL SERVANTS (EMPLOYEES) TOLERANCE FOR CORRUPTION.......62
6. RECOMMENDATIONS FOR PUBLIC-SECTOR EMPLOYEES AND PUBLIC ANTI-CORRUPTION EDUCATION...................................................................................................................................................63
6.1. Preparation of Anti-Corruption education programs and their contents................................................63
6.1.1. Anti-Corruption educational organization......................................................................................64
6.1.2. Implementation of Anti-Corruption education training..................................................................65
6.2. Organization of public education in educational institutions of all types and levels.............................66
6.3. Information which should be announced public....................................................................................67
7. PROBABILITY OF CORRUPTION MANIFESTATION..........................................................................69
7.1. Listing of institutions’ activities............................................................................................................69
7.2. Assignment of corruption risks factors to the fields of activities..........................................................70
7.3. Assessment of a need for the determination of the probability of corruption manifestation in certain activities........................................................................................................................................................70
7.4. Methodological and practical provisions on the areas of activites of the institution particularly prone to corruption..................................................................................................................................................72
7.5. Methodological and practical provisions on drawing up a reasoned conclusion concerning the activity areas of the institution particularly prone to corruption................................................................................76
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7.6. Reduction of corruption risk factors in business activities, which are prone to high probability of corruption manifestation...............................................................................................................................78
7.7. Problems of corruption occurrence likelihood.......................................................................................79
8. PREPARATION, COORDINATION AND IMPLEMENTATION OF CORRUPTION PREVENTION PROGRAMS AND PLANS.............................................................................................................................81
8.1. Corruption prevention programs and their preparation.........................................................................81
8.2. Implementation, monitoring and other actions of the program of corruption prevention....................83
8.3. Action plan of the corruption prevention program................................................................................83
8.4. Most common mistakes in corruption prevention programs and actions plans.....................................85
9. GUIDELINES FOR AN ANTI-CORRUPTION ASSESSMENT OF DRAFT-LAWS..............................88
9.1. Concept and meaning of an Anti-Corruption assessment of draft-laws................................................88
9.2. Legal acts establishing an obligation to conduct an Anti-Corruption assessment.................................88
9.3. Selection of draft-laws for an assessment..............................................................................................89
9.4. Performance of an Anti-Corruption assessment of draft-laws...............................................................91
9.4.1. Completion of a note of an Anti-Corruption assessment of a draft-law........................................93
9.5. Completion of a note of an Anti-Corruption assessment of a draft-law...............................................94
9.6. Disclosure of the note of an Anti-Corruption assessment of a draft-law...............................................95
10. ANTI-CORRUPTION COMMISSIONS AND PERSONS RESPONSIBLE FOR THE CORRUPTION PREVENTION.................................................................................................................................................97
10.1. Role of the head of a state or municipal institution in the corruption prevention...............................97
10.2. Departments or persons responsible for the prevention of corruption and their functions..................97
10.3. Cooperation of departments and persons performing corruption prevention and control...................99
10.4. Recommendations on the requirements and prohibitions for persons responsible for corruption prevention...................................................................................................................................................101
10.5. Municipal Anti-Corruption commissions: legal regulation, problems and recommendations..........102
10.6. Standard job description of a compliance officer..............................................................................104
11. PROVISION OF INFORMATION ON INDIVIDUALS........................................................................105
11.1. Categories of individuals in relation to whom a duty or a right arises to contact the Special Investigation Service...................................................................................................................................105
11.2. Entities obligated to and having the right to submit requests to the SIS and to receive gathered information..................................................................................................................................................106
11.3. Content of the information gathered and provided by the SIS (differences from special requirements of impeccable reputation established in legal acts).....................................................................................106
11.4. Completion and submission of a request to the SIS to provide information on a person..................107
11.5. Usage of obtained information...........................................................................................................109
11.6. Compilation of a list of positions before the appointment to which an institution or an enterprise shall submit a written request to the SIS and its disclosure................................................................................110
12. GUIDELINES FOR THE CODE OF CONDUCT OF PUBLIC SERVANTS (EMPLOYEES).............112
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12.1. Role, purpose and preparation of the Code of Conduct.....................................................................113
13. RECOMMENDATIONS ON THE DECLARATION OF PRIVATE INTERESTS...............................115
13.1. Who must submit a declaration of private interests?.........................................................................115
13.2. When it is obligatory to submit or adjust a submitted declaration of private interests?....................115
13.3. How to correctly fill in a declaration of private interests?................................................................116
13.4. Publicity of declarations of private interests......................................................................................116
13.5. Ensuring the performance of the obligation of private interest declaration in state and municipal institutions...................................................................................................................................................117
14. GUIDELINES ON EFFECTIVE PROPERTY AND INCOME DECLARATION.................................118
14.1. Property declaration...........................................................................................................................118
14.1.1. Objectives of property declaration..............................................................................................118
14.1.2. Who is obligated to declare property?........................................................................................118
14.1.3. What property needs to be declared?..........................................................................................119
14.1.4. How to fill in a property declaration?.........................................................................................119
14.1.5. What is the deadline for property declaration submissions?......................................................120
14.1.6. How to submit a property declaration?.......................................................................................120
14.1.7. How to correct errors (discrepancies) in a submitted property declaration?..............................121
14.1.8. Publicity, administration and control of property declaration data.............................................121
14.2. Income declaration.............................................................................................................................121
14.2.1. Which residents are obligated to declare income?......................................................................121
14.2.2. What type of income must be received in resolution to be obligated to submit an annual income tax declaration?.......................................................................................................................................122
14.2.3. What tax relief can residents use?...............................................................................................122
14.2.4. Why residents may be obligated to recalculate the annual TEA?..............................................123
14.2.5. How to complete income tax declaration, where to inquire additional information?................123
14.2.6. How to submit an income tax declaration?.................................................................................123
14.2.7. What is the deadline for the submission of an income tax declaration and the settlement of income tax?.............................................................................................................................................124
15. RECOMMENDATIONS ON THE ORGANIZATION OF WHISTLE-BLOWER PROTECTION ASSURANCE.................................................................................................................................................125
15.1. Concept of a whistle-blower..............................................................................................................126
15.2. Importance of the whistle-blower protection.....................................................................................127
15.3. International legal regulation of whistle-blower protection..............................................................128
15.4. Reporting types and channels............................................................................................................129
15.4.1. Hotlines.......................................................................................................................................130
15.4.2. Anonymous reports.....................................................................................................................131
15.5. What is the best way to protect whistle-blowers in Lithuania?.........................................................132
15.6. Awareness-raising..............................................................................................................................135
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16. ANNEXES................................................................................................................................................137
16.1. Role of diplomatic missions of the Republic of Lithuania in limiting bribery abroad......................137
16.2. Survey intended to identify tolerance of corruption prepared by the State Tax Inspectorate under the Ministry of Finances...................................................................................................................................139
16.3. Disclosure of the note of an Anti-Corruption assessment of a draft-law...........................................141
16.4. Examples of Anti-Corruption assessments of draft-laws of state or municipal institutions..............145
16.5. Examples of Anti-Corruption assessments of legal acts and their drafts performed by the Special Investigative Service...................................................................................................................................157
16.6. Ensuring the performance of the obligation to declare property and income for employees (or persons seeking to be employed) in state or municipal institutions............................................................160
16.7. Focus areas of an institution and the existing corruption risk factors................................................162
16.8. Examples of municipal focus areas....................................................................................................163
16.9. ABC of corruption prevention...........................................................................................................173
16.10. NPA: a transparent support administration - without gifts or bribes...............................................174
16.11. NPA transparency guide..................................................................................................................176
16.12. Recommendations on customs officers’ actions when cash money is found or given during customs control or control.........................................................................................................................................177
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I. GENERAL PART
1. PREAMBLE
1.1. Purpose and Objectives of the Guide of Development and Implementation of an Anti-Corruption Environment in the Public-sector
One of the most important preconditions for the effective prevention of corruption is knowing not only legislations regulating this field, staff training, education and awareness, corruption risk management, but also management of Public-sector understanding, awareness, supporting Anti-Corruption initiatives. Reduction of corruption should be the duty of every employee, but it requires a “leader”1 who could serve as an example for everyone. Such “leader” should be aware of corruption risk factors with which employees are confronted in their everyday activities, support employees with real actions and advices, and not limit oneself with warnings on impending penalties.
There is a great deal of legal regulatory provisions, recommendations for what heads of Public-sector institutions should do to prevent manifestation of corruption. However, the mentioned information has not been systematized, not related with practical examples, not presented in a convenient format. The representatives of the Public-sector often do not know where to begin, and what criteria to follow. For these reasons, a part of heads of the Public-sector institutions accomplish little in the field of corruption prevention. Such omission often is caused due to the lack of knowledge that the information exists and how to use such information effectively.
The Seimas of the Republic of Lithuania approved the National Anti-Corruption Program 2of the Republic of Lithuania for 2015-2025 by Resolution No. XII-1537 of 10 March 2015, and the Government of the Republic of Lithuania by Resolution No. 648 of 17 June 2015 approved the Inter-Institutional Action Plan3for the Implementation in 2015-2019 of the National Anti-Corruption Program of the Republic of Lithuania for 2015-2025 (hereinafter – the Plan). Paragraph 2.1. provides that the Guide of Development and Implementation of an Anti-Corruption Environment in the Public-sector shall be prepared until 31 December 2016 (hereinafter – the Guide of an Anti-Corruption Environment), and the training of representatives of the Public-sector shall be performed until 31 December 2019, in resolution to provide them with necessary knowledge to develop an Anti-Corruption environment in the fields where the corruption is most likely to occur. It should be noted that the "Public-sector" in a context of the Guide of an Anti-Corruption Environment should be understood as state and municipal institutions, as defined in Article 2(3)4 of the Law on the Prevention of Corruption of the Republic of Lithuania5 (hereinafter – the LPC), as well as other entities of public administration, as defined in Article 2(4)6 of the Law on Public Administration of the Republic of Lithuania7 (hereinafter – LPA). It should be noted that legal
1By following “Train the Trainer” model.2 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=1016244&p_tr2=2.33 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=1046517&p_tr2=2.4 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.5 State or municipal agency – state or municipal institution or agency, as well as a public agency, one of the founding parties of which is a state or municipal institution or agency.6 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.0BDFFD850A66/OCQvcNCBEt.7 Entity of public administration – a state institution or agency, a municipal institution or agency, an official, civil servant, a state or municipal enterprise, a public establishment whose owner or stakeholder is the State or a municipality, an association authorized in accordance
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regulation contains broader concepts of a Public-sector and its subjects, e.g. in the Public Governance Improvement Program for 2012-2020 approved by Resolution No. 171 of the Government of the Republic of Lithuania on 7 February 2012 “On Public Governance Improvement Program for 2012-2020”. In the said program, public administration authorities – entities are state politicians, state and municipal institutions, agencies, officials, civil servants, state or municipal enterprises, public institutions, the owner or stakeholder of which is the State or municipal, associations, joint stock companies and private companies, where the state or municipal owns more than 50 percent of the votes at the general meeting of shareholders. However, as it was said previously, this guide is intended to focus on representatives of the Public-sector laid down in the LPC and LPA. State or municipal enterprises, public institutions, joint stock companies and private companies, where the State or municipal owns more than 50 percent of the votes at the general meeting of shareholders, should consider provisions of this guide discussing aspects of asset declaration, support, and identifying probability of corruption manifestation. The Anti-Corruption Guide for Business shall be applied to enterprises mentioned previously8.
We believe that the developed methodological documents of implementation of Anti-Corruption legal regulation and working guidelines will improve the Anti-Corruption situation and standards of behaviour of employees working in a Public-sector. We hope that the Guide of an Anti-Corruption Environment will be a convenient tool for heads of Public-sector institutions, as well as civil servants and employees working under employment contracts (hereinafter civil servants, employees), which will help to create and support an environment resistant to corruption. It is also important to that “Corruption is a complex phenomenon with economic, social, political and cultural dimensions, which cannot be easily eliminated. An effective policy response cannot be reduced to a standard set of means; there is no ‘one size fits all’ solution“9, therefore there is no model that fits everything in all situations. This Guide of an Anti-Corruption Environment is a guidance, and therefore an Anti-Corruption environment can be created and supported by any other means.
Objectives of the Guide of an Anti-Corruption Environment:1) help to identify and properly manage the risk of corruption in a Public-sector;2) strengthen citizenship and intolerance for corruption, promote not to commit corruption-
related offences;3) introduce transparent and fair standards of behaviour;4) disseminate good practice in developing the Anti-Corruption environment;5) to develop the environment resistant to corruption in state and municipal institutions
with motivation;The Guide of Anti-Corruption Environment will enable the Public-sector to assess
employees’ vulnerability of potential corruption, identify corruption risk factors in legal norms and their implementation, i.e.:
1) to identify employees’ (in)tolerance for corruption, and gradually achieve “zero” tolerance;
with the procedure laid down by this Law to engage in public administration.8 Internet access: http://www.SIS.lt/documents/korupcijos_prevencija_2016/Antikorupcijos_vadovas_verslui_2016_12_06_viesinimui.pdf.9 European Commission Report “EU Anti-Corruption Report”, 2014, p. 3, internet access: http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/organized-crime-and-human-trafficking/corruption/docs/acr_2014_lt.pdf.
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2) to educate employees on Anti-Corruption topics;3) to organize activities of Anti-Corruption Commissions and persons responsible for the
prevention of corruption more effectively;4) to organize, coordinate, and implement Anti-Corruption programs and plans;5) to properly identify probabilities of corruption manifestation;6) to conduct qualitative Anti-Corruption assessments of legal acts;7) to properly organize information in persons seeking to hold or holding a position in a
state or municipal institution or enterprise;8) to prepare a code of conduct for civil servants and employees;9) to effectively organize private interests, asset and income declaration;10) to ensure protection of applicants to be able to safely report cases of corruption or any
other offences committed or being committed in an institution or agency;As said, there is no model that fits in all Public-sector, therefore the Guide of an Anti-
Corruption Environment is a guidance prepared on the assumption that employees with different creativity and abilities of Public-sector institutions would apply it differently by adapting it would fit in a particular Public-sector institution. We believe it will achieve the best results.
Table of contents of the Guide of Anti-Corruption Environment is divided into three main sections:
The first section is a General Part (Chapters 1-4), which introduces the Guide of Anti-Corruption Environment, provides general information on corruption, means of legal regulations to combat against this phenomenon, describes criminal offences related to corruption, as well as other corruption-related offences.
The second section is practical section, in other words, a part of development and implementation of the Guide of Anti-Corruption Environment (Chapters 5-15), which provides specific and detailed information on how to develop and implement the Anti-Corruption environment, for example how to conduct a survey of staff and identify tolerance level of corruption, how to perform Anti-Corruption education, how to effectively declare conflicts of interest, etc.
The third section provides annexes with specific examples that would help to develop and implement the Anti-Corruption environment.
The Guide of Anti-Corruption Environment is the first structured document in Lithuania which is meant to develop the sustainable Anti-Corruption environment in the Public-sector. The Private-sector already has examples of Anti-Corruption environment, for example self-proclaimed business entities seeking reduction of tolerance for corruption, and for this purpose have adopted appropriate documents: “Telia L ietuva ”10, Lithuanian Advertising Agency11, “ Delfi ” 12, Lithuanian Credit Unions13, Lithuanian Business Confederation and joined enterprises14, JSC “Kelprojektas”15, Mykolas Romeris University16, Vilnius University17, IFPA18.
10 Internet access: http://www.SIS.lt/documents/naujienos_2014/TEO_Etikos_kodeksas.pdf. 11 Internet access: http://www.reklamosbiuras.lt/download.php?file_id=42. 12 Internet access: http://www.delfi.lt/news/ringas/lit/delfi-pristato-savo-etikos-kodeksa.d?id=62344011. 13 Internet access: http://lku.lt/apie-mus/etikos-kodeksas/. 14 Internet access: http://www.lvk.lt/lt/tiekeju-etikos-kodeksas-viesuosiuose-pirkimuose. 15 Internet access: http://www.SIS.lt/documents/naujienos_2014/Kelprojektas_Etikos_kodeksas_1.pdf . 16 Internet access: http://www.mruni.eu/lt/universitetas/apie_mru/dokumentai/etikos_kodeksas/. 17 Internet access: http://www.vu.lt/site_files/SD/Studentams/SP/SRD/VU_AEK.pdf. 18 Internet access: http://ifpa.lt/naujienos/priimtas-sps-spo-informacijos-atskleidimo-kodeksas/.
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One of alternative tools on how to implement combat against bribery and form Anti-Corruption environment in an institution should also be mentioned – the new standard ISO 3700119.
Foreign countries also have similar documents or initiatives: OECD Anti-Corruption Network for Eastern Europe and Central Asia for Economic Co-operation and Development (OECD) report “Prevention of Corruption in the Public-sector”20, report on Anti-Corruption Reforms in Eastern Europe and Central Asia21, initiative EFPIA22, Anti-Corruption handbook for business sector developed by “Transparency International” Norwegian Chapter23, e-learning platform developed by Poland Central Anti-Corruption Bureau24, e-learning system developed by the United Nations Office on Drugs and Crime Office25, Anti-Corruption toolkit developed by the United Nations Office on Drugs and Crime Office26, United Nations Handbook on Practical Anti-Corruption Actions for Prosecutors and Investigators27, global public property registry initiative28, information search system “Track”29, „Transparency“ schools30, freedom and democracy “houses”31 and many others.
19For more information please visit internet access: http://www.lsd.lt/index.php?95788375, http://www.iso.org/iso/home/store/catalogue_tc/catalogue_detail.htm?csnumber=65034, http://www.iso.org/iso/iso37001.20 Internet access: http://www.oecd.org/corruption/acn/ACN-Prevention-Corruption-Report.pdf.21 Internet access: http://www.oecd.org/corruption/acn/Anti-Corruption-Reforms-Eastern-Europe-Central-Asia-2013-2015-ENG.pdf.22 Internet access: http://transparency.efpia.eu/the-efpia-code-2. 23 Internet access: http://www.transparency.no/wp-content/uploads/sites/10/protect-your-business_handbook.pdf . 24 Internet access: https://szkolenia-antykorupcyjne.edu.pl/.25 Internet access: https://golearn.unodc.org/olat/dmz/goLEARN%20-by%20UNODC.26 Internet access: http://www.unodc.org/pdf/crime/corruption/toolkit/AC_Toolkit_Edition2.pdf.27 Internet access: https://www.unodc.org/pdf/crime/corruption/Handbook.pdf.28 Internet access: http://www.transparency.org/news/feature/3_steps_to_stop_secret_companies, http://blog.transparency.org/2016/04/04/secret-company-ownership-a-global-solution-for-a-global-challenge/.29 Internet access: http://www.track.unodc.org/LegalLibrary/Pages/home.aspx.30 Internet access: http://transparencyschool.org/.31 Internet access: https://freedomhouse.org/report/freedom-world/freedom-world-2016.
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2. CONCEPT, PREVALENCE, AND HARM OF CORRUPTION
2.1. Concept of Corruption
There are many different definitions of corruption, however this social phenomenon is the most clearly described in Communication form of the European Commission on Fighting Corruption in the European Union (2011) 32:
Corruption – abuse of office for private gain or for another person. This concept covers corruption in both Public and Private-sectors.
Scientists from the Lithuanian Law Institute offer more detailed concept of corruption33:Corruption – any conduct of persons working in the public service (state politicians,
judges, state officials, civil servants, and any other equivalent persons) or in the Private-sector that does not comply with their powers, standards of conduct laid down in legal acts or enterprise's internal rules in resolution to obtain gains for oneself or others, and thus damaging state interests or individual natural or legal persons’ interests.
Necessary elements of corruption:1) personal powers- powers refer to how a person should behave in certain circumstances. Usually they are
established:● in a specific legislative (e.g. ethical principles for civil servants are established in Law
on Public Service of the Republic of Lithuania, Law on the Adjustment of Public and Private Interests in the Public Service of the Republic of Lithuania, etc.);
● procedures or regulations approved by organizations (e.g. enterprise's internal code of conduct, code of ethics, employment contract, job description, etc.)
2) conduct contrary to held powers- conduct may occur:● by active actions when conducting contrary to laid down regulations;● omission when necessary action is not taken intentionally;3) seek of unjustified gain for oneself or others- gain may be aimed to:● oneself;● friend, colleague, family member;● any other person;- potential nature of gain:● material benefits (money, property, services);● intangible benefits (cost avoidance, experience, reputation, etc.);4) damage- damage may be done to:● the state, society (public interest);● enterprise, institution, or organization of any kind of legal form;
32 Internet access: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/com/com_com(2011)0308_/com_com(2011)0308_lt.pdf.33 Internet access: http://www.SIS.lt/documents/soc_tyrimai/Korupcija_privaciame_sektoriuje._LTI.pdf, Corruption in the Private-sector: Normative Concept and the Prevalence in Certain Fields,, P. Ragauskas, E. Kavoliūnaitė-Ragauskienė, E. A. Vitkutė, Vilnius, Justitia, 2014.
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● natural person or group of natural persons;- nature of damage may be:● material (property loss, losses, etc.);● intangible (loss of reputation, investment, loss of revenue, etc.).Corruption offences34 – an administrative offence, breach of labour discipline or
misconduct in office committed by a civil servant or a person equivalent as such, directly or indirectly, seeking or demanding material or other personal gain (a gift, promise or privilege) for himself or another person, also accepting it while abusing his official position, exceeding his powers, failing to perform his duties, and violating public interests as well as corruption-related offence.
Examples of typical corruption-related offences may be active and passive bribery, including offering gain as incentive to commit unlawful or ethics infringing action, offer, delivery and acceptance or request. Gain may be given in different forms, such as gifts, loans, taxes, bribes (side payments), reward (“commissions”), and otherwise, for example tax reduction, visa issuance, services, sponsorship, and donations. In many cases, corruption is linked to other unlawful activities such as price fixing, manipulation of invitations to make offers, money laundering, unjustified enrichment, blackmailing and fraud. Corruption is found in less specific actions, such as favouritism and nepotism allocating state officials, trading in influence and favourable decisions, practice related to clienteles with doubtful exemption from liability, amnesty and privatization, giving bribes to the police and judicial authorities, funding political parties, and falsifying election campaign results Causes of corruption may be not governed or poorly managed conflicts of interest, such as offers to former public officials without activity breaks to take profitable positions in enterprises they managed (revolving door).35
2.2. Corruption among Public and Private-sector Entities
To public opinion, corruption is mostly widespread among the Public and Private-sectors. In this corruptive bargain, representatives of the Public-sector, whose duty is to satisfy and defend public interests, perform actions or make decisions useful to representatives of the Private-sector for unjustified gains (bribes), which affects the public interest.
The Public-sector – state and municipal institutions and agencies under state and municipal budgets and performing public administration.36
Public administration37 shall cover: ● administrative decision-making;● control of implementation of legislative and administrative decisions;● administrative services established by law38;
34 Paragraph 3.2 of the National Anti-Corruption Program of the Republic of Lithuania for 2015-2025. Internet access: https://www.e-tar.lt/portal/lt/legalAct/25c529d0cbcd11e4aaa0e90fce879681.35 Internet access: http://eur-lex.europa.eu/legal-content/LT/TXT/?uri=CELEX%3A52014IE6520; http://www.eesc.europa.eu/?i=portal.en.ccmi-opinions.34276.36 As said above, “Public-sector” an a context of the Guide of an Anti-Corruption Environment should be understood as state and municipal institutions as they are defined in Article 2(3) of the Prevention of Corruption Law of the Republi of Lithuania, as well as other entities of public administration as defined in Article 2(4) of the Law on Public Administration of the Republic of Lithuania.37 Administrator 2(1) of the Law on Public Administration of the Republic of Lithuania.38Administrative service – activities of an entity of public administration comprising the issuing of authorizations, licenses or documents confirming legal facts, the acceptance and processing of persons’ declarations, the provision of
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● administration of public service39;● internal administration of entity of public administration40.In this guide, enterprises such as state and municipal enterprises are not included, as they
act in accordance with business principles. State and municipal enterprises are suggested to take into consideration the Guide of Anti-Corruption Environment for Business to control corruption.
Private-sector covers all private legal persons, whose objective is to satisfy private interests (in most cases, to earn money and make profit) and whose activity, due to complying with the requirements laid down in legal acts in greater or lesser extent, is supervised by the Public-sector, as well as state and municipal enterprises, joint-stock companies, who are not authorized to perform public administration.
Corruption offences, of which participants are entities of Public and Private-sectors, usually are classified as follows:
Systemic (grand) corruption – cases, where business entities pay bribes to civil servants or politicians holding management positions in resolution to make favourable decisions to their business or to receive government resolutions. This kind of corruption is typical in the following fields41:
• law making (when politicians with legislative powers are bribed in pursuance of legal regulation favourable to a narrow group of private business interests);
• public procurement (when bribed civil servants patronize specific business entities by determining qualification requirements restricting competition for suppliers, or technical specifications for purchase objects, etc.);
• construction and special planning sectors (when bribed persons acting under the responsibility of the State unlawfully issue construction permits, change land use, approve detailed plans, etc. by violating legal requirements);
• environmental sector (when corrupted environmental officer unlawfully issue pollution permits, coordinate environmental impact assessments, negligently control waste management businesses, etc.);
• justice system (when judges are bribed in pursuance of favourable decisions during the trial; this field is characterized by an exceptional immunity and wide discretion in decision-making).
The systemic (grand) corruption is characterized by the following:- This type of corruption has both negative and material influence on Lithuania's political
and economic system. - This level of corruption has larger amounts of bribes, and bribers (usually business) and
bribe recipient usually have developed long-term, mutually beneficial corrupt relationship.
consultations to persons on issues regarding the competences of the entity of public administration, the provision to persons of information of the entity of public administration as defined by the law, the performing of administrative procedure.39 Public service – activities of legal persons controlled by the State or municipalities when providing social services for persons, as well as services in the spheres of education, science, culture, sports and other services provided for by laws. Other persons may also provide public services in the cases and in the manner provided for by laws.40Internal administration – activity aimed at ensuring independent functioning of an entity of public administration (structure arrangement, management of documents, personnel, available material, and financial resources) so that it could engage in public administration.41 More information on important issues related to corruption and corruption risk factors determined in different fields of the Public-sector: http://www.SIS.lt/documents/nkkp_2015-2025/rastas_TKKK_del_rizikos_veiksniu_2016-02-08_(1).docx.
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Systemic corruption not only reduces Lithuanian residents’ trust in the democratic state management, promotes disrespect for the laws and destroys concept of democratic state, but also leads to huge economic losses. Economic losses occur through loss of state budget revenues, decrease in investments, low economic growth, or distortion of market competition.
Petty (household) corruption – unlawful reward paid by residents to lower rank civil servants in resolution to avoid penalties or to obtain a public service without bureaucratic procedures or possible delays in decision-making. Major preconditions for manifestation of corruption appear to be in cities and district municipalities, health care institutions, as well as institutions and agencies which are authorized to perform administrative supervision and apply administrative penalties (e.g. police, State Tax Inspectorate, customs, etc.)
Petty corruption is characterized as follows:- This type of corruption involves a wider circle of people and has a particularly negative
moral impact on Lithuanian population. - This type of corruption is faced in a daily environment; therefore, even single negative
experience creates the impression on a widespread bribery involving all levels of government. - A belief that the government is very corrupted promotes citizens’ disappointment in state
institutions, distrust of politicians and Government. It creates the belief that giving a bribe is the best and fastest solution to the problem. Due to the said reasons, part of the corruption crimes is committed on initiative of population itself.
2.3. Corruption among Private-Sector Entities
Information on cases of corruption in the Private-sector or among entities of the Private-sector in practice is not published in the public space. This is due to several reasons:
- business entities carefully hide such information in resolution to protect its reputation;- this problem has not been thoroughly investigated, and the extent was unknown, therefore
no proper attention was paid to it;- the society treats such offences in the Public-sector not as some corruption-related
offences, but non-culpable fraudulent act and partly tolerates it.In 2014, scientists from the Law Institute of Lithuania carried out a survey42 which
revealed that corruption in the Private-sector is not alien in Lithuania. The survey identified the following different corruption risks in the following fields:
● in the media (withholding (non-publication) or adjustment of certain information that is not beneficial to a person giving a bribe; libel and other form of crackdown on or actions detrimental to the interests of persons who have fallen into disfavour with representatives of the media, as well as rivals or other contractors (etc.);
● in sports (violations of voting at sports organisations and federations, bribery, gifts and other forms of reward falsification of sports scores; manipulation of the course of a sports competition, its results or statistics, etc.);
● in education (selling good grades, examination tasks, diplomas, data on examinations for entering higher education school; buying good ratings for a higher education school, etc.);
42Corruption in the Private-sector: Normative Concept and the Prevalence in Certain Fields, P. Ragauskas, E. Kavoliūnaitė-Ragauskienė, E. A. Vitkutė, Vilnius, Justitia, 2014. Internet access: http://www.SIS.lt/documents/soc_tyrimai/Korupcija_privaciame_sektoriuje._LTI.pdf.
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● in providing legal services (representing different parties at the same time; providing fictitious services in resolution to launder money; dishonest representation of interests, etc.);
● in providing personal healthcare services (payment seeking to receive a treatment skipping queues; falsifying various health notes at the request of the patient; prescribing inappropriate, ineffective, and more expensive medicines, favouring pharmaceutical companies, etc.);
● in pharmaceutics (fictitious clinical tests; unlawful support for doctors and pharmacists; market sharing, etc.);
● in providing business services (peculation or waste of enterprise asset; leaking confidential information to rivals; reconciling offers; cartel agreements, selecting suppliers who pay bribes, etc.).
Thus, the Private-sector is characterized by corruption offence in its nature and purposes are equivalent to offences committed in the Public-sector, in this case, the damage is usually done to one or more business organizations, and not to the state.
It should be noted that the shareholders of an enterprise often do not realize the mast of damage done to business organizations due to improperly developed internal rules of conduct, employee job descriptions, and arising wide discretion to company managers or ordinary managers, as well as due to ineffective control of the latter. Thus, employees authorized by an enterprise with entrusted power usually use enterprise asset for personal purposes, in its sole discretion select different suppliers who pay illegal reward, and not the ones offering goods and services with the best price and quality ratio.
Due to such unfair actions of employees’ business organizations experience a triple damage: 1) receive lower quality goods or services, 2) buy more expensive goods and services, 3) loose good reputation in the market, and in public when information becomes public.
2.4. Results of Sociological Analysis on the Prevalence of Corruption
Most international business organizations, deciding on business development and investment trends, often perform national business environment analysis where the corruption factor is distinguished as one of the important factors effecting business conditions. In the world, there is a wide range of sociological and scientific surveys that assess the level of corruption or its prevalence in a certain country, corruption impact on society and business, evaluate actions of implementation of corruption prevention in the Public and Private-sectors, effectiveness, and payback of these actions.
More significant surveys include the following:1) “Transparency International” Corruption Perceptions Index43
This is one of the best known and most recognizable surveys assessing the state’s ability to control corruption as a phenomenon, by measuring the extent of corruption in the Public-sector and politics.
43 More information on the survey results are available at internet web page https://www.transparency.org/cpi2015.16
In accordance with the results of the survey of Corruption Perceptions Index44 carried out by “Transparency International” in 2015 (hereinafter – CPI), Lithuania’s score was 61 out of 100 possible scores and was in 32 position out of 168 countries in the list.
The perception of corruption is assessed by a certain number on a scale out of 100, from 0 to 100, where 0 indicates that a state is very corrupt, and 100 indicates that a state is very transparent.
Lithuania was in 16 position among the European Union member states. Since 2013, Lithuanian CPI is consistently growing and within 4 years it grew by 7 points.
It should be noted, that CPI indicates the level, at which the prevalence of corruption among officials and politicians of the Public-sector, their non-transparent relationship with the Private-sector in states is perceived, i.e. the index does not reflect the real situation of corruption, but opinion of certain states and foreign experts and representatives of business which is based on their perception of how the prevalence of corruption is in a state. It is important to inform the society (as well as the Public-sector) on cases of corruption and its actual prevalence that it does not seem that there is higher corruption than it is, thus the prestige of a state would not be unduly undermining in international business market.
2) Eurobarometer sociological survey “Businesses’ Attitudes towards Corruption”45
This and many other studies have revealed a tendency that representatives of business, who declared that turnover of an enterprise they represent has recently increased, were less likely to complain about bureaucracy, corruption, administrative burden, and other factors aggravating business conditions than representatives of business, which turnover of represented enterprise has decreased. This implies that business, by often accusing the current legal regulation and alleged corruption, possibly trying to justify their misfortune.
The Eurobarometer survey also revealed that entrepreneurs who believe that corruption has affected their chances of winning a tender of public procurement decreased by 8%.
The surveyed entrepreneurs consider that corruption is not a major problem in business development and it takes the last place out of 9 factors having a negative impact on business. Other negative factors affecting the business environment are the following: 1) high tax rates; 2) rapid change in legal regulation and policy; 3) low availability of funding and credit; 4) lack of actions to recovery of debts; 5) complexity of administrative procedures; 6) nepotism and protectionism; 7) restrictive regulation of labour relations; 8) lack of infrastructure.
Less than a third (28%) of Lithuanian entrepreneurs identified corruption as one of the problems negatively affecting business. Nevertheless, in their opinion, this phenomenon is quite widespread, even 82% of respondents believed that way, it is 7% less than in 2013.
Moreover, even though Lithuanian entrepreneurs believe that nepotism46 and cronyism47 are relevant to the Public-sector, they recognize that this problem is more prevalent in the Private-sector.
44 CPI is one of the best known surveys on perception of corruption carried out every year. This index is an important information source to international political institutions, business and financial structures considering whether to invest or develop new business projects in the state. 45 Survey results are available at internet web pagehttp://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/FLASH/surveyKy/2084.46 Nepotism – patronage of family members and relatives.47 Cronyism– patronage of friends.
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3) Lithuanian map of corruption 201648
In 2016, during the implementation of National Anti-Corruption Program for 2015-2025, SIS initiated a study “The Lithuanian Map of Corruption 2016” carried out by a public opinion and market research centre “Vilmorus“. Three target groups were researched: Lithuanian residents, business executives and civil servants.
The survey results showed the growing intolerance for corruption of civil servants. For example, there is an increasing number of servants, who believe that corruption is an obstacle for them to live well (such persons represented 75% in 2014, whereas 84% in 2016). Likewise, a part of civil servants, who consider corruption as a major obstacle for the life of the State, increased from 64% (in 2014) to 77% (in 2016).
Accordingly, the part of civil servants, who believe that a bribe helps to solve problems decreased from 54% in 2014 to 45% in 2016. It should be noted, that in 2016, 12% of the civil servants, i.e. almost twice less than in the previous years (23% in 2014), indicated that they would give a bribe.
Positive changes were observed in the business environment: there is a decreased percent of business executives, who indicate that bribes save time managing administrative procedures (from 27% to 23%), and that corruption “connects” inefficient state mechanisms (from 24% to 21%). There is a decreased percent of respondents indicating that civil servants need to be paid in dealing with them (from 19% to 13%), and that an amount of payments and a value of gifts are known in advance (from 17% to 12%).
The survey revealed positive changes in public experience in corruption. 16% of residents have paid a bribe within twelve months (24% in 2014), and 33% have paid a bribe within 5 years (45% in 2014). This is the lowest result since 2002. 5% of heads of enterprises have paid a bribe within 12 months, and 15% have paid a bribe within 5 years. The result has not changed much since 2014, however it is one of the lowest since 2002. 6% of civil servants indicated that they have paid a bribe within 12 months, which is significantly less than in 2014 (17%). There is fewer residents, who have paid a bribe within 5 years (from 35% to 19%).
When comparing answers of three target groups on future outlooks, it shows that residents are the most critical in terms of corruption process. Entrepreneurs go after them and civil servants are the most optimistic. 50% of civil servants said that the extent of corruption decreased within 5 years, 15% of respondents indicated that corruption increased. It is better assessment than in 2014 and 2011. There is an increased number of respondents indicating that corruption decreased within 12 months 36% of respondents (in 2014 it was 25%). Most respondents predict that corruption will reduce within the next 3 years (57%, previously it was 41%).
Positive trends include the fact that the structure of reasons not to give a bribe is changing. Civil servants of target groups mostly indicated that giving a bribe is against their beliefs (58%), however the rate among all groups increased the most – by 16% (it was 42%). Moreover, it is the largest index value since 2008.
It should be noted, that the biggest positive changes in an Anti-Corruption environment assessment in 2016 were recorded among civil servants; their survey results were more positive than residents and representatives of business.
48 Internet access: https://www.SIS.lt/documents/soc_tyrimai/2016_Korupcijos_zemelapis_ataskaita.ppt.
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Indicators of residents’ Anti-Corruption potential increased in general in 2016: 39% of residents are aware of where to apply for cases of corruption (27% of residents in 2014), 23% of residents would report (18% in 2014), and 12% would like to participate in Anti-Corruption activities (the rate remained unchanged since 2014). Indicators of heads of enterprises are higher in this respect: 61% of them are aware of where to apply for cases of corruption, 35% would report, and 18% would like to participate in Anti-Corruption activities. Even more of civil servants are aware of where they should to apply: 72% of civil servants are aware of it (it was 61%), 42% would report on corruption (it was 29%), and 31% would participate in Anti-Corruption activities (it was 22%).
On the other hand, there is still a large gap between the real and perceived corruption in Lithuania. For example, 47% of residents indicated that Disability and Working Capacity Assessment Office is very corrupt, however, 81 respondents have directly dealt with this office within five years. The situation is similar with the courts: in accordance with residents’ opinion (31%), courts fall into the top five of the most corrupt institutions, but only 48 respondents have dealt with courts within the past five years (i.e. 4.8%). Thus, most residents are aware about a possible corruption in certain institutions from indirect experience. In this case, television remains the most important information source on corruption processes in all target groups. In 2016, 60% of residents, 38% of heads of enterprises, and 30% of civil servants indicated television as a source to form the most reliable opinion about the corruption and its extent in Lithuania.
4) Index of Economic Freedom49
The Index of Economic Freedom is annually created by the Heritage Foundation and the Wall Street Journal. This survey assesses states in accordance with criteria such as business freedom, regulation of labour relations, government expenditures, financial freedom, etc. Freedom from corruption is one of the parts of the survey. Lithuania took the 13th place among 178 countries in this index in 2016. In comparison with the previous years it climbed two positions up, and its overall rating increased by 0.5 points up to 75.2 percent. This is the best rating for Lithuania since 1996. On the other hand, Lithuanian regulation of labour relations and freedom from corruption was assessed one of the worst scores.
2.5. Harm Caused by Corruption
Corruption is a dangerous and complex phenomenon that causes serious damage to the state, society, and human rights. Corruption is related not only with integrity and ethics, but also with economic issues, since it damages the circumstances and conditions of legal economy, i.e. fair trade, investment, and competition in the state. Based on the data of the World Bank and the World Economic Forum, economic competitiveness is closely related to the government's ability to control corruption. Surveys show that control of corruption in the EU is closely related to conditions for business, and corruption has a negative impact on private investments.50 Due to strong relations of member states and increasing scale and pace of cross-resolution cash float, increasing spread of risk of corruption in the EU. Corruption has become a transnational phenomenon and therefore can no longer be assessed as a criminal offence established in the national criminal law. It can be compared to contagious disease, to which no one is resistant, – appropriate “health prevention” is necessary in resolution to avoid it.
49 Survey results are available at internet web page: http://www.heritage.org/index/country/lithuania.50 Internet access: http://eur-lex.europa.eu/legal-content/LT/TXT/?uri=CELEX%3A52014IE6520.
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Based on preliminary provisional calculations, corruption costs approximately 120 billion Eur per year to the European Union taxpayers. This amount is almost equivalent to the total annual budget of the EU and totalling 1% of EU GDP.51 The estimates show that the cost of corruption equals more than 5% of global GDP, which is about 2.6 trillion US dollars.52
Corruption may violate fundamental human right to health care, asset, education, etc. Corruption increases price of state investments, reduces its budget, increases debts, undermines the attractiveness to foreign investments. It distorts market mechanisms and creates unequal conditions for business development, and increases prices. Corruption reduces revenues to the budget, when bribes help to avoid taxes, penalties, and other mandatory payments, it also deteriorates the quality of public services.
Corruption may cause a variety of risks to both natural and legal persons.The risk of legal prosecution. Corruption is a high legal risk for both enterprises and its
employees, as well as civil servants – it is the risk to incur criminal and civil liability, responsibility for business partners acting on behalf of an enterprise. Enterprises with a business abroad have additional risk of being held liable under the laws of other countries.
The risk of costs. The cost of participation in corrupt activities may be very high in terms of penalties, compensations for damage, etc. In the worst cases, corruption may even pose a threat to the existence of an enterprise. The reputation damaged by corruption may result in lost business opportunities. For example, corrupted enterprises have limited opportunities to participate in tenders for public procurements.
Financial risk. The real threat to business – the inability to grow financially, and to attract investors. Corrupted enterprises find it difficult to get loans from national and international financial institutions. If it becomes clear that a beneficiary is involved in corruption, existing loan agreements with creditors and financial institutions may be terminated. Responsible investors refuse to invest in shares and may withdraw existing investments, if they become aware that the enterprise is involved in a corruption scandal.
The risk of losing reputation. Damaged reputation affects a value of enterprise, share price, future business opportunities, prestige of state institutions, and confidence in the entire state’s legal system. Enterprises with unethical activity reputation are considered as undesirable to business partners, they lose clients, and it is more difficult to attract good employees.
Corruption causes serious damage to both the state and business, as well as to everyone of society. Among the high-profile corruption scandals, which have affected all entities listed above, include further described case between Lithuania and foreign country.
Schools in Sichuan ProvinceDuring the earthquake in the Chinese province of Sichuan in 2008, over 7,000
schoolrooms collapsed (mostly in rural areas), reportedly leading to the death of nearly 5,000 students, and the injury of over 15,000 students.53 It draw attention because in some areas they were the only buildings that collapsed, while old buildings nearby were unscathed. It is alleged that local government officials and construction companies were negligent in the construction of schools, and that they ignored civil engineering standards, saved materials, and used low quality materials.
51 Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee: Fighting corruption in the EU (COM(2011) 308 final of 6 June 2011). Internet access:http://register.consilium.europa.eu/doc/srv?l=LT&f=ST%2011237%202011%20INIT.52 Internet access: https://www.oecd.org/cleangovbiz/49693613.pdf.53 Internet access: https://en.wikipedia.org/wiki/Sichuan_schools_corruption_scandal.
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Shopping centre "Babylon" in PanevezysIt should be mentioned a partly similar model from Lithuanian judicial practice, where
certain accidents managed to be avoided. The case was initiated when it was found that the representative of the Fire and Rescue Department under the Ministry of the Interior of the Republic of Lithuania gave unlawful and unjustified instructions to subordinate employees to sign the act of recognition of the suitable use of the shopping and entertainment centre “Babilonas”, although they knew and understood that this object had substantial violations of fire safety actions and deviations from the project documentation (e.g. the amount of fire alarm sensors was insufficient, and their positioning did not meet the building’s standards). These actions violated the Regulations for Installation of Electricity Facilities and General Fire Safety Regulations, thus causing a real threat to public safety, human health, and life, which could not be avoided in case of disaster and fire.54
2.6. Statistics for Corruption-Related Criminal Cases in Lithuania
Number of corruption-related offences to public service and public interests (hereinafter – PSPI) slightly decreasing, moreover, most offences solved in Lithuania consists of petty corruption. For example, in 2014
● 1 597 corruption-related offences were reported, i.e. 2.9% less than in 2013;● of which 1 104 cases of bribery, which is 69 % of all criminal offences of recorded
criminal offences to PSPI;● the police recorder 91% of bribery cases, so it can be said that the most of recorded
criminal offences were cases of petty corruption of PSPI.One of the major Anti-Corruption agencies is SIS, which investigates and discloses
complex, systemic corruption-related offences in the Public-sector. SIS Criminal prosecution trends55: slightly decrease in number of pre-trial investigations, however investigations are
becoming more complex, focus on criminal offences committed by the highest rank politicians and civil servants;
the clear majority of suspected persons in the highest positions are identified during investigations initiated by the SIS.
increasing number of pre-trial investigations, which are initiated following a complaint or report; it shows the increasing intolerance for corruption in public life;
85% of persons accused in cases of corruption examined in courts were convicted.
54 Panel of Judges of the Criminal Division of the Supreme Court, case No. 2K-359/2010, 29/06/2010.55 Internet access: http://www.SIS.lt/lt/menu/SIS-veikla/veiklos-rezultatai/#turinys.
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3. LEGAL REGULATION OF ANTI-CORRUPTION
3.1. International Anti-Corruption Legislations
Lithuania participates in the main international conventions against corruption, which consolidate the commitment to criminalize corruption. It should be noted, that most of these conventions, among other things, oblige states to provide criminal liability for bribery in the Private-sector.
3.1.1. The United Nations’ Convention against CorruptionLithuania ratified this Convention56 on 5 December 2006. Article 21 of this Convention
establishes that each State Party shall consider adopting such legislative and other actions as may be necessary to establish as criminal offences, when committed intentionally during economic, financial, or commercial activities:
a) the promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a Private-sector entity, for the person himself or herself or for another person, in resolution that one, in breach of one’s duties, act or refrain from acting;
b) the solicitation or acceptance, directly or indirectly, of an undue advantage by any person who directs or works, in any capacity, for a Private-sector entity, for the person himself or herself or for another person, in resolution that one, in breach of one’s duties, act or refrain from acting.
Article 26 of the Convention establishes that each State Party shall adopt such actions as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in the offences established in accordance with this Convention; subject to the legal principles of the State Party, the liability of legal persons may be criminal, civil or administrative, such liability shall be without prejudice to the criminal liability of the natural persons, who have committed the offences; each State Party shall, in particular, ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.
3.1.2. Criminal Law Convention on Corruption
Lithuania ratified this Convention57 on 25 January 2002. Articles 2–11 of this Convention obliges the states to adopt legislative and other actions as may be necessary to establish criminal liability for bribery under its national law.
In addition, Article 19 of this Convention refers that each State shall ensure that legal persons held liable shall be subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.
3.1.3. Civil Law Convention on Corruption
56 Internet access: http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=289015&p_query=&p_tr2=l?p_id=289015&p_query=&p_tr2=. 57 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=161366&p_query=&p_tr2=.
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This Convention58 establishes that each state shall provide in its national law for persons, who have suffered damage because of corruption, to have the right to initiate an action in resolution to obtain full compensation for such damage. Such compensation may cover material damage, loss of profits and non-pecuniary loss.
3.1.4. Council Framework Decision 2003/568/JHA on Combating Corruption in Private-sector
Paragraph 10 of preamble of this Framework Decision59 refers that the aim of this Framework Decision is to ensure that both active and passive corruption in the Private-sector are criminal offences in all Member States, that legal persons may also be held responsible for such offences, and that these offences incur effective, proportionate and dissuasive penalties. Article 2 of the Framework Decision defines what is considered as active and passive corruption in the Public-sector.
3.1.5. OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
Lithuania is a candidate to join the Organisation for Economic Co-operation and Development (OECD60) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions adopted on 21 November 1997. On 9 April 2015, during the meeting, OECD Council unanimously decided to invite Lithuania to start negotiations over the membership.
Each Party shall take such actions as may be necessary, in accordance with its legalprinciples, to establish the liability of legal persons for the bribery of a foreign public official. The objective of the Convention – the export of corruption to foreign countries, especially cases, when more developed countries are trying to enter to the markets of the third countries by fraudulent means.
At present, Article 230(2) of the Criminal Code of the Republic of Lithuania (CC) establishes that a concept of a civil servant shall also include foreign civil servants and heads 61 of enterprises and organizations owned by the foreign countries. Therefore, Lithuanian business organizations, which develop their business non-transparently in any foreign country and pay bribes to foreign civil servants and heads of enterprises and organizations owned by foreign countries, may already be held liable in Lithuania (it should be noted that on 19 November 2015 a person, who offered or promises to give or gave a bribe to a foreign civil servant, was prevented from exemption from criminal liability following amendments to the CC).
58 Internet access: http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=197963&p_query=&p_tr2= 59 Internet access: http://www.SIS.lt/files/129_doc_file_1_115815.pdf.60 Engl. The Organization for Economic Co-operation and Development http://www.oecd.org/about/61 Article 230(2) of the CC civil servants holds equivalent to a person acting as a representative of the government, holding administrative powers or otherwise ensuring the public interest by working or performing duties on any other basis at a foreign state institution or European Union institution or agency, international public organization or international or European Union judicial institutions, or legal person or other organization, which is controlled by foreign state, also official candidates for such positions.
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It should be noted, that Lithuanian legal regulation in the context of bribery of foreign public officials in international business transactions is broadly consistent with the requirements of the OECD Convention and OECD guidelines.
Having regard to the OECD good practice guidance on implementing specific articles of the Convention62, on 10 November 2016, the Seimas of the Republic of Lithuania adopted the Law on Amendments to Articles 20, 225, 226, 227, 230 and Annex No. XII-2780 of the Criminal Code, which establishes the following:
- legal persons may be held liable under the Criminal Code when natural persons are not prosecuted for their offences;
- legal persons shall be held liable for criminal acts where an employee or authorised representative of the legal person has committed them not only as a result of insufficient supervision or control, but also on the instruction or by consent of an executive officer;
- legal persons may be held liable for offences committed to its benefit by a related legal person.
In accordance with the new legal regulation, parent organizations in Lithuania may be held liable for corruption offences in those states committed by Lithuanian subsidiaries operating abroad, where such offences were committed for the benefit of parent organization because of the instruction or by consent of a person having a leading position or authorized representative. An illustrative example of such situation, where US Department of Justice fined the company “Data Systems & Solutions” located in Virginia to pay U.S. $ 8.82 million fine for the fact that in 1999-2002 its representatives through intermediaries paid bribes to officials of the Lithuanian public institution Ignalina Nuclear Power Plant in resolution to provide services to the power plant.63
On the other hand, during analysis of the settled sanction practice, it was noted, that foreign experts criticize penalties for both natural and legal persons as not enough dissuasive. For example, in assessing the fine penalty for legal persons, conclusions of OECD Anti-Corruption Network for Eastern Europe and Central Asia emphasized that Lithuania has the lowest minimum fine for legal persons among surveyed countries. The conclusions also present a fact open to criticism that the largest penalty for legal persons in Lithuania was even below average of possible fine. It is noted that such penalties do not dissuade from property benefit directly or indirectly obtained from bribery or accepting a bribe. It also criticizes conditions for seizure of the property in Lithuania.
Such assessments suggest that existing regulation and developed practice in the international context, as well as fines for legal persons may be assessed as still requiring further review and changes in the direction of inevitable liability and its strengthening.
It should be noted, that information indicating possible signs of bribing foreign officials received directly or indirectly should be immediately forwarded to the Special Investigation Service.
See Annex 1 of the Guide of an Anti-Corruption Environment for more information on liability for bribing foreign officials and a role of diplomatic missions restricting bribery abroad (16.1. Role of Diplomatic Missions of the Republic of Lithuania in Limiting Bribery Abroad).
62 OECD Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Annex 1(B), 2009.63 Internet access: http://www.delfi.lt/verslas/energetika/generaline-prokuratura-tirs-kaltinimus-jav-imonei-davus-kysius-uzsakymams-ignalinos-ae-gauti.d?id=58948963.
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3.2. Legal Acts in Combating and Preventing Corruption in Lithuania
Lithuania has adopted number of laws regulating combat against corruption and issues of prevention of corruption. Hereby we will mention only the main ones.
3.2.1. Prevention of Corruption Law of the Republic of Lithuania
Global experience has shown that the focus on efforts to the causes of corruption, conditions for corruption and purposefully removing the risks for corruption, eventually establishes a framework for the development of transparent economic, higher quality of public services, the country's social welfare. The Law on Prevention of Corruption64 adopted in 2002 lays down the main principles, aims and tasks of corruption prevention in the public service and the Private-sector, prevention of corruption actions and a legal framework, and corruption prevention bodies as well as their rights and duties in the field of corruption prevention.
3.2.2. Criminal Code of the Republic of Lithuania
Criminal Code of the Republic of Lithuania65 (hereinafter – CC, CC of RL) lays down the elements of corruption-related offences. The main offences shall be bribery, trading in influence, subornation, abuse, unlawful registration of ownership of the asset, and failure to perform official duties. The persons, who have committed offences in the territory of the Republic of Lithuania, or Lithuanian citizens and other permanent residents of Lithuania, who have committed crimes abroad, will be held liable for offences, and all persons, regardless of nationality, place of residence, as well as place of the offence and whether the offence is penalized in accordance with local laws, shall be liable for offences laid down in Articles 225-227 of the CC (bribery, trading in influence and subornation), which shall be criminalized according to the international conventions and treaties signed by Lithuania.
It should be noted that not only civil servants (state politicians, public officials, judges, civil servants acting under the Law on Public Service and any other persons, who are work or perform duties on other basis provided by laws in the state or municipal institutions or agencies, who perform functions of a representative of government or hold administrative powers, also official candidates for such positions), but persons equivalent to civil servants, who perform functions of a representative of government or hold administrative powers, or otherwise ensure the implementation of the public interest by performing duties in institutions in any foreign country or the European Union, international public organization or international or the European Union judicial authority or legal person or other organization, which is controlled by a foreign state, also official candidates for such positions shall be held liable for the said corruption-related offences. Also, a person shall be held equivalent to civil servants working or performing duties on other basis provided by laws in the public or private legal entity or other organization, or is engaged in professional activities and holds appropriate administrative powers, or is entitled to
64 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.65 Chapter XXXIII “Crimes and Misdemeanors against Civil Service and Public Interest” of the Criminal Code of the RepublicRepublicRepublicRepublicRepublicRepublicRepublicRepublicpublic of Lithuania . Internet access: http://www.lrs.lt/sip/portal.show?p_r=15410.
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act on behalf of a legal person or other organization, or provides public services, as well as an arbitrator or juror.
Persons held equivalent to civil servants could be notaries, lawyers, assistant lawyers, architects, doctors, school principals, their deputies, etc.
3.2.3. Law on the Special Investigations Service of the Republic of Lithuania
Special Investigations Service is the main institution, which investigates corruption-related offences, as well as applies a variety of actions to prevent corruption. Law on the Special Investigations Service of the Republic of Lithuania66 adopted in 2002 lays down the objectives of the Special Investigations Service of the Republic of Lithuania, the legal basis of its activities, its tasks and functions, the organisation of the Service, its financing, ways of control of its activities, and the rights and duties of its officers.
3.2.4. Law on the Adjustment of Public and Private Interests of the Republic of Lithuania
The declaration of private interests is one of the most effective actions of prevention of conflicts of interest in the Public-sector that helps the servants to determine potential threats in their office and properly inform about them to direct leaders, colleagues, and society.
The objective of the Law on the Adjustment of Public and Private Interests of the Republic of Lithuania67 adopted in 1997 is to adjust private interests of persons employed in the public service and public interests of the community, ensure that holders of public office make decisions solely in terms of the public interests, secure the impartiality of the decisions being made and prevent the emergence and spread of corruption in the public service.
3.2.5. Law on the Chief Official Ethics Commission of the Republic of Lithuania
Chief Official Ethics Commission collegial authority was established with the adoption of the Law on the Chief Official Ethics Commission of the Republic of Lithuania68 on 1 July 2008, which is accountable to the Seimas, and which, within the competence assigned to it by law, exercises the supervision of persons employed in the public service and persons performing lobbying activities as well as the prevention of their corruption.
3.2.6. Law on Funding of, and Control over Funding of, Political Parties and Political Campaigns of the Republic of Lithuania
Subject of funding of political parties is relevant in almost all countries, which have modern democracy. The problem is that the political parties being in power and making decisions may not always represent interests of citizens, who voted for them, but make decisions favourable for natural and legal persons, who supported them during election.
The objective of the Law on Funding of, and Control over Funding of, Political Parties and Political Campaigns of the Republic of Lithuania69 adopted in 2004 is to ensure democracy of
66 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.9C9FA25983BC/StiOBRAAYr.67 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.C0E550D6ADF0/jYNNTvQiqq.68 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.789C6EE505FD/exkZadhAwF.69 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.CF812DA6E814/gVaWCGdpob.
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political campaigns, legality, transparency, and openness of funding of political campaigns, to regulate the procedure and control of funding of political campaigns.
3.2.7. Law on the Central Electoral Commission of the Republic of Lithuania
The Central Electoral Commission of the Republic of Lithuania was established with the adoption of Law on the Central Electoral Commission70 in 2002, which organises and conducts elections to the Seimas of the Republic of Lithuania, elections to the Office of the President of the Republic, elections to municipal councils, elections to the European Parliament and referendums, ensures that elections and referendums would be held in accordance with the principles of democratic elections established in the Constitution and laws of the Republic of Lithuania, guarantees uniform application of election laws and the Law on Referendum on the whole territory of the Republic of Lithuania, etc.
3.2.8. Law on Lobbying Activities of the Republic of Lithuania
The legal regulation on lobbying is necessary in resolution to control risks related to unlawful influence on political decision-makers. Law on Lobbying Activities of the Republic of Lithuania71 adopted in 2000 regulates lobbying activities, its control and liability for violations of this Law. The Law seeks to ensure publicity and transparency, as well as prevent illegal lobbying activities.
The new edition of the draft-law72 was registered in January 2015, and other new edition of the draft of law was registered in June 201673.
3.2.9. Law on Charity and Sponsorship of the Republic of Lithuania
The Law on Charity and Sponsorship of the Republic of Lithuania74 adopted in 1993 establishes the framework for providing and receiving charity and sponsorship, the purposes of providing and receiving charity and sponsorship as well as the providers and recipients of charity and sponsorship; it also regulates charity and sponsorship accounting and control where the providers and/or recipients of charity and/or sponsorship are entitled to reliefs from taxes and customs duties prescribed by the laws.
3.2.10. Law on State Control of the Republic of Lithuania
The Supreme National Audit Office was establishes with the adoption of Law on State Control of the Republic of Lithuania75 in 1995, which supervises the lawfulness and effectiveness of the management and use of the State property and execution of the State budget, promotes positive and effective public audit impact on public finance management and control system and on public
70 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.AF228880894E/aqCOhYzwnq.71 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.7B9B89F840E2/TAIS_437586.72 Internet access: https://e-seimas.lrs.lt/portal/legalAct/lt/TAP/82863470a2d311e49dedcf791a151bf8?positionInSearchResults=1&searchModelUUID=4cf83948-de6d-46f7-b79d-55c288a1f6d2.73 Internet access: https://e-seimas.lrs.lt/portal/legalAct/lt/TAP/01e95ab0295811e6a222b0cd86c2adfc?positionInSearchResults=0&searchModelUUID=4cf83948-de6d-46f7-b79d-55c288a1f6d2.74 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.C0FF21832A85/VaYEKaMJlQ.75 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.61BB05227699/vHVdNOBKRh.
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management oriented towards results and public needs, carries out the functions of the budget policy monitoring authority.
3.2.11. Law on the Seimas Ombudsmen of the Republic of Lithuania
Seimas Ombudsmen Office was established with the adoption of Law on the Seimas Ombudsmen of the Republic of Lithuania76 in 1998, which investigates citizens’ complaints concerning the abuse of office and bureaucracy of officers of state government and administration institutions, local government institutions, military institutions and institution ranking as such.
76 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.EC01522BCE65/TAIS_462906.28
4. CORRUPTION-RELATED OFFENCES, THEIR TYPES, CONCEPTS, AND PRACTICAL EXAMPLES
4.1. Bribery (Article 225 of the CC of the RL)
In the law, bribery is considered as a promise or agreement of a civil servant or person equivalent as such or through intermediary to accept a bribe, as well as a demand or provocation for bribe and accepting it. A bribe is promised or it is agreed to accept it, required, or provoked to give and it is taken legal and illegal actions or omissions of both for the public servant or a person equivalent as such.
A bribe is not only property, but also any other reward, i.e. unlawful or unjustified giving for personal gain for himself or another person. This reward can be both material and intangible, with economic value on the market or value-free, such as free service which normally would be payable, for example free home repair.
“V. M., as a civil servant, exercising its powers to organize repair works in school and its dormitory, intentionally on selfish purpose took advantage of interests contrary to his official position, performed unlawful action – for exceptional conditions to perform construction and repair work in school and dormitory V. M. received a bribe of more than 250 MSL for his and L. R. benefit paid by V. R., i.e., received free construction services and materials for construction and repair of residential house belonging to M. R.”77 In this case, the Court has recognised such actions of V. M. and V.R. as criminal. It should be noted that a bribe may be taken either directly (no intermediary) and indirectly (through a intermediary).
A bribe may be disguised in various civil transactions, for example, the Court recognized actions of D. L., A. Z. and A. J. offering V. D. to conclude the alleged transaction of design work for an entertainment park with the value of 150 000 Lt and promising to pay out 45 000 Lt in advance for a vote for A. Z. during the election. [...].78 In this case the Court noted that the material form and legal form of material award may be different, including the alleged or civil contracts with a bribable person.
Legal action or omission performing powers implies that an officer or person equivalent as such acts within its powers or without prejudice to the laws. Legal action or omission performing powers implies that that the bribe would infringe law or misuses powers.
Actions, for which a bribe is given and taken, does not have to be directly referred in the legislation regulating obligations of a person. It is sufficient that such actions would be within official opportunities of such person, i.e. that such person, by unfairly performing their duties, could create favourable conditions for decision that the briber may be interested in. For example, “G. G. was convicted because he, as an investigator, demanded for a bribe and accepted it for a closure of an investigation of A. P. There is no doubt that the investigator, overseeing a particular case and unfairly performing his duties, may lead to the closure of pre-trial investigation, even though it is in the competence of the prosecutor. Unlawfulness of G. G. actions, for which he demanded and accepted a bribe, is also beyond doubt.”79
A bribe may be given either before certain actions or omissions for benefit of a giver or another person, after such actions. In this case, the question arises for delimitation of a bribe and
77 Case of the Supreme Court, internet access: http://eteismai.lt/byla/37069875272823/2K-387-677/2015.78 Case of the Supreme Court, internet access: http://eteismai.lt/byla/139021456970239/2K-7-48/2009.79 Case of the Supreme Court, internet access: http://eteismai.lt/byla/131268252950701/2K-207/2013.
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gift. Case law follows the following rule: if a civil servant or a person equivalent as such, who accepts a reward, referred to as a "gift", after carried out actions or omissions, such “gift”, even though it was not demanded or provoked to give, or agreed or promised to accept it, shall be considered as a bribe, if it is found that it was actually given and accepted as a bribe, i.e. as a reward for action or omission of a civil servant or person equivalent as such performing powers of the interests of the giver. For example, “The convicted person claimed that forwarded items (a polyethylene bag with the inscription "Maxima", where along with value-free food products were two sealed envelopes with money) is a “gift”, not a bribe, because the juror A. V. has already been carried out the acts for which she gave a bribe. The Panel notes that [...] a bribe and a gift essentially differs, because a bribe is a result of an agreement between the two sides on certain actions, and a gift given in the absence of an agreement on certain actions or omissions of civil servant. However, a bribe and a gift connects the fact that they are given and taken for a reason, but for a behaviour of a civil servants preferred by a giver that may occur in legal or illegal actions or omissions performing powers. Thus, based on the law, criminal liability for subornation and bribery is not conditioned upon the presence or absence of the agreement, but a motive on offence, i.e. for what values are given or taken.”80
This offence is completed from at the moment it was made from any of the alternative acts (promise or agreement to accept a bribe, as well as a demand or provocation to give a bribe and taking a bribe). Actions of a perpetrator are considered to be a complete bribery, when he agrees or promises to accept a bribe, although later he abandons his intentions to accept a bribe. For example, the Supreme Court of Lithuania has noted that although “the case file shows that, although the appellant abandoned his intentions to accept a bribe on certain circumstances, he began to avoid further contact with the victim, but before he has made an agreement and promised to accept a bribe, and thus completed the offence.”81
A legal person shall also be held liable for such offence.
4.2. Subornation (Article 227 of the CC of the RL)
The law considers subornation as an offer, promise or agreement of any person, who reaches the age of sixteen, by oneself or through the intermediary, to give bribe or giving a bribe to a civil servant or a person equivalent as such. A bribe is offered, promised, or is agreed to give a bribe for legal or illegal actions or omissions of both for the public servant or a person equivalent as such.
This offence is directly related to bribery, therefore such features as a subject of a criminal offence (a bribe), circumstances (promising, offering or giving a bribe for legal or illegal actions or omissions), manner (a bribe promised both directly or indirectly) are interpreted in the same way as in the case of bribery.
A moment of completeness of this offence requires a separate discussion. A subornation is completed from the moment any of the alternative acts (promise or agreement to accept a bribe, as well as a demand or provocation to give a bribe and taking a bribe) it was made. Giving a bribe is considered completed from the time when the other person could take advantage of the benefits. A bribe is considered given when a briber gives it directly or indirectly to a civil servant or a person equivalent as such or the third party for preferred legal or illegal action or omission performing
80 Case of the Supreme Court, internet access: http://eteismai.lt/byla/234752499939092/2K-195/2006.81 Case of the Supreme Court, internet access: http://eteismai.lt/byla/60464088501202/2K-54/2010.
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powers of a civil servant or person equivalent as such. The theory states that the completion of giving a bribe is associated with the moment when a briber carries out all actions sufficient to allow the recipient to take advantage of the provided benefits, for example leaving a bribe in the office or putting it in a recipient’s pocket. Completion of an offer or promise to give a bribe does not depend on the bribed person's reaction to this action, the consent or refusal to accept a bribe, and a level of briber’s understanding on objectives. For example, “A. V. P. put 100 litas in a police officer's car and did not take it back even warned about the criminal responsibility. [...] Based on the said motives, his offence shall be classified as a completed offence.”82
In the case law, it is noted that if a civil servant or person equivalent as such does not accept a bribe due to circumstances beyond the control of briber’s will, offence of a briber also shall be classified as a completed offence. Moreover, the completion of subornation does not depend on whether a bribed civil servant or a person equivalent as such has already carried out preferred actions. For example, the Court assessed actions of D. L. as a completed subornation, when he, during a plan of A. Z. and A. J., offered V. D. a bribe in disguised form, i.e. Creating an impression that money will be lawfully paid for carried out design work by placing the transaction in written agreement, discussing the scope of offered work and payment in advance terms. Such actions were made on the eve of election, furthermore the agreement was signed at the meeting with A. Z. Thus, while V. D. was not frankly said, but he was given to understand that he should be grateful to A. Z. for the agreement, which value was 150 000 Lt, and that the relevant vote in election of the Mayor is expected from V. D.83
Such actions, when a person, seeking preferred activities of a civil servant or person equivalent as such, offers, promises to give, or gives a bribe without informing that person on any certain past or future acts or omissions, which can be both legal or illegal by performing powers, and offered, promised, or given awards (a bribe), shall be considered as a subornation. For example, the Court assessed that actions of both persons are criminal, when the defendant A. Š., a civil servant, from V. N., a director of JSC “(confidential data)” directly accepted a bribe of more than 250 MSL for his benefit – a 2005 Toyota RAV4 car with a value of 55 000 litas for possible future accurately indefinite A. Š. legal action or omission by performing powers.84
A legal person shall also be held liable for such offence.
4.3. Trading in Influence (Article 226 of the CC of the RL)
This criminal offence includes two elements. One of the parts of the criminal offence committed when any person, who has attained 16 years, alone or through the intermediary directly or indirectly offered, promised or agreed to give or gave a bribe to the third party in resolution that the latter may take advantage of one’s social position, office, powers, family, acquaintances, or any other influence to the state or municipal institution or agency, international public organization, civil servant or person equivalent as such, and would affect an institution, agency or organization, civil servant or a person equivalent as such, and the latter would perform legal or illegal actions or omissions performing powers under this influence. For example, the Court assesses persons’ actions as criminal, when L. B. and A. B. directly offered and forwarded A. P. a bribe of 800 litas in
82 Case of the Supreme Court, internet access: http://eteismai.lt/byla/206364863465273/2K-53/2008.83 Case of the Supreme Court, internet access: http://eteismai.lt/byla/139021456970239/2K-7-48/2009.84 Case of the Supreme Court, internet access: http://eteismai.lt/byla/195854219948819/2K-353-139/2015?word=2k-327.
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resolution the latter to affect civil servants of the II Territorial Division of the NDNT (confidential data) through its service and acquaintances and possible influence, that they would legally act for assessment of capacity level preferred by A. P., L. B. and A. B.85
The other part of this article defines the second element, when actions of any person, who has attained 16 years, committed alone or through the intermediary, when the latter promised, agreed to accept a bribe or provoked to give a bribe or accepted a bribe in resolution the latter to take advantage of his social position, office, powers, family, acquaintances, or any other influence to the state or municipal institution or agency, international public organization, civil servant or person equivalent as such, respectively promised for the bribe to affect the authority, institution or organization, a public servant or a person of equivalent status so that they lawful or unlawful act or refrain from performing their mandate. For example, “V. K. illegally, i.e. for a monetary reward promised L. G. to help L. G. husband Ž. G. to avoid actions of suppression – arrest, through his service and acquaintances and possible influence, and have accepted this bribe (2 000 Lt)”.86
When incriminating this offence, it does not matter whether intermediary promises to forward a bribe to the concerned person or want to take a bribe to himself. In this criminal offence, a promise to influence other persons may be categorical with a promise of success, or cautious with a promise to try. Case law assumes that the circumstances or person (a mediator) affected someone are not significant. A pursuit that a person (an intermediary) would affect the relevant persons, so that they would act under private interests of a briber, is a necessary attribute of this offence.
It should also be noted, that the case law assumes that the rate of commercial impact includes both cases where the intermediary has the real possibility to influence a contact person for a bribe, and intends to do so, and cases where a person is deceived on the opportunities of intermediary and (or) the intentions to influence contact person.87
A legal person shall also be held liable for such offence.
4.4. Abuse of Office (Article 228 of the CC of the RL)
In the criminal law, the abuse of office is understood as a civil servant or a person equivalent as such, who abuses one’s official position (the use of contrary to the interests of the service) or exceeds his powers. This criminal offence requires major damage that incurs to the State, the European Union, international public organisation, a legal or natural person,
Abuse of office mechanism is as follows: a servant or a person equivalent as such externally performs his duties, but of actions or omissions violates the principles of service and personal interests, not public, dominates in its activity.
The abuse of office is carried out by real actions (property values are using for other purposes, making illegal, invalid transactions, operating the work of subordinates on its own interests, illegally giving preferences or privileges to oneself or another person) or omissions, i.e. omissions of actions which were necessary while performing duties and powers. For example, E. B. was recognized guilty because, being a person equivalent to a civil servant, i.e. engaged in professional activities – having a qualification note issued by the Ministry of Environment of the Republic of Lithuania that allows her to hold a position of manager of maintenance of a special 85 Case of the Kaunas Regional Court, internet access: http://eteismai.lt/byla/237817595293167/1-979-347/2014?word=bk%20227%20str.%203%20d.86 Case of the Kaunas Regional Court, internet access: http://eteismai.lt/byla/64909061798974/1A-142-238/2015?word=provokacija.87 Case of the Supreme Court, internet access: https://www.e-tar.lt/portal/lt/legalAct/LITEKO.1692150BB851.
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structure building, and on its basis provide public services, being committed to prepare documentation for a tender of modernization of construction works, organize a tender of contract works, formalize received tender material, advise in evaluating received proposals and selecting the winner, acting together with A. K., a construction manager of JSC “B”, and seeking that the JSC “B” would win the tender for construction works of modernization of an apartment building, prepared conditions for a tender for construction works of modernization of an apartment building according to JSC “B” qualification data provided by A.K. That is, being aware that the qualification note of the JSC “B” is incorrect, in paragraph 5 of Annex 6 “Appendices to Conditions of the Tender” of the methodological requirements for investments in modernization of an apartment building projects and their implementation procedures, she added a condition “The giver is registered in the manner prescribed by law and has a valid qualification note issued by the Ministry of Environment of the Republic of Lithuania that allows to perform construction works in special structure buildings”, but did not specified the field of construction works and thus enabled the JSC “B” to participate in the tender.88
Attention should be taken to the fact, that the abuse of office does not have to be related to the regulations governing activities of public servant or a person of equivalent, and violations of prohibitions. Such actions that are not prohibited by any normative acts, but are contrary to the principles of service, are also recognized as abuse of office.
When deciding the question of harm, damage of monetary amount, as well as how much it is significant to person suffering from such damage (e.g. a serious damage for a victim, whose material situation is very serious, and such damage, which is not significant based on the monetary value) should be considered.
Non-material damage is recognized as major when it results from the violation of rights and freedom established in the Constitution of the Republic of Lithuania. Violation of rights and freedom established in the Constitution of the Republic of Lithuania, public service authority understatement or other fundamentally harmful effects (i.e. official name humiliation, institutions of authority understatement, reduction of trust in an institution) are generally recognized as a major loss not only to the person or office, but also the state. For example, the judicial panel had no doubt about the fact that actions of Z. P., holding a top position in the state service, i.e. Deputy Director, gave a manifestly illegal resolutions to subordinate employees to sign the act of recognition of the suitable use of the shopping and entertainment centre “Babilonas”, although he knew and understood that this object had substantial violations of fire safety actions and deviations from project documentation for practical implementation, discredits and undermines the authority of the Fire and Rescue Department under the Ministry of the Interior of the Republic of Lithuania as an institution, and thus the State incurred a major non-monetary damage.89
A legal person shall also be held liable for such offense.
4.5. Failure to Perform Official Duties (Article 228 of the CC of the RL)
In the criminal law, the failure to perform official duties is understood when a civil servant or a person equivalent as such (as well as employees) fails to perform one’s duties through 88 Case of the Supreme Court, internet access: http://eteismai.lt/byla/41690935135145/2K-50-648/2015.89 More information on this feature see cases of the Lithuanian Supreme Court, internet access: http://eteismai.lt/byla/104671739918328/2K-359/2010,http://eteismai.lt/byla/109407636020127/2K-247/2014, http://eteismai.lt/byla/202584340231506/2K-7-330/2011,http://eteismai.lt/byla/143911959481470/2K-7-335/2013, http://eteismai.lt/byla/69543881184366/2K-98/2014.
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negligence or performs them inappropriately. Failure to perform official duties is understood as failure to perform duties in the service, failure to perform of person's duties and functions, which belong to one’s competence. The improper failure to perform duties is understood as performance of duties at the wrong time, inadvertently, poor quality, superficially, although these actions seem to be as performance, but in the reality, they do not meet the interests of the state and service. For example, S. S. was convicted guilty because he, being a civil servant, negligently carried out examination of E. K., who was injured during a traffic accident, and did not suspected liver and spleen injuries, did not suspect internal bleeding into the peritoneal cavity, took no actions to stop the internal bleeding and corresponding actions of intra-abdominal organ injury diagnostic, i.e. seeing the severe patient's health condition and having to foresee possible consequences – death of a patient, did not carried out laparoscopic or laparocentesis, did not organize ultrasound, and without taking these actions and not having identified internal bleeding, he did not do the operation – lapatomy, E. K. A. died for these reasons.90
This criminal offense requires that the State, the European Union, international public organisation, a legal or natural person would incur major loss due to such actions of a civil servant or a person or a person equivalent as such fails. The feature of damage in this criminal offence is understood the same in case of abuse of office.
4.6. Nepotism
The society has an interest that persons in the public service would act professionally and provide equally freely available and the highest quality services of public administration. However, when one institution has several or more closely related persons, who are officially, not necessarily directly subordinate, or when a person receives a job by getting help from “influential relatives“, there is a real threat that not all decisions may be made impartially, objectively and correctly, as required by the interest of society. When a position in the public service is received and duties are performed with the help of relatives, usually holding leadership positions, the society may reasonably doubt whether such institutions:
– have the best professionals in their field (occupation);– all employees, without exception, are valued (encouraged, punished if necessary) only
for their professional qualities, competence, and results. Such expectations are cherished by the general society and all other persons working in the relevant state in municipal institutions and, who have no “influential relatives“ who would help to seek a professional career.
Nepotism (in latin nepōs – a grandchild, relative) – care and patronage of family members and relatives and another closely related persons (as well as life partners, partners91), through position, name, and power. Nepotism is one of the most common forms of corruption. It is practical expression of an abuse of office powers granted only to the relevant functions that are used for private or closely related personal purposes. Nepotism is directly related to conflicts of interest, which is prevented by the Law on Adjustment of Private Interests of Persons in the Civil Service. Compliance of the said Law is controlled by the Chief Official Ethics Commission (hereinafter – the COEC Commission). Nepotism occurs in those institutions where a person(s) with administrative powers personally decide issues of employment of closely related persons working
90 Case of the Supreme Court, internet access: http://eteismai.lt/byla/49948235468029/2K-62/2011.91 Internet access: http://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=2d7b3823-2681-4cb3-8fb5-1e4c272a8bc2.
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or seeking to be employed in the same institution (subordinate) very often. For example, a director of a state enterprise personally employed his son. Later he
promoted his son, sent him for internship to service missions to raise professional qualification which almost exclusively took place in foreign countries, often in exotic countries, favoured all service request addressed by his son. The said director of the enterprise justified his son behaviour by saying that his son “suits qualification requirements for the position best”. The COEC without discussing the rights of these people to work together in a single institution, found that the director had no right to personally deal with any issues of his son's service. Therefore, his behaviour is contrary to provisions of the Law on Adjustment of private Interests of Persons in the Civil Service (hereinafter – Law on APIPCS). Director ‘s son was fired from the office on behalf of the Prime Minister.92
Often, so called latent nepotism cases are more complex, where persons working in the public service, taking care of career opportunities or improvement of conditions to closely related persons not necessarily in the same institutions where they work, make illegal impact on the persons or officials that they make decisions favourable to relatives. Such cases are difficult to identify because usually such acts are carried out not in public and not officially. The impact on other persons not necessarily is direct and may occur in different forms.
For example, an employee of the Ministry performing his official duties took care to get more than one million litas financial support for one hospital. In exchange for this he sought a repair of one hospital department and that his wife would be appointed as a manager for that department. COEC Commission found that this servant violated the law because he was part of the decision-making process. He did not withdraw from relevant issues, and‚ by using his duties, powers and the name was influencing decisions of the hospital directors on the utilisation of support funds, having a personal interest in improving his wife’s working conditions.93
There is mistaken belief that nepotism will not occur solving issues of “daily” service on bonuses, premiums, missions, etc.
For example, a hospital director solved service issues of his wife who was working in his institution: employed her, and later appointed her to the head of the unit, sent her to internships, missions, determined salaries and bonuses, allowed vacations, signed trilateral agreements with the enterprises, according to which his wife in the hospital privately conducted clinical biomedical research, etc. The hospital director justified his behaviour to the Commission by the fact that he “was solving only such issues on his wife ‘s service in his institution, on which there is no reason for public and private conflict of interests. Therefore, in any of the said cases, he saw no need to exclude himself“. The Commission found that such behaviour of the hospital director violates provisions of the Law on APIPCS obliging to avoid any conflict of interest, and if it occurs – perform obligation to exclude himself.94
A conflict of interest for person employed in the public service occurs from the moment when one should decide (to take part in its adoption) or may have a real impact on other persons concerning employment of his relatives or during further service. Performing these actions, a person in a public service already puts himself in a situation of interest conflict and this behaviour violates 92 Decision No. KS-7 of the COEC Commission, 25 January 2007, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2007.93 Decision No. KS-65 of the COEC Commission, 30 November 2006, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2006.94 Decision No. KS-72 of the COEC Commission, 18 October 2007, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2007.
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mandatory provisions of the law. In this case, a “decision” is any action of person employed in the public service.
COEC recommends to exclude from preparation, consideration and deciding for relatives working in the institution:
– employment;– transfer to another office;– missions;– raising qualification;– vacations;– appointment of accessories, bonuses to the official salary;– promotion of the service;– punishments;– permits for alternative jobs;– performance of service assignments related to private interests of closely related persons;
– decisions of other service issues related to private interests of closely related persons.Performing any of these actions, a person in the public service would act in a conflict of
interest and such behaviour would violate mandatory provisions of law.It should be noted that the decision is irrelevant in compliance with other legislations and
seeming level of “compliance with the public interest”. There should not be any excuses that a person, in respect of whom a relevant decision was made, “as usual, got what he deserved according to the established procedure, like any other employees”, “objectively deserved”, “was worth it” “best knows his work”, etc.
For example, a head of public institution providing health service, paid bonuses to the salary for all his employees, including his wife. He explained his behavioural as “objectively inevitable (necessary) in the situation of the formal conflict of interest” because “under the current legislation, no other employee, except him was unable to do so”. He “could not exclude himself and sign such document because there would be an unreasonable delay for bonuses for all his employees”. According to him, “it would have been wrong to remove wife’s name from the list thus not give bonus just because to formally avoid a conflict of public and private interests, although to give a bonus was a sufficient legal basis”. According to him, “such delay would be illegal and unfair in respect of his wife, since she, having a legal basis for a bonus to the official salary should wait for indefinite period of time and thus loose a part of revenues”. The Commission did not question the right of the said person's wife to receive fairly and rightful reward for her work. It assessed just the behaviour of the head who made such decision in the situation of the conflict of interest. It was found that this person made no effort to avoid such a situation for many years in general, i.e. he did not apply to his direct manager, the Minister of Health, and did not informed or ask to solve the conflict of interest, arisen as soon as his wife was employed in his institution. The Commission assessed such behaviour of the head as a violation of mandatory provisions of the Law. The Minister of Health, having regard to the Commission's proposals, submitted written recommendations (resolution) to the said person for a prevention of conflict of interest related to his wife's work.95
There is mistaken belief that nepotism occurs only when the decision is favourable (useful) to a closely related person. No matter what the outcome is and what consequences (favourable,
95 Decision No. KS-53 of the COEC Commission, 17 June 2009, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2009.
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unfavourable, or neutral) it causes or may cause to concerned persons. Decisions which were made consciously in resolution to gain personal benefit for themselves or their relatives, already have features of corruption offenses.
For example, a head of a high school, solving his wife’s service issues, justified his behaviour by the fact that allegedly he was “absolutely objective” and that “no exceptions to the procedures has not been done for his wife”. The Commission found that this argument does not eliminate the conflict of public and private interest concerning the said person's wife working his institution, and that the head was obliged to perform provisions of the Law.96
There is mistaken belief that nepotism occurs only when closely related persons are related with direct official subordination. The circumstance when closely related persons work in the same state or municipal institution, and one of them has administrative powers but do not directly control their relatives, because they are not directly subordinate with employment relations and accountable, does not eliminate the threat of conflict of public and private interests. In this case, a temporary one-time conflict of interest is possible, which may be eliminated only properly performing relevant provisions of law.
For example, a director of a clinic personally solved issues of closely related persons working in his institution and justified his behaviour by the fact that these persons are not directly subordinate to him with employment relations. However, the Commission in its decision pointed out that the circumstance, that closely related persons are not linked with official, direct relations of subordination and control, does not eliminate the threat of conflict of Public and Private interests that may occur in their work. It was found that the director of the clinic acted in a conflict of interest and violated the mandatory provisions of the Law by not excluding himself and solving issues on closely related persons working in the clinic.97
Some laws (Article 9(3)(3) of the Law on Civil Service of the Republic of Lithuania, Article 97(2 and 3) of the Labour Code of the Republic of Lithuania, Article 11(1)(5), Article 15(4) of the Statute of the Internal Service of the Republic of Lithuania, etc.) generally prohibits (with some exceptions) closely related persons to work together in the public service, if they have relations of official subordination and control. In such situation, a conflict of interest for the activity of those persons would be permanent that could not be eliminated by any means, only with redundancy from the office of appropriate persons. Otherwise, they would be unable to perform their duties properly, because they would have to exclude themselves from their direct and daily functions. Thus, provisions of law essentially apply only in cases, when closely related persons working in the public service have no relations of direct official subordination and control, i.e. when a conflict of interest is a one-time, situational nature. In such cases, the law does not prohibit persons to work together in the same a state or municipal institution, but it does oblige them to perform their duties in an objective and impartial manner:
– to exclude themselves and not to accept (not to participate in making) any decisions related (and) with closely related persons’ private interests;
– to perform the prevention of conflicts of interest.As well, it is wrong to believe that there is no risk of nepotism when the decision-making
procedures are “fragmented” into many stages, and that not interested persons participate in the
96 Decision No. KS-72 of the COEC Commission, 9 September 2009, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2009.97 Decision No. KS-29 of the COEC Commission, 10 April 2008, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2008.
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decision-making.For example, a head of a public institution solved issues of his wife’s office working in the
same institution. One such decision – an appointment of single payment for his wife. Such person justified his actions by the fact that the said decision was made by a person under his authority, and he just “confirmed it with a signature”. Therefore, according to him, “approval of the document could not be related to the direct decision-making and approval of the list in no way affect the content of the decision”. The Commission found that such argument does not exempt from the obligation to avoid conflicts of interest, which in this case the said person has not carried out.98
Another example: a head of a high school solved issues of his wife’s office working in the same institution, justified his behaviour by the fact that, “despite the final, it was the fourth or fifth signature”. Because, according to him, “each of the persons who have signed before, are responsible for the appropriateness” of the decision. The Commission found that such an argument does not exempt from the obligation to avoid conflicts of interest, which in this case, the said person has not carried out.99
Causes of the nepotism may include the following:– private interest, i.e. taking care of job opportunities and welfare of closely related
persons;– service competence for by personally solving issues of closely related persons;– any other powers to affect other persons directly or indirectly by solving issues and
decisions of closely related persons.All such circumstances, for a person working in the public service who must make an
appropriate decision, cause a conflict of interest at which a person must exclude himself and take actions of prevention of conflicts of interest (elimination). Failure to do so, mandatory provisions of the law are violated:
– a prohibition to act in a conflict of interest;– an obligation to exclude oneself;– a prohibition to use duties, powers, and name in resolution to influence the decisions of
other people, causing a conflict of interest.The following examples of professions and areas “sensitive” for nepotism may be
mentioned:– health and social care (heads of hospitals, clinics, sanatoriums, care home, etc.);– education and training (pre-schools, schools, gymnasiums, lyceums, colleges, vocational
and higher education schools (universities, colleges); – statutory organizations (fire protection, police, resolution guards, customs);
– law enforcement authorities (courts and prosecutor's office).Thus, in resolution to prevent a reduction in public confidence in government powers to
fairly and flawlessly perform its direct functions, and prevent deterioration of quality of services provided by authorities, that eventually relevant state institutions become neutral in the eyes of society, become equally objectively institutions serving for a whole society, rather than closed structures governed by “people from their own clan” where dominates clientelism, favouritism, “family contracting methods” and similar illegal official protectionist relationships, it requires
98 Decision No. KS-86 of the COEC Commission, 6 November 2008, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2008.99 Decision No. KS-72 of the COEC Commission, 9 September 2009, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2009.
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effective prevention of nepotism. Persons working in a public service becoming aware that a closely related person(s) seeks employment in the same institution, he has and in the future, he should make appropriate decisions, and must immediately performs the following provisions of the Law:
– to exclude themselves;– to inform their direct manager in writing on a situation of interest conflict; – in accordance with the procedure, to supplement their private interests’ declaration with
clearly and understandable described situation of a conflict of interest;– to request that the direct manager (or, if a conflict of interest involves a head of an
institution – a person who employed him) provide written recommendations on how to properly handle the current conflict of interest. Typically, a resolution to solve relevant issues is forwarded to other persons to whom a conflict of interest in this situation does not arise;
– to perform recommendation provided by a direct manager (person who employed);– to ensure that a servant(s), whose service raises a conflict of interest, all service requests provide not directly to him, but to persons to whom a conflict of interest in this situation does not arise. Heads or authorized representatives of state or municipal institutions or agencies, have received appropriate requests from subordinates, must provide them advanced written recommendations on preventing conflicts of interest, because it is their direct duty, which failure to perform means violation of provisions of the Law (Article 22(2) of the Law).
Unfortunately, not all persons always comply with the established rules, or comply with them only formally. Example: a director of a hospital had a situation of conflict of public and private interests after his wife’s employment in his institution. A hospital founder, a municipality, allowed director at its discretion to solve such situation of conflict of interest, and did not interfere in this process, and neglected the process of its implementation and results. The said director personally issued a resolution instructing the subordinate hospital employee to solve issues of his wife’s service. It turned out that it was only fictitious, formally accepted and not performed resolution, because the director continued to solve all the said issues. The Commission recognized that this situation has occurred because the municipality did not control how the head of the subordinate medical institution complies with provisions of the Law. Municipality position to allow the director of the hospital to solve a conflict of interest in in terms the provisions of the law was incorrect.100
4.7. Conflict of InterestsThe Organization for Economic Co-operation and Development has pointed out that While
a conflict of interest is not ipso facto corruption, there is increasing recognition that conflicts between the private interests and public duties of public officials, if inadequately managed, can result in corruption. In such a situation, the society no longer believes and trusts in government.101
A conflict of interest is a situation where a person performing his official duties must perform a certain action, but such action (a part of official functions, resolution, etc.) is related not only to person’s direct duties, but also with his or close person’s private interest. The conflicts of interest are directly related to the following corruption phenomenon: previously said nepotism, clientelism – power-based political relations and decision-making procedures, as well as cronyism – patronage of friends.
100 Decision No. KS-72 of the COEC Commission, 18 October 2007, internet access: http://old.vtek.lt/sprendimai/sprendimai.php?page=sp_rezultatai&uzklausa=visi&year=2007.101 Internet access: www.oecd.org.
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The management and prevention of conflict of interests is an integral part of provisions of universal professional ethics (behaviour) established in the codes of ethics in the Public and Private-sector, also defined as a part of a duty of a servant to act impartially. Law on the APPIPS establishes definition of situations that may occur for persons working in the Public-sector and actions to avoid it, and to control if it has occurred. All persons working in the Public-sector must comply with mandatory regulations of this special Law. Direct official duties and performance of resolutions are not considered justifiable reason for exempting persons from the legal obligation to avoid conflict of interest: “The applicant indicates that he could not violate the Law because he acted within his competence established in the Law on Local Self-government and other legislations. In response to this argument, it should be noted that requirements established by law, restrictions and prohibitions are applicable to persons working in the civil service and performing their duties to be assigned to their competence” (Lithuanian Supreme Administrative Court decision in the administrative case No. A2-245/2007,18 May 2007). Duties opposition may occur in the activity of a person working in the civil service, but it must be solved in favour of the public interest: “On the one hand, such person has a duty to perform his direct official functions. On the other hand, such person also has the duty to avoid conflict of interest. Solution of this opposition of duties of a person working in the civil service is established in the Law. Based on Article 11 (1 and 2), the said opposition is solved by giving precedence over duty to avoid conflicts of interest. Therefore, claims that direct performance of official duties has precedence over the rules of public and private interests are unjustified”. (Lithuanian Supreme Administrative Court decision in the administrative case No. A442-1422/2010, 2 November 2010).
Regarding the public interest, it is necessary to mention its concept. Public interests mean the society’s expectations with regard to impartial and just decision-making of the persons in central or local public service102. Although law doctrine provides wider and broader concepts, but COEC opinion, the said statutory provision best reflects nature of the public interest. In addition, Law on APIPCS ensures provision of Article 5(3) of the Constitution of the Republic of Lithuania, that state institutions shall serve the people and establishes that decisions should be made impartially, objectively, transparently and take precedence over the private interests (Article 1).
The Constitutional Court of the Republic of Lithuania has noted that “the purpose of the civil service is to guarantee the public interest. Thus, the public interest in the public service must dominate in terms of the private interests. Conflict of public and private interests should be avoided in the civil service, preconditions for such conflicts should not be created. Opportunities provided by the public service may not be used for personal benefit. To ensure the public interest, it is necessary to avoid unjustified impact of illegal interest groups, even more, a pressure on civil servants making decisions in public administration and public services, or participating in drafting, coordinating, and/or controlling their implementation, etc.” (Resolution of 13 December 2004).
Behaviour of persons working in the civil service is supervised and controlled by the Chief Official Ethics Commission, which not only makes individual decisions on ethics of official actions of civil servants, officials, or politicians, but also provides them with pre-methodical recommendations for preventing conflicts of interest and in specific situations, advises persons or heads of institutions on how to behave in a way to avoid potential conflict of interests in their activities. Competence of the Chief Official Ethics Commission regarding issues on supervision and
102 Part 3 of Art.2 of Law on the Combination of Public and Private Interests in Civil Service of the Republic of Lithuania. Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.C0E550D6ADF0/jYNNTvQiqq.
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prevention of conflicts of interest was established by the Seimas of the Republic of Lithuania on 1 July 2008 in the adopted Law on the Chief Official Ethics Commission103.
Concept “decision” in the Law on APIPCS includes any action of a person working in the civil service.
Example. A person working in the civil service and performing his duties or resolution (from his direct manager, etc.) participates in activities of working groups, commissions, committees, writes official letters, prepares resolutions, represents, mediates, vising documents, etc. These actions are equivalent to a decision in terms of the Law.
A head of an institution, by giving an official resolution, finalized by visa, to subordinate persons to solve an official issue related to his private interests, acts in the situation of a conflict of interests and violates requirements of law to act objectively and impartially (see Lithuanian Supreme Administrative Court resolution in administrative case No. A575-923-08, 12 June 2008).
A conflict of interests may occur in any stage of preparation, consideration or making of a decision: “The applicant unreasonably states that he only signed a working group, which discussed decisions, but he did not change them and had no impact on them, so he was practically withdrawn from all decision-making and consideration. The applicant, by signing the contract, represented the municipal administration, i.e. acted in its interests, and therefore signing the document cannot be considered formal. Thus, the applicant has not complied with the obligations imposed by a duty and obliging to avoid conflict of interest and to exclude himself if such conflict occurs” (Lithuanian Supreme Administrative Court decision in administrative case No. I-5160-331/2013, 19 December 2013).
Decision + private interest = conflict of interestsConflict of interest is a situation where a person working in the civil service and
performing his duties (or resolution) must make (or participate in making) a decision, which is related to the private interest.
Example. Person working in a civil service, by performing the duties, must participate in solving issue of his/her spouse’s change of land use. Although a person does not take any action (do not prepare relevant documents, etc.), he is in a conflict of interest.
Conflict of interest is not yet a violation of requirements of the Law, but it is a clear signal that a person must immediately take procedures established in this Law in resolution to avoid conflict of interest. If a person does not perform any official action, it cannot be said that it already is a conflict of interest. Being in such risk zone, a person must perform self-exclusion procedure established in Article 11(2), which includes notifying the head and colleagues (if decisions are collegial) on a situation of conflict of interests. Private interests and circumstances which may give conditions to occur a conflict of interest, must also be indicated in the declaration of private interests under procedures and terms established in a Chapter II “Declaration of private interests” of the Law. These procedures must be performed by a person until a person performs any official action, and action related to his private interest.
Interest conflict occurred in official activities must be avoided by active and clearly expressed actions. Therefore, statements such as “my private interests were well-known”, “no one required me to exclude myself”, “decisions were made by an absolute majority, so my vote was not decisive”, “I participated passively, did not affect the decision” cannot be considered appropriate.
By assessing the self-exclusion institute established in Article 11(2) of the Law on APPIPS, a court has noted that self-exclusion and informing authorized persons on a situation of 103 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.789C6EE505FD/exkZadhAwF.
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conflict of interest is a prerequisite condition to acknowledge that a person working in a civil service properly performed provisions of the Law on APPIPS: “<…> not opportunity for minister to realize the obligation to self-exclusion, but his behaviour in the event of a conflict of interest to apply to the direct manager (Prime Minister) was important for self-exclusion. The head could not accept self-exclusion expressed by the Minister and could oblige him to continue the decision-making procedures. However, in this case, it is important that the Minister has not taken any concrete actions to avoid a conflict of interest by subjectively assessing his duties as a Minister (Lithuanian Supreme Administrative Court decision in administrative case No. A662-1121/2011, 4 April 2011).
Decision + private interest + offence = Violation of the LawIf a person working in the civil service enters a conflict of interest and does not exclude
himself, i.e. accepts or participates in deciding related to his private interest, he violates the obligation to avoid conflicts of interest and the duty to exclude himself.
Example. A person working in the civil service, by performing one’s duties, must participate in solving issue of one’s spouse’s change of land use. One takes this task: prepares relevant procedural documents, and performs other actions. Without self-exclusion from preparation, consideration and adoption of this decision, a person violates a statutory obligation to avoid conflicts of interest and the duty to exclude himself.
The obligation to avoid conflicts of interest is formal for persons working in civil service, and therefore violation of this imperative is not established based on consequences – whether there have been efforts (sought) to obtain specific personal benefit from the appropriate action. Thus, in the example, it does not matter whether the person acted in a conflict of interest, properly solved one’s spouse’s issues – whether has complied with the statutory procedures, or ignored them, whether received any benefit.
“Private interest includes different kind of, not necessarily, material, interest. It may be intangible, but directed to a benefit of specific person in the future” (Lithuanian Supreme Administrative Court resoolution in administrative case No. A556-30/2012, 16 January 2012, decision in administrative case No. A442-185/2012, 15 March 2012). In resolution to identify a qualification of a violation of law, it is sufficient to identify that the person working in the civil service, by deciding, did not acted in such manner, that there would be no doubt that such conflict exists. It is therefore not relevant whether the decision is beneficial for in the civil service working person’s spouse's relatives, since even useless decision may cause a conflict of interest to close person. The conflict may be caused by a person’s possible partiality in decision-making, a positive or negative attitude. Therefore, a public servant in making decisions must avoid even the appearance of a partiality. Such interpretation of the law is based on the purpose established in Article 1 of this Law, which is intended to establish partiality in making decisions” (Lithuanian Supreme Administrative Court decision in administrative case No. A261-3154/2011, 28 November 2011).
Conflicts of interest may include the following:• Real. A person must solve a service issue related to existing private interests in the
current time, “here and now”.• Possible. A person working in the civil service has private interests, for which by
performing official duties, certainly will have to decide in the future whether or not to participate in their adoption.
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The existing and potential conflict of interest, if they are not solved in an appropriate manner, is damages a public service reliability, its reputation.
Chief Official Ethics Commission has adopted several resolutions, which provided methodological guidance on the methods and means how persons working in the public service should eliminate a conflict of interest occurred their activities:
- resolution104 of 11 May 2011, No. KS-41 “On the obligation to avoid conflicts of interest and the duty of self-exclusion”;
- resolution105 of 24 February 2016, No. KS-18 “On the self-exclusion of the mayor and municipal council members”;
- resolution106 of 30 March 2016, No. KS-27 „ On the self-exclusion in municipalities preparing, considering, and adopting decisions of the tax rates (Amendments)”.
Prevention of conflict of interests is not a prohibition to have private interests for persons working in the civil service. All of them have (and may seek) lawful interests and personal expectations. Public servants are no exception. All conflicts of interest civil service cannot be avoided, and therefore they cannot be prohibited. However, before taking a position in the civil service and beyond to this office, a person must keep one’s private issues in a manner that one’s official activities do not create conflict of interests.
Conflicts of interests should be fairly:• properly identified (recognized);• controlled;• effectively solved (eliminated).Purpose of the prevention of conflicts of interests – control of behaviour (actions) of
person working in the civil service in existing of potential conflict of interests.
4.7.1. How to Recognize a Conflict of Interest?Most of conflicts of interest that occur in the civil service are predictable, they can be
anticipated and easily controlled by taking appropriate preventive actions, i.e. in general, to prevent any conflict of interest to occur and be realized.
• Psychological discomfort on certain issues If, performing official duties, you must come to the situation that raises internal
(psychological) discomfort and which the society can evaluate as controversial, be vigilant - there is a good chance that you have the potential or even a real conflict of interest.
• Public opinion Answering the question of what is a conflict of interest, a public opinion will also be
considered as assessment criteria, that private interests of a person serving to it may affect his official actions. It is not necessary to raise a question whether it can happen. In this case, a warning of the risk for a person working in the civil service should be considered as public concerns on eligibility of the official behaviour.
There is a high possibility that you are in the situation of a conflict of interest you should solve the following issues when performing your duties:
104 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.F93F96183943. 105 Internet access: https://www.e-tar.lt/portal/lt/legalAct/e9fe6150defe11e58a92afc65dd68e97. 106 Internet access: http://www.vtek.lt/images/VTEK_rezoliucija_del_nusisalinimo_savivaldybese_sprendziant_mokesciu_tarifu_nustatymo_klausimus.pdf.
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• Your family (relatives) or your own business;• Your shares (shares, stock) of existing companies and corporate;• Your professional activity: work in other companies, institutions and organizations, individual employment (copyright agreements), etc.;• Your membership, relationships and responsibilities of enterprises, institutions and organizations or funds;• Your financial or moral obligation (debt) to other persons, other civil relations;• gifts and services received from other persons (given to them);• Your hostility (dispute or competition) to other persons or groups;• Your close (important for you) people work at the same institution;• Your intentions regarding a new job searches, negotiations with the prospective employer, etc.This is just a sample list of private interests that can lead to conflicts of interest in the
public service. Each case is individual and should therefore be assessed individually, considering the specific circumstances.
Law on APPIPS equates the private interest of person working in the civil service to interests of persons close to him, identified in Article 2(5) of the Law on APPIPS. Thus, a civil servant would be in a conflict of interests if one, performing one’s duties, should solve issues that are important not only to one, but also to any other said issue important to his relative.
Situations that cause a conflict of interest, are very different, in rare cases - identical (repeatable), there are really complicated, more difficult to identify cases that require interpretations of skilled specialists or service (direct) leaders. Therefore, in case of the said conflict of interest, all your doubts openly state to head of the institution or its authorized person, your direct manager, professional ethics specialist or directly to the Chief Official Ethics Commission and ask them to submit prior written guidelines on how you should behave properly.
4.7.2. Management and Elimination of Conflicts of Interest
The management and solving (elimination) of conflicts of interest depends on each individual situation. One of the following actions should be applied (the list is just an example):
• refusal or liquidation of private interest;• realization of refusal from solving the issue indicated in Article 11(2) of the Law on
APPIPS;• restriction of access to relevant information;• resolution to carry out functions which do not create a conflict of interest;• restructure of official duties and responsibilities;• complete (not one time) refusal to perform duties related to private interests;• resignation (exclusion) from a state agency.It is not always possible to eliminate a threat of conflict of interests for a person working in
the civil service by performing a one-time self-exclusion (exclusion) procedure, for example, when such a conflict related to the person’s working in the civil service family, ethnic or religious affiliation. If conflicts of interest arise frequently, especially if they are of a permanent nature (for example, spouses working in one institution), self-exclusion procedure may be generally ineffective – even performed properly it cannot convince the society (or give the impression that self-exclusion was formal, “for the eyes only”) which continues to doubt whether or not self-exclusion will be
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properly implemented, and excluded (self-excluded) person will not have any other options affect the decision favourable to himself, in which he is interested personally.
Lithuanian case law considers that only by a single, accidental conflict of interest can be solved by the law. Conflicts of interest arising from a servant official functions and his personal interest, by acquiring a permanent nature, there is a risk that the servant will not be able to properly perform one’s official duties. The Exclusion and Removal Institute in this case would not be effective, because the servant would have completely excluded oneself from one’s direct daily performance of the functions (see. Lithuanian Supreme Court decision in the civil case No. 3K-85/1998, 17 June 1998) on 17 June, 1998. No. 3K-85/1998).
Most of the said management and elimination actions of the conflicts of interest are managed not by the same person, who suffers a conflict of interest, but his heads (directors or institutions). The participation of these persons in solving situations of interests arisen to their subordinate employees and other institutional ethics (behaviour) dilemmas are extremely important and significant. In many cases, a prevention of conflicts of interests would not be implemented without involvement of the heads and without cooperation with relevant subordinates who need advice.
The heads of the institution are not only advisers for their colleagues, but also for the proper examples of conduct. Therefore, “the heads of public institutions are subject to higher standards of performance and responsibility than ordinary officers. The society has reasonable expectation that heads of institutions have not only higher professional qualifications, but also act in accordance with higher morals and professional ethics principles”. (Lithuanian Supreme Administrative Court Bulletin. Administrative case law. 2004. Vilnius, No. 6, p. 116–131).
4.7.3. Council Duties and Responsibilities in Implementing the Prevention of Conflicts of Interest
Article 22(1)(2) of Law on APPIPS directly obligates heads of state and municipalities institutions to control that the institution under their control would duly perform provisions of Law on APPIPS related to prevention of conflicts of interest and their elimination. The law on APPIPS and the Chief Official Ethics Commission, controls its supervision, have established certain actions for the implementation of the requirements for the said persons:
• solve issues of exclusion of subordinates in terms of office: satisfy expressed self- exclusion, if it is not done – exclude a person himself; or with a reasoned written decision not to accept the self-exclusion and obligate a person to continue to participate in procedures of solving issues causing the conflict of interest, while taking responsibility for the resulting consequences (Article 11(2 and 6) of the law on APPIPS);
• continuously monitor and ensure that official subordinates complete and submit their declarations of private interests in accordance with the established procedures and deadlines, to know and to take interest in the relevant data of declarations, in other words, to make a permanent control of private interests (for more information see Resolution107 No. KS-25 of the Chief Official Ethics Commission “On Control of Compliance with Regulations of the Law on Adjustment of Public and Private Interests in the Civil Service”, 26 March 2009);
• at the requests of official subordinates or regarding data or any other known (disclosed) circumstances indicated in their private interests’ declaration, that may cause a conflict of interest;
107 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.F19613144F52.45
to prepare and provide prior written guidelines on how employees must behave in each case (Article 11(3) and Article 22(2) of the Law on APPIPS).
Head of state and municipal institutions should be prepared to analyse situations when subordinate employees have arising conflicts of interest. In such cases, it is particularly important to assess if the reasonable person, being aware of certain facts, may believe that unsolved conflict of interest of subordinate employees poses a threat to credibility (reputation) of the institution. When deciding, what actions are the best to control the conflicts of interest, the head should consider the interests of the institution and the society, as well as the legitimate interests of employees and other factors, in some cases – to the level of employee’s duties and the type and nature of the conflict of interests.
The heads of institutions, questioning what to do and what decision to take on a conflict of interest (situation) of a subordinate employee should contact the Chief Official Ethics Commission for advice and methodological assistance.
4.8. Improper Charity and Sponsorship
The provision and reception of a charity are regulated by the Law on Charity and Sponsorship of the Republic of Lithuania108 (hereinafter – Law on CS). A Sponsorship is a voluntary and gratuitous provision of sponsorship items by the providers of sponsorship to the recipients of sponsorship as specified in this Law, which is conducted for the purposes and in a manner stipulated in this Law. Purpose of a sponsorship is to provide sponsorship items to the recipients of sponsorship, i.e. for the public benefit of non-profit entities identifies in their articles of association or regulations or in the canons, statutes, and other rules. In resolution, the support does not become illegal as a corruption-related offense, it is necessary to discuss the main legal sponsorship moments. In accordance with this Law, the sponsorship shall be recognised as such if it is provided by enterprises in which the state or municipality has ownership of the shares carrying over 50 percent of voting rights at a general meeting of shareholders:
- if the said enterprises do not have any tax arrears to the state budget and/or municipal budgets or funds administered by the State Tax Inspectorate;
- if the said enterprises do not have any arrears to the State Social Insurance Fund, liabilities under loan contracts and other instruments of debt signed by the Ministry of Finance or under contracts covered by a state guarantee.
It should be noted that, based on the Law on CS the state, municipal enterprises, institutions, and budgetary institutions cannot provide a sponsorship.
4.8.1. Which Companies Can Be Provided with Sponsorship?
The indicated legal persons shall become sponsorship recipients and shall obtain the right to receive sponsorship only after having been granted the status of a recipient of sponsorship in accordance with the procedure laid down in this Law.
It is important to note that if the enterprise’s sponsorship is given to recipients of sponsorship with a status of recipient of sponsorship and recipients of sponsorship registered in the Republic of Lithuania, i.e.:
108 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.C0FF21832A85/VaYEKaMJlQ.46
- charity and sponsorship funds,- budget-financed institutions, - associations, - public agencies, - religious communities, associations, and religious centres, - divisions (chapters) of international public organisations, - other legal persons whose activities are regulated by special laws and which participate in
not-for-profit activity, while the profit received may not be allocated to their participants.The recipients of sponsorship may be Lithuanian communities abroad, other Lithuanian
bodies or organisations (a list of Lithuanian communities abroad, other Lithuanian institutions or organizations that may be recipients of sponsorship in accordance with the Law on Charity and Sponsorship of the Republic of Lithuania approved by the Resolution109 No. V-265 on 30 December 2011 of the Minister of Foreign Affairs of the Republic of Lithuania), and legal person or other organization whose purpose is not profit, and the profit cannot be paid to the participants established in the European Economic Area states (governed by documents proving that a sponsorship of a provider of sponsorship may be provided by legal persons or other organizations established in the European Economic Area states indicated in documents provided to the public benefit purposes, indicated in Article 3(3) of the Law on Charity and Sponsorship of the Republic of Lithuania, in the procedure of submission to the State Tax Inspectorate approved by the resolution No. VA-28110 on 17 April 2015 of the head of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania.
It is important to note that the fact of sponsorship and the reception must be documented in the relevant agreement or other free-form documents supporting the fact of transfer of sponsorship, which have mandatory requisites indicated by the Accounting Law (agreement is not necessary if the sponsorship is provided in accordance with the procedure established by the Law on the Notaries and without conclusion of additional conditions for sponsorship provider).
4.8.2. For What Purposes and What Can Be Given as Sponsorship?
Enterprises may provide sponsorship for the said recipients of sponsorship only for the purposes of public benefit indicated in their statutes or regulation, canons, statutes and other norms of religious communities, associations, and centres.
Within the meaning of this Law, the following purposes shall be presumed to be for public benefit: activities for the purpose of international cooperation, protection of human rights, integration of minorities, promotion of cultural, religious and ethical values, educational, scientific and vocational development, non-formal and civic education, sports, social security and labour, health care, national security and defence, law and resolution, crime prevention, adjustment of living environment and development of housing, protection of copyright and related rights, environmental protection as well as any activities in other fields recognised as selfless and beneficial to society. (Article 3(3) of the Law on CS). Therefore, recipients of sponsorship a
109 Internet access: https://e-tar.lt/acc/legalAct.html?documentId=d8d141d02cdb11e4a83cb4f588d2ac1a&lang=lt.110 Internet access: https://www.e-tar.lt/acc/legalAct.html?documentId=704b35f0e50211e4a4809231b4b55019&lang=lt.
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received sponsorship may use for employees' salaries, inventory, purchase services, to organize events, if such costs are related to the purpose of implementation of objectives for public benefit.
Enterprises provides sponsorship items to recipients of sponsorship for the purpose of public benefit, and sponsorship for budgetary institutions shall be provided for the purpose to implement tasks and functions indicated in their regulations.
Charity and sponsorship items shall comprise:- monetary funds; - any other assets, including manufactured or purchased goods;- services provided. It is important to note that sponsorship items shall not include funds from state and
municipal budgets of the Republic of Lithuania, the State Social Insurance Fund, the Health Insurance Fund, the Privatisation Fund and other state monetary funds, monetary resources of the Bank of Lithuania, other state and municipal monetary resources, tobacco and tobacco products, ethyl alcohol and alcoholic beverages as well as items of limited circulation. Items of limited circulation are items with certain features, which circulation is limited for the reasons such as public safety, health safety or for other reasons such as weapons. The items of limited circulation do not include items that are in a free trade such as food or pharmaceutical products, although their realization period may be limited.
4.8.3. How the Amount of Sponsorship is Determined?
The amount of provided sponsorship is determined as follows:- providing sponsorship by a long-term tangible asset, the amount of sponsorship is equal
to its residual value (acquisition price minus the estimated depreciation;- providing sponsorship by other asset, the amount of sponsorship is equal to the
acquisition price;- providing sponsorship by services, the amount is equal to the cost of these services, i.e.
by providing sponsorship services, service prices cannot be attributed to the profit margin. This means, that the service cannot be provided at contractual or sponsorship provider's self-imposed prices, such as services of a lawyer, consultant, self-imposed prices;
- providing sponsorship by transferring the right of use of tangible assets, the amount sponsorship is equal to the estimated amount of depreciation during the period for which the recipient of sponsorship used it.
Benefits for sponsorship are attributed allowable deductions (Lithuania Law on Income Tax (hereinafter – the Law on IT) Article 17(2).
The company, which provided the sponsorship, is allowed to deduct income twice in accordance with the procedures established by the Law on IT for support payments, including the transferred asset, the value of the services provided, but not higher than 40 percent of enterprise’s income calculated from income minus tax allowance (Art. 12 of the Law on IT), deductions (Art. 17(1) of the Law on IT.) and limited amounts allowable deductions (Art. 17(2) of the Law on IT), except for the sponsorship and the previous tax periods losses (Art. 28(2) of the Law on IT).
It is important to note that the amount of expenditures, not deprived from income for sponsorship, is not transferred to the next year.
Example.
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The joint stock company during the tax period, per beneficiary granted EUR 20 000 in cash for one sponsorship recipient. When calculating the taxable profit, the income can be deducted twice 250 MSL not exceeding 9 500 Eur (38 Eur x 250) of granted amount of sponsorship, but not more than 40 percent. The taxpayer's income calculated from income minus tax-exempt income, deductions, and deductions of limited amounts, except for the support and the previous tax periods tax losses. 250 MSL more than 10 500 EUR (20,000 to 9,500) in cash, the amount of sponsorship is attributed to disallowed deductions.
Another example.JSC „X“, according to results of the reference year, gained 35 000 Eur income, of which
after the deduction of tax-exempt income, allowable deductions and deductions of limited amounts, with the exception of sponsorship, and previous year’s tax losses remain 25 000 Eur. During the reference year, the company transferred in non-cash 15 000 Eur for sponsorship. "X" from its income can deduct only 10 000 (25 000 x 0.4) expenditure of sponsorship, although dual benefit amount for sponsorship - 30 000 Eur (15 000 × 2). The revenues are not deprived from expenditure for sponsorship (5 000) does not move to the next year.
It should be noted the fact that the companies’ income, when calculating taxable profits, cannot be deducted:
- sponsorship is granted not based on the provisions of the Law on CS, for example, when the sponsorship is given to the beneficiary who does not have the status of legal person;
- a part of sponsorship granted in cash exceeds 250 MSL (basic social benefits);- the funds for sponsorship of more than 40 percent of the taxpayer's income calculated
from income minus tax-exempt income, deductions, and deductions of limited amounts.It is important to note that the amount allocated for sponsorship cannot increase in
companies' losses.Example.JSC “Y” operating income minus tax-exempt income, deductions, and deductions of
limited amounts, with the exception of support for the previous tax periods and tax losses, estimated losses - 16 000 Eur. Securities and derivative financial instruments as well as the result of losses - 24 000 Eur. Granted amount for sponsorship cannot be deducted from the JSC “Y” incomes, i.e. it cannot be attributed to the amount of tax loss to be transferred to the further fiscal losses.
4.8.4. Sponsorship Which May Be Used for Other Purposes
When recipients of sponsorship i.e. non-profit organizations received, sponsorship use it for purposes other than defined in the Law on CS, these amounts must be attributed to the income tax base. Income tax base also includes a part of sponsorship received in cash from a single provider during the tax period, which excesses 250 MSL (basic social benefits) (Art. 4(6) of the Law on IT).
Cases when sponsorship is used not for the purpose indicated in Law on CS - when received, sponsorship is used to finance political parties or political campaigns and
to cover the liabilities arising in respect of participants in political campaigns during the political campaigns or related to the political campaigns (Article 10(2)(1) of the Law on CS):
For example, association, which statutes civic education activities, received sponsorship of 5 000 Eur, and used it to support a X political party's election campaign (cover the election campaign-related costs). Since, the received sponsorship was used to organize a political
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campaign-related event, all the used sponsorship was attributed not according the purpose for used sponsorship of the Law on CS, and charged without any deduction of 15 percent of income tax rate;
- when received, sponsorship is transferred as a contribution to a legal person whose participant is the recipient of sponsorship;
- when received, sponsorship is used to provide charity not in accordance with the Law on CS;
- when received, sponsorship is used regardless of restriction of activities of the recipient of sponsorship governed by the Law;
- when sponsorship is used for private purposes, not for purposes of public interest.It is important to point the fact that recipients of sponsorship, i.e. non-profit organizations,
which received sponsorship which was used for other purposes than indicated in the Law of CS, amount, as well as a part of sponsorship received from single provider during the tax period, which exceeds the amount of 250 MSL (basic social benefits), must assign it to income tax base (income) tax it without any deduction of income tax rate of 15 per cent.
4.8.5. Cases of Obvious Abuse of the Privilege of Sponsorship
Cases of obvious abuse of the privilege of sponsorship are as follows:1) provided sponsorship is used for other purpose (for example, to purchase a luxury car,
to pay loans, expenses not related to the purpose of public benefit);2) sponsorship is provided to a public institution, which status of recipient of sponsorship
was cancelled;3) loan giver for public institution pays back the load to the bank, it is unreasonable
formalized as sponsorship and illegally uses income tax relief; 4) a head of two sponsorship providers, after received a sponsorship in cash, issues a
receipt for acceptance of money to recipients of sponsorship, but did not registered money, and in accounting formalize its debt to his public institutions. There is no documentary evidence to support the use of sponsorship.
Attention should be drawn to the apparent cases of abuse of the said income tax relief, when a sponsorship attributed to the non-profit organization at the end of the year is not uses, there is no support for the target destination, and received funds accumulated for long periods. Such non-use of received sponsorship may be considered as abuse in resolution to avoid income tax.
If a recipient of sponsorship received from a taxpayer established a recipient of sponsorship or otherwise related to the recipient of sponsorship, issue on the use of the sponsorship becomes important in resolution to make sure whether the sponsorship was provided and used for public benefits defined in the Law on CS. If the sponsorship is used for other purposes, the question is whether the recipient of sponsorship is not fictitious and whether a sponsorship is provided for the sole purpose, i.e. seek tax relief, i.e. reduce the profit tax.
There is a suspicion of companies, that establish recipients of sponsorship and provide sponsorship at the end the tax year.
Examples of abuse:1) PI (hereinafter – company), by violating provisions of Article 10 of the Law on CS,
since 01-01-2009 to 31-12-2011 received funds of sponsorships used for other purpose, i.e. the company the company from the checking account “X” transferred funds for not provided car rental services (in total of 640 285 Lt of sponsorship funds). It was also found that the company, during
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the period from 01-01-2009 to 01-06-201 from funds for sponsorship accounted the purchase of fuel, but it was found that fuel purchase transactions actually took place under other conditions and circumstances than indicated in the imprest accountancy, therefore it is considered that imprest accountancies were formalized on what they are considered as without legal power, and fuel purchase receipts (checks) do not confirm the fact that the fuel was purchased by Director for taxpayer’s money and used for activities related to the payer's activities and needs.
It was found that imprest accountancies and room and board costs pay-out sheets completed on behalf of the Director of filled advances in accounting and room and board costs pay-out sheets do not reflect reality and therein indicated operations of room and board payment for team members took place in other conditions and circumstances than those referred to in accountancies and sheets.
For the said violations of the Law of CS, during an inspection, 119.846 Lt (34 709.80 Eur) of income tax was additionally estimated.
2) Association “X”, by violating Article 10 of the Law on CS, received sponsorship used for other purpose indicated in the Law on CS – bought different items, room and board allowances paid using sponsorship funds. After association breached provisions of Art. 3, Art. 10 of the Law on CS, during the inspection in accordance with provisions of Article 4(6) of the Law on IT, from identified use of sponsorship for other purposes (a total of 140 861 Eur) was calculated (23 874 Eur) of income tax.
3) Football club “X” from sponsors received sponsorship use for other purposes for sporting activities. It was found that associated person used funds issued by the club as a loan, without paying interest for such use. In addition, the club violated Article 13(1)(6) of the Law on Accounting of the Republic of Lithuania, and during the period of 2011-2012, in the accounting included economic operations under non-legislative documents – representation agreements, the wage agreements, invoices, cash receipts of payment. For the above violations, it was estimated additional 376 819.11 Eur of income tax.
It is recommended that the head of the company would ensure that the company would have provisions for provision of sponsorship, which would establish what sponsorship is appropriate for, the size of it, etc. A size for recommended amount for a company to provide sponsorship may approximately 10 percent of net (distributable) profit during the reporting period.
4.8.6. What Reports Must Be Submitted to the Tax Institutions on the Provided and Received Sponsorship?
Companies must provide information on provided and received sponsorship and its use to the tax authority as an institution, which controls the provision, reception and use of sponsorship, as it regards the application of tax concessions (regulated by the Resolution111 No. 289 on 23 September 2002 of the Minister of Finance of the Republic of Lithuania).
A sponsorship provided by companies must be declared by completing and providing to the annual report FR0477 form (the form approved by the Resolution112 No. V-103 of the head of the STI under the MF on 10 April 2003, “On approval of the annual report form FR0477 for provision of the sponsorship reception of sponsorship and the use of the annual report form FR0478 and the rules for completion”).
111 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.73F53F6FDBBB.112 Internet access: https://www.e-tar.lt/portal/lt/legalAct/a37812e0690011e58e1ab2c84776483b.
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The beneficiaries, i.e. non-profit units received sponsorship and its use must be declared by completing and providing the annual report form FR0478 (form approved by the Resolution113 No. V-103 of the head of the STI under the MF on 10 April 2003 ”On approval of the annual report form FR0477 for provision of the sponsorship reception of sponsorship and the use of the annual report form FR0478 and the rules for completion).
The recipients of sponsorship are also required to provide a free-form report on their activities related to the public benefit objectives (Resolution114 No. 289 of 23 September 2002 of the Finance Minister of the Republic of Lithuania).
Both providers, i.e. companies, and recipients of the sponsorship, from the beginning of the calendar year, received sponsorship from one provider or provided sponsorship to one recipient of sponsorship (charity) of more than 15 000 Eur, must provide to tax administrator a monthly report on the sponsorship provided to one person and (or) charity and received sponsorship from one provider of more than 15 000 Eur, and a form PLN203 (form approved by the Resolution115 No. VA-49 of the head of the STI under the MF on30 May 2006).
4.9. Improper Gifts, Hospitality
Sometimes it seems that by refusing to accept completely innocent gist, a sign of symbolic value of attention, we risk to offend the person who wanted to give it, whose intentions, perhaps, were the best. For memorial, that gift from a person with best intentions may create some, and sometimes, serious problems to a person working in the public service who accepted a grift. When this happens and if it happens, it depends on each situation, and most of all – from the behaviour of person working in the civil service. Therefore, it is worth remembering the saying came from ancient Greece about “Danae gifts” as deceit, disaster, and inevitable destruction of what they are intended, synonym.
Gifts, meals, and entertainment which the Public-sector offers or accepts must be eligible. The Public-sector cannot accept gifts, meals, and entertainment from or offer gifts to representatives of groups of Public or Private-sector, that do not meet reasonable public servant goals. While we want to promote and maintain good inter-institutional relations with strategic partners in Lithuania and abroad, gifts should never be used to do influence someone (we avoid situations where gifts can be seen as undue influence), they cannot affect the ability to make unbiased and objective decisions. It is important to emphasize that money should never be given as gifts or as a present (the amount is not important) – it is a criminal offense.
In accordance with provisions of Article 6.465 of the Civil Code116 of the Republic of Lithuania, under a contract of gift, one party (donor) transfers by gratuitous title property in ownership or a property right (claim) to another party (donee) or relieves the donee of a property duty to himself or to a third person. The term "gift" is defined broadly and includes anything that can be valued in money, i.e. „Gratuity“, item, a service, a discount, hospitality, lending. This term also includes the gift of service, training, transport, accommodation, food costs, etc. Giving – is a transaction whose main feature is without consideration. If the assets or property is transferred
113 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.020835014A97/nFwLiPbCqW.114 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.852EBE95CF4F/keSgaXxWDx.115 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.A9649B9E9E82/kdeQAwuEEa.116 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.8A39C83848CB/HDTolUkZgu.
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gratuitously of law assumes that the gifted has to (not) do something or (not) to perform, or it is performed for already made certain actions, this is not a gift, it is illegal activity – a bribe.
The Law on the Adjustment of Public and Private Interests of the Republic of Lithuania (hereinafter – the Law) prohibits persons in central or local public service to accept gifts or services directly or indirectly, if it may cause the conflict of interests indicated in this Law (Article 14(1)).
A person working in the Public-sector who personally or through intermediaries accepted gift of allowable size from the natural or legal person, and this may lead to public and private interests conflict, this person cannot for one year may not participate in the preparation, consideration, and adoption of decisions or to perform other official duties (Article 14(4)).
The Chief Official Ethics Commission, which controls provisions of the Law, on 25 November 2015 adopted a special Resolution. KS-73117 “On Gifts and Gratuitous Services”.
4.9.1. When It Is Forbidden to Accept (Give) Gifts?
Persons employed in the Public-sector in general should not accept (give) gifts, which are given not by tradition and protocol, or at least in accordance with the traditions and protocol, but in situations where circumstances of such gift – the place, time, form, etc. – the society could interpret ambiguously and controversially (i.e. would cause a semblance of conflict of interest in activity of such persons). “Gifts” are directly or indirectly accepted from individuals (provided to persons), whose interests are related to the issue solved, decide whether to deal with person employed in public service, as soon as the reward fact will become publicly known circumstance, certainly, and quite rightly, the public will understand it as a mere way affect the latter's official decision in such a way that they would be in favour of the donor (or persons close). In this case, the gifted person will inevitably act in the conflict of interest, therefore, its decisions cannot be objective and impartial, as required by the public interest of society.
Restriction to accept (give) gifts shall not be applicable to gifts or services accepted pursuant to the international protocol or traditions that usually relate to the official duties of the person in central or local public service, as well as well as gifts for representation (state, institution and other symbols, calendars, books, and other informative prints), which value does not exceed 30 euros. Gifts with a value exceeding this amount shall be considered as a state or municipal ownership Article 14(2 and 3).
We recommend: never accept gifts that were provided due to your functions performed in the Public-
sector (except gifts for representation: state, institution and other symbols, calendars, books, and other informative prints, which are registered in accordance with procedures of the institution);
never accept and do not give donations of cash, except for donations for your close persons only for personal use. Otherwise, you will be extremely difficult to convince the society that this is not corruption;
if you are offered a gift or intend to give it others, but you do not know how to behave in resolution not to compromise institution where you work, and you will not be accused of corruption, openly express your doubts to the head of the institution or its designee, his immediate supervisor, compliance officer, COEC and ask them to make recommendations on how to properly handle the current situation;
117 Internet access: http://www.vtek.lt/images/Duomenys/KS-73_D%C4%97l_dovan%C5%B3_ir_neatlygintin%C5%B3_paslaug%C5%B3.pdf.
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in the institution, establish a public register of gifts, which contains indication of who, what, when and to whom gave a gift.
Before deciding whether to accept (give) a gift, you need to think about: circumstances of gifts: reason, time, place, manner, form of gifts; value of the gift, especially if you can see that it is higher than that in normal
conditions would allow you to expect the donor (or the person to whom you intend to donate) linking relationship;
donation frequency and periodicity (even a small, but often are donated gifts should raise your concern);
in your opinion, what are intentions of the gift giver in respect you (he/she makes out of courtesy or respect for you, and maybe having a friendly intention by themselves affect your future decisions, directly or indirectly, to return the favour incoming or previous decisions) ;);
whether you behave ambiguously with the donor, by allowing him to misjudge the gifts (kickbacks) you are waiting and hope from him;
whether accepted (deliver) a gift you can feel free from any potential liability to the donor (awarded);
perhaps an absolute part of your official service function is linked to the future of the donor (awarded), therefore, the adoption of a gift whether submit it, would have to withdraw from the relevant service issues;
whether you would be comfortable and without any psychological discomfort (concerns) to the fact that the receipt of gifts (giving) will become publicly (colleagues, interested parties, the media, the society) known;
Are you ready to transparently declare the gift and the source to you authority and all interested parties, their colleagues, the media, and society?
Example 1. The entrepreneur is constantly late, albeit slightly, to provide documents about his operations about his company to the state (municipal) institution. In addition, the company's accounting documents are completed not in compliance with certain formal requirements. Publicly demonstrating that he “regrets” and as “apologizing” for his behaviour and the expectation that he receiving state (municipal) authority being made negligent act not assessed as infringement, the situation will look “human”, “red tape”, the reception together with the documents entrepreneur leaves a box of chocolates and a bouquet of flowers. In these situations, the personal attention shown “signs – and let the whole symbolic or minor importance” freebies “– making employees inevitably raise psychological dilemma – how to deal with this nice person” who does not comply with the formal, bureaucratic“ requirements? In this case, should not accept any gifts.
Example 2. Person working in the civil service is appointed as state (or municipality) of the Supervisory Board member. Each year the company to its employees organizes tourist sightseeing trips to foreign countries, which are paid from the company’s funds. The proposal of the company funds to go to a tourist trip and receive the designated Supervisory Board member.
Such gifts must be refused.For more information see Resolution No. KS-95 of the Commission on 20 November
2008, Resolution No. KS-96 of the Commission on 20 November 2008, www.vtek.lt. Example 3. Association uniting businessmen in one district, annually organizes the
cognitive-entertainment trips to selected foreign country to its members. “On representatively”, the district mayor is invite to take a business trip. Mayor (not member of association) rejected all offers, having a reason to believe that such conduct may not be compatible with official ethics
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requirements. Mayor evaluated the fact that the municipality is continuously solving issues important to this association and its members, and using the association's proposal, in the public eyes it may potentially affect his impartiality as the head of the municipality, and most municipal decisions would be compromised. Not happy with the mayor’s behaviour, the association has taken various, even political, effects. Finally, the district mayor under pressure by the association agreed – he and his wife together with businessmen went to London. Travel expenses – plane tickets and hotel – were paid by the association.
The Commission, having considered these circumstances of the mayor and his wife’s cognitive-entertainment travel to London, the reimbursement fact identified as the gift given to him for his post in the municipality, inspiring a conflict of interest of hope that it is the future of all the association of important issues potentially decide the most favourable way.
Such gifts must be refused.More information : Resolution No. 28 of the Commission, 26 March 2009 , www.vtek.lt Example 4. A person employed in the civil service, executing monitoring activities of
legal persons goes to the international conference. Travel expenses (or part thereof) offers to pay one of the servant-controlled (e.g.., Audited) companies.
Such gifts must be refused. Example 5. State and municipal authorities held a public procurement procedure. One of
the tendering company at the same time for their employees and business partners to organize a New Year's Eve night, a program – party, concert, games (quizzes, lotteries) with the opportunity to win prizes, etc. Procurement commissioner also receives an invitation.
Such gifts must be refused.
4.9.2. What to Do with a Gift That Cannot Be Accepted?
Usually each case is individual, therefore it must be resolved in the light of the circumstances, and most importantly – the possible conflict of interest in the risk of developing.
A person working in a civil service had conflict of interest which could lead to the donation issue, depending on the circumstances, it is recommended:
not to accept a gift at all, and politely explain motives to the donor (law forbids it, behaviour (ethics) codes, rules, rules of procedure, the manager, etc.);
immediately return the gift back (by mail, by courier directly) to the person who gave it;
If it is not possible to return the gift, to pay (transfer to the account) the market price to the donor in money;
to place (put) a gift in institution and make it impersonal, that it could benefit from it (use), not only all office workers, but also to other persons;
if it is not possible to do as above, give a gift to charities according to its form and nature, and if it is impossible to act objectively – discard it (destroy);
all cases of a fact of donation immediately notify your immediate superior, ethicists, if such institution is, the head of institution (and request that the said persons would make recommendations on the further official conduct);
register fact of donation in the institution’s gift registry, by informing a person who donated a gift on this.
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A conflict of interest can arise only in the activities of person working in the Public service, and he alone can refuse or accept (provide) a gift.
However, servant’s relatives – spouses, children, parents, brothers, sisters etc. also receive gifts (provide). The latter fact became known (it is considered that a fact of giving gifts to person the employed in public service is certainly known, if a gift is dedicated to relative and he took the advantage) can also cause a conflict of interest in the performance of duties. Knowing that his relative took it or gave it to others, and that this fact may be associated with actual or potential conflict of interest in the service of the situation, the public service employed person must withdraw from procedures relevant to issues.
Received gifts must be declared in the Declaration of private interests (form published in the web page of the Chief Official Ethics Commission www.vtek.lt):
Over the last 12 calendar months received gifts (except gifts to close relatives), if the gift value of more than 150 Eur (Article 6(1) of the Law, p.1.);
from close persons received gifts if their value is higher than 3 000 Eur (declared as a unilateral transaction, Art. 6(1) of the Law, 6 p.).
All of said gifts are declared in the private interests’ declaration form ID001 Annex ID001S (Transactions). Gifts value is according to the market price.
A donation transactions do not need to be declared if the gift and services provided free of charge or paid costs received by international protocol or traditions that are normally associated with declared person or his spouse, cohabitant, partner responsibilities.
A declaration of donations will be easier after getting to know the Rules of Declaration of Filling, Adjustment and Presentation of the Private Interests approved by the Resolution 118 No. KS-84 of 5 July 2002 adopted by the Chief Official Ethics Commission.
4.10. Other Corruption-Related Offenses
In the previous 4 chapters and sub-sections we have looked at, in our opinion, the main corruption-related offenses, but they can occur in practice and there are more of them. It can be a fraud119, waste of property and adoption of property120, illegal enrichment121, falsification of documents122, presentation of false data on income, profit, or ascendant other financial offenses123, criminal money or property legalization124 etc. All those acts of nature are not classified as criminal offenses of public service and public interest, but if they are made in public administration whether public services for the benefit of themselves or others, they are corruption-related offenses. More 118 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.016250267084/ckzSeSRPFo.119 More. http://www.lat.lt/download/1107/apzvalga_2012_m_sukciavimo_bb.docx.120 More. http://www.lat.lt/download/1132/turto%20pasisavinimo%20ir%20issvaistymo%20apzvalga.docx. 121 More. http://eteismai.lt/byla/57594094255429/2K-P-93/2014, http://eteismai.lt/byla/157691863324783/2K-75/2014, http://eteismai.lt/byla/133495095433993/2K-48/2014.It should be noted that due to unjust enrichment composition of the Lithuanian Supreme Court and other courts of the Republic of Lithuania applied to the Constitutional Court regarding the interpretation of whether or not the crime of compliance with the constitutional rule of law. More http://www.lrkt.lt/~prasymai/21_2015.htm.122 More, e.g., http://eteismai.lt/byla/257269791528482/2K-7-251/2013, http://eteismai.lt/byla/266528948182182/2K-244/2009, http://eteismai.lt/byla/239080290285253/2K-132/2008.123 More. http://www2.lat.lt/lat_web_test/4_tpbiuleteniai/senos/nutartis.aspx?id=31291, http://eteismai.lt/byla/55810457894282/2K-430/2009.124 More, e.g., http://eteismai.lt/byla/39967240930653/2K-467/2012.
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information about these and other corruption-related offenses, no case can be found in the comments of the CC, scientific works, etc.
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II. DEVELOPMENT AND IMPLEMENTATION OF AN ANTI-CORRUPTION ENVIRONMENT
Transparent and fair, values based public institution’s cultureis extremely important in creating high ethical standards based on Public-sector activities,
among which there are no opportunities for corruption.
The first part (theoretical) of the Guide of Anti-Corruption Environment discusses general information about corruption, corruption prevention actions in the legal framework, to describe the main corruption-related offenses, as well as other corruption-related offenses. The Guide of Anti-Corruption Environment will describe the specific steps and specific corruption prevention actions are properly carried out, in our opinion, can be successful in creating and maintaining the environment in specific Anti-Corruption institutions.
What is important is that there are three main problems that give rise to corruption. This is unscrupulous people, regulatory gaps, and inappropriate processes, leading to both the analysis of the current situation and providing Anti-Corruption actions. It is advisable to group them according to which problem of corruption they will be exposed.
Recommended model of the development and implementation of Anti-Corruption environment consists of the corruption prevention actions:
1. Determination of civil servants and employees’ tolerance for corruption. It is thought that the staff survey on corruption, its tolerance or intolerance is the first step to creating successful Anti-Corruption environment. The kind and extent of the actions of corruption prevention in the institution will depend on the processed results of the survey.
2. Determination of probability of corruption manifestation. This action is aimed to determine the potential activities of the institution which are prone to corruption and identify the potential related risk factor.
3. Anti-Corruption assessment of the draft-law. In resolution to eliminate the risk of corruption manifestations of primary legislative phase, all state bodies and institutions must be carried out by their own Anti-Corruption assessment of project design.
4. Reception of information about the person. The head, in resolution to ensure that the post would be to accept those responsibilities go only impeccable reputation, eligible persons must effectively organize an appeal to the Special Investigation Service for more information about the person’s presentation.
5. Anti-Corruption education of civil servants and employees. Depending on the results of the survey, the frequency of Anti-Corruption education for staff should be considered. It is proposed to prepare Anti-Corruption program and according to certain frequency to train civil servants and employees.
6. Anti-Corruption Commission and those responsible for corruption prevention activities. In resolution to achieve good results in the field of corruption prevention, the activity of municipal Anti-Corruption commissions and the persons responsible for the prevention of corruption in other institutions should be organized effectively .
7. Role of the code of conduct. In resolution that the authority should have a single aggregated document that describes not only the ethical principles, but also the wider considerations, as public servants and employees working under contract to do one or another situation, it is recommended to prepare the ethical code of conduct.
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8. Declaration of private interests. For the Public-sector to effectively eliminate private and public conflicts of interest, institutional managers should also monitor the process of private interests’ declaration of civil servants.
9. Asset and income declaration. As a declaration of private interests it is considered that it is equally important in the Public-sector institutions to supervise the process of assets and income declaration of persons who are required to do that.
10. Ensuring protection of the speakers. The ability to safely and easily report possible cases of corruption is a particularly important part of the fight against corruption. People who report others’ corrupt behaviour, should not be afraid of the administrative or other harassment and retaliation against them. On the contrary, such persons should expect legal protection and defence.
11. Investigation of violations. So that the institution does not tolerate corruption, it is necessary not only to analyse the processes, identify risks, and carry out Anti-Corruption education, but precisely investigate the violations committed to avoid the formation of tolerance "threshold" for irregularities committed. After the investigation of offense, it is suggested to arrange the conclusion the institution higher in subordination.
12. Programs and plans of corruption prevention, coordination, and implementation. It is assumed that in resolution to ensure the long-term, effective, and targeted corruption prevention and control system of the Public-sector entity, it is recommended to prepare the program and a plan of corruption prevention in the institution.It should be noted that one universal model of how to create an Anti-Corruption (corruption unfavourable) environment for Public office does not exist. Different size and nature of the activities of Public-sector institutions may face different risks of corruption, and single action for corruption prevention may be unequally effective and (whether) topical (e.g., the program of corruption prevention for the public institution set up by municipality may not be necessary, since the essential problems of public institution could have been discussed in the general program of corruption prevention of the municipality, thus the anti-corruption assessment of draft-law will not be relevant to the institution which does not prepare regulatory draft laws.)
In the following chapters, we discuss the above-mentioned aspects of corruption prevention.
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5. DETERMINATION OF CIVIL SERVANTS’ (EMPLOYEES) TOLERANCE FOR CORRUPTION
In Lithuania both the Public and Private-sectors should work towards zero tolerance 125for corruption. The first step towards effective zero tolerance for corruption should be the analysis of the situation, or, in other words, the attitude, which is zero tolerance on corruption index of the same institution.
It is important to determine what the overall approach to corruption is in the institution - how widespread this phenomenon is and what the ratio of workers with this kind of manifestations is. Each institution can decide which issues are most relevant to it, what information it expects to use and for what purposes. However, it is always important to evaluate at least two aspects:
1. Prevalence of corruption in the institution;2. Tolerance for corruption, bribery.These aspects reflect the issues that can be included in a much broader profile, or you can
ask only a few specific questions. The preparation of the survey. It is important the respondents to understand what is
expected of them, so you need to explain the concepts of corruption and bribery.We are glad that Lithuania has examples where the public authority sets its own staff level
of tolerance for corruption already. For example, the State Tax Inspectorate under the Ministry of Finance prepared the questionnaire - questions are provided in Annex 2 of the Guide of Anti-Corruption Environment (16.2. Survey Intended to Identify Tolerance of Corruption Prepared by the StateTax Inspectorate Under the Ministry of Finances).
125 More on zero tolerance: http://www.stt.lt/documents/soc_tyrimai/Korupcijos_tolerancija.pdf.60
6. RECOMMENDATIONS FOR PUBLIC-SECTOR EMPLOYEES AND PUBLIC ANTI-CORRUPTION EDUCATION
Article 10 of the Law on the Prevention of Corruption of the Republic of Lithuania provides that:
- Anti-Corruption education is an integral part of public education aimed to instil dignity and civic motivation, foster the person’s awareness of one’s social rights and duties, and the concept of the Lithuanian state, as well as to ensure the implementation of the aims of corruption prevention;
- The state and municipal institutions shall inform the society through the media or other means about their activities undertaken in the fight against corruption.126
In this section, we will provide indicative guidelines for the performance of legal provisions.
Anti-Corruption education is an activity to reduce corruption and to develop individual and collective responsibility, citizenship, the awareness of personal rights and duties of the society. The United Nations Convention against Corruption identifies such activity as one of the Anti-Corruption actions. Anti-Corruption education provides the skills and knowledge on how to fight corruption and how to deal with it in such situation. Lithuanian Anti-Corruption activities are performed by the Special Investigation Service (SIS), the Chief Official Ethics Commission (COEC), educational institutions and other public authorities, non-governmental institutions, and organizations. This is provided in Article 10 of the Law on the Prevention of Corruption. SSA implementation of the Law on the Prevention of Corruption and the National Anti-Corruption programs, Anti-Corruption education has been carried out since 2002.
Public education on Anti-Corruption needs to be carried out in accordance with preparations specified in the program, the staff level of tolerance for corruption, corruption cases, the risks of corruption and its factors.
Good Anti-Corruption practice begins with the conformation of ethics and codes of conduct and continues with teaching employees how to understand and apply it.
6.1. Preparation of Anti-Corruption Education Programs and Their Contents
Some managers in Public-sector can claim that employees with common sense understand what is acceptable and legitimate, and Anti-Corruption education program is necessary. This understanding is wrong for several reasons:
Different people's understanding and appreciation of what is acceptable and what is not, is very different. In addition, the conjunction of circumstances may affect a person’s decision: offered “gift” may replace the previously held opinion.
There will always be a risk that a person can go too far and become involved in corrupt activities. What actions will you take as a disciplinary unless the rules which have been breached?
So, what are these Anti-Corruption (including education) programs?- Institutions should develop and implement Anti-Corruption programs as their ethical
values and responsibility before the public expression. Anti-Corruption program should focus on
126 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.61
effective anti-bribery risk that the degree may vary in different areas, but none authority or institution can avoid this risk.
- Effective Anti-Corruption program helps not only to mitigate the risks but also strengthens the reputation, respect for employees, reliability, obliges behave fairly and responsibly.
- Anti-Corruption program is a starting point for decision-making and reduces the risk of corrupt decisions. If the program does not exist, it will not always be easy to draw the line and say that something is unacceptable.
- Consistently installed, high-quality Anti-Corruption program leads to a strong ethical culture and communicate behavioural expectations in key risk areas. It also protects against the negative consequences of corrupt employees’ actions.
Thus, the Anti-Corruption program should counteract the opportunities for corruption, which can be made:
• deliberately, for personal or other persons benefit;• on the false assumption that this is normal behaviour and not a criminal offense;• unintentionally, due to the lack of awareness and understanding.In addition, a good Anti-Corruption program sets out the rules of conduct, guidelines, and
training, increases the awareness of all employees of corruption and damage to the understanding, helps managers and employees to timely detect possible corrupt practices and prevention.
One of the Anti-Corruption program parts can be common concise information about corruption in the presentation of civil servants and employees, advice on what to do when faced with corruption-related practices, and so on. You can take advantage of the brochure created by other institutions, for example, Special Investigation Service (see Annex 9 of the Guide of an Anti-Corruption Environment – 16.9. ABC of Corruption Prevention), National Paying Agency under the Ministry of Agriculture (hereinafter – NPA) (see Annexes 10 and 11 of the Guide of an Anti-Corruption Environment – 16.10. NPA: A Transparent Support Administration - Without Gifts or Bribes , 16.11. NPA Transparency Guide). If necessary, the authorities can prepare for detailed recommendations for civil servants how employees should behave in the face of corruption. One example – Director General of the Customs Department of the Lithuanian Ministry of Finance Resolution No. 1B-711 of 18 September 2015 approved the Recommendations on customs officers’ actions when cash money is found or given during customs control or control (see Annex 12 of the Guide of Anti-Corruption Environment – 16.12. Recommendations on Customs Officers’ Actions WhenCash Money Is Found or Given During Customs Control or Control). It should be noted that this legislation, as an example of good practice were mentioned, and the European Commission in 3 February 2014 published by the European Union's Anti-Corruption report.
6.1.1. Anti-Corruption Educational Organization
Based on the size of the authority or institution, the person or department can be designated to be a mentor of an Anti-Corruption program. The appointed person or department should be responsible for the Anti-Corruption program, its preparation and implementation or the dissemination in the institution or authority, a permanent maintenance and development of the program.
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The project of Anti-Corruption program should be introduced to various departments, widely considered, by listening to employees' comments, observations, and suggestions on what actions could be effective in case of a particular company.
In addition, it is a question of law department as well as the knowledge of internal audit department and experience should be trusted in resolution to assess the most appropriate risks and effective actions that could be applied.
It is also important to discuss the situations of corruption, bribery, unfair operation that have already occurred, to assess how to prevent such situations and what actions should be taken if a similar problem is likely to recur.
The information about the Anti-Corruption program, its progress and actions taken may be disclosed in the intranet by the institution or authority. It can also use handouts, e-mail messages, trainings and educational programs.
While preparing for the implementation of Anti-Corruption program it could be valuable to meet the representatives of other institutions, which have already introduced such programs. It should be useful to listen to their experience, to know what actions have been very successful and gave good results, what situations were the most difficult and how to solve them.
It is also possible to use the information, research, analyses, recommended actions provided by non-governmental organizations.
6.1.2. Implementation of Anti-Corruption Education Training
A well-planned training program must accompany the implementation of Anti-Corruption program. Anti-Corruption training should be given to all employees, but its content can vary, depending on the units or certain positions and specifics of the risks to which they are exposed in their activities. The curriculum content and scope may also vary depending on the institution or body size, nature of the activity, the risk of corruption level.
The training must include all parts of Anti-Corruption program and reveal what each requirement means in the employee's daily activities. It is useful to provide concrete examples faced by the organization, publicized cases in the media or judicial decisions. It also makes sense to use dilemmas, which deals with mixed situations, encouraging employees to discuss, find acceptable, wise decisions. This forms the high culture and unified understanding of the institution or authority, and contributes to the high ethical standards.
Anti-Corruption training must be adopted to specific groups of employees and can take place in meetings, workshops, via e-learning or in various combinations of these methods. It depends on the needs of each group. The Anti-Corruption training can also be included in other periodic training programs.
Attention should be drawn to the training of those employees, who have higher risk for corruption – act in the fields or sectors of higher corruption or have a significant decision-making power. Seminars, discussions of practical situations should be held for these employees. The employees carrying out high-risk duties usually are not enough only e-learning. They should be provided with more individualized and live sessions. Upon the completion of the training it may be appropriate to verify the employees’ knowledge by tests or examinations.
The institution or authority should record when and what kind of Anti-Corruption training was organized, who participated in it, what the content of education was. Further training should be
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organized after the changes of legal requirements and organization structure, employees’ move to another position or after assignment of new functions.
Anti-Corruption education should not only be held once. It must be continuous. The frequency of training depends on the institution of authority, department, and corruption risk for specific position.
As a good example, can be regarded the online Anti-Corruption training 127organized by Polish Central Anti-Corruption Bureau. It consisted of three blocks: corruption in the Public-sector, corruption in the Private-sector and social consequences of corruption. Everyone can register online and complete the course of Anti-Corruption training for the selected topic, to pass the test and, if successful, print out a note of training completion.
6.2. Organization of Public Education in Educational Institutions of All Types and Levels
The Law on the Prevention of Corruption 128of the Republic of Lithuania establishes that, Anti-Corruption education of the society shall be carried out at educational institutions of all types and levels in accordance with the corresponding educational programs, through the media and other means.
In schools (educational institutions), carrying out formal education programs, Anti-Corruption education should be implemented as an integral part of general education, vocational education and training, and study programs in resolution to foster personal morals, citizenship, the understanding and respect the personal rights and duties of the society and Lithuania. In determining the goals and objectives of Anti-Corruption education, it is necessary to distinguish that it is the education of moral values and improvement of skills necessary to form civil position in respect of corruption. Objectives of Anti-Corruption education:
to introduce with the phenomenon of corruption: the essence, its manifestations, causes, consequences;
shape the provision of intolerance for corruption practices; provide the examples of Anti-Corruption opportunities and methods; contribute to the training and implementation of the objectives raised by training
programs. The deliverable of Anti-Corruption education – a person, who is aware of the danger of
corruption for the well-being of society and national security, intransigent with manifestations of corruption, and is seeking to dispose it.
The Anti-Corruption education (can be formal and non-formal. Formal education is when the Anti-Corruption themes and elements are included in the curriculum of subjects programs, Anti-Corruption education modules are included in vocational training programs. Non-formal education – various initiatives complementing the formal education are encouraged: seminars, civil campaigns, conferences of pupils (students), teachers (lecturers), Anti-Corruption weeks, posters, essay competitions, debates on Anti-Corruption theme, project works, etc.
Certain thematic context is necessary to be integrated in Anti-Corruption education. For example, the problem of corruption is difficult to understand without examining the public service purposes and the ethical and legal requirements for civil servants. If this topic is not discussed in civics or political science courses, it can be difficult to integrate Anti-Corruption education. On the
127 Central Anti-Corruption Bureau’s training platform. Internet access: https://szkolenia-antykorupcyjne.edu.pl/.128 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.
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other hand, the concepts and values that are important for the formation of Anti-Corruption provisions, can be transferred while considering other topics as well.
The methods of Anti-Corruption education integration can be different. The problems of Anti-Corruption education may be clearly formed and distinguished thus making it a separate module of few lessons. But the issue of corruption can also be discussed as an integral part, concretization or illustration of other topics and problems. It is important that Anti-Corruption education is not opposed to other disciplines and is aimed to avoid the risk for this education (training) to become the course of information on the opportunities of corrupted acts.
One of the methods to supplement the programs and extra curriculum activities with the topics directly related to corruption - easier to organize activities that do not last long, however, there remains a risk that it will be a program like "inclusions" or single campaigns. By selecting such method of education organization, it is easier to carry out its monitoring: it is enough to verify that all schools (classes, groups) carry out Anti-Corruption campaigns. However, in this case, there is a risk that there will be more focus on quantitative indicators, without considering the achievement of Anti-Corruption education goal - to shape personal attitudes and values. Another way - the analysis, the core values and concepts related to the phenomenon of corruption, to supplement the existing programs (by developing integrated and individual Anti-Corruption education program), to highlight the aspects that have received too little attention. This method is based on several years of social development. When choosing it, one must be sure that all teachers and lecturers are aware of the objectives, content, and opportunities of Anti-Corruption education.129
Anti-Corruption education activities should be provided in the education, training, study plan prepared by schools (educational institutions).
It should be noted that in all other cases, when it is intended to develop the provisions contrary to a “comfortable” practice, the Anti-Corruption education requires teachers’ wisdom, psychological insight and methodological excellence. Therefore, an integral part of teaching facilitation should be teachers’ training in the development of different training techniques, methods, and Anti-Corruption theme.130
6.3. Information Which Should Be Announced Public
The Law on the Prevention of Corruption131 provides the actions of corruption prevention. The publicity of determined corruption acts is among them. However, the law does not provide in detail the information, cases, actions, and time which should be published. We recommend to rely
129 Methodological recommendations on how to implement the Anti-Corruption education (education), can be found here:
Anti-Corruption education opportunities for secondary school: a methodological tool. - Education Supply Centre of the Ministry of Education and Science of the Republic of Lithuania, 2005. Electronic version is available at Special Investigation Service web page http://www.SIS.lt/lt/menu/antikorupcinis-svietimas/mokomoji-medziaga/.
Comments for development and implementation of integrated program https://duomenys.ugdome.lt/?/mm/socialinis/med=11/258.
Corruption in higher education institutions: approaches, problems and solution. – V.: Garnelis, 2005. Methodological tool for high school teachers and students. This publication presents taught curriculum and extended lecture plans, reflecting the opportunities for Anti-Corruption education.130 Modern didactics center, accredited institution (accreditation certificate No. AP No. 072, 2015-04-10 Resolution No. V335 of the Ministry of Education and Science), carries out by teachers and education support professionals providing in-service training, as well as Anti-Corruption education theme http://www.sdcentras.lt/sem_mokykloms.htm.131 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.
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on new requirements for the websites of state and municipal institutions and authorities that came into force on 1 July 2016.132
7. PROBABILITY OF CORRUPTION MANIFESTATION
The determination of probability of corruption manifestation is carried out based on the following legislation:The Law on the Prevention of Corruption of the Republic of Lithuania133 (hereinafter referred to as Law on the Prevention of Corruption), procedures of corruption risk analysis approved by the Resolution No. 1601134 of 8 October 2002 by the Government of the Republic of Lithuania, and setting guidelines for state and municipal institutions’ activities with high probability of corruption, approved by the Resolution No.2-170135 of 13 May 2011 by the director of Special Investigation Service.
Based on paragraph 2, Article 6 of the Law on the Prevention of Corruption, heads of state or municipal institutions, structural units or persons authorised by the head of state or municipal institution to carry out the prevention and control of corruption, determine the fields of state or municipal institution that shall be considered to be particularly prone to corruption according to the criteria provided in the law.
The probability of corruption manifestation is the hypothesis that the state or municipal institution implementing the assigned tasks may be at risk of corruption by making corruption-related crimes and other corruption-related offenses. This assumption is considered high when the corresponding activity meets at least one criteria laid down in paragraph 3, Article 6 of the Law on the Prevention of Corruption.
7.1. Listing of Institutions’ Activities
To the extent to efficiently determine the probability of corruption manifestation, it is appropriate to fully identify the activities of the institution and identify potential related corruption risks (the exemplary list of municipal activities can be found in the Annex of the Guide of an Anti-Corruption Environment (16.8. Examples of Municipal Focus Areas).
State or municipal institution’s activity shall be regarded the procedure to perform the function assigned by legislation. The institution’s list of activities can be conditionally divided into two separate parts. One list would consist of activities related to the assurance of self-functioning (internal administration), which tends to be common in many institutions. Such activities could include procurement planning, initiation, organization, execution and control, the use of state secrecy or asset management and usage. The second part of the list includes the activities directly and ingenuously related to the specific functions of the institution. In resolution to rectify the activities of the institution it is appropriate to divide the specific functions of the institution into the necessary procedures. For example:
132 Internet access: https://eseimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.209540/IkpcQBWXHi?positionInSearchResults=13&searchModelUUID=e8b3526e-463c-41f4-8f68-1e8cef2d0833.
133 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.134 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.B96A881B578F.135 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.D7EDC15D339E.
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1) One of the functions of State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania, determined in the provisions by the Resolution No. 110 by Lithuanian Minister of Finance on 29 July 1997 is tax calculation, declaration, and control of payment equity (paragraph 9.9 of the provisions). One of the procedures by which this function is implemented is tax inspection136. Therefore, the activities related to this function are such procedures as tax planning, organization, execution, etc.
2) One of municipal function provided in the Law on Local Government is a formation of fund for municipal social housing, repair, and rent (paragraph 5, Article 6). Therefore, one of the municipal areas of activity is regarded the administration and rent of social housing.
It could be more rational to include larger activities that could sub-summarize the smaller activities in the list. For example, the rent of social housing performed by the municipality may include the following sub-activities: the provisions of whether a person has the right to social housing; listing of persons entitled to social housing; the decision making to contract the social housing rent; to contract the social housing rent.
7.2. Assignment of Corruption Risks Factors to the Fields of Activities
When the fields of activities of the institution have been identified, the next step is the identification of the corruption risk factors, which are assigned to these fields i.e. identify the causes, conditions, events, and circumstances on which the risk of corruption may occur while performing the corresponding procedure.
When the corruption risks factors are assigned to the particular activity of the institution (it is advisable to mark using the Annex No. 16.7. of the Anti-Corruption Environment Guide “The fields of activities of the institution and the existing corruption risk factors”), there should be considered to the following criteria and the following circumstances of paragraphs 3 and 5 of Article 6 of the Law on the Prevention of Corruption:
1) whether all the implementing legislation is accepted, performing the functions that are assigned to the institution;
2) whether the decision-making order determined by the implementing legislation of the institution is transparent and sufficient and whether it is not granted too much authority to the civil servants or persons treated to act at one‘s discretion and does not impose excessive requirements and sufficient (whether the decision-making principles are established; whether the acceptance criteria and the decision-making terms are clear; their authorities are clearly defined; the functions of decision-making, execution and control are established; the appeal procedure is established, etc.);
3) whether the internal control procedures are enshrined in the implementing legislation, which are adopted by the institution; whether the internal control system works properly (whether the possible forms of control, the control procedures and the control actions intervals are provided; whether the subjects of control functions and decision-makers are provided; their authorities are clearly define, etc.);
4) whether there is any other data, which are significant for the corruption risks.
136 Based on paragraph 2, Article 22 of the Law on Tax Administration of the Society of Lithuanian, the tax verification is "the verification of the tax payer, which is carried out by the tax administrator in order to control that the taxpayer carries out the requirements in the cases of the tax calculation, declaration, payment and cases provided by law - and in other areas."
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7.3. Assessment of a Need for the Determination of the Probability of Corruption Manifestation in Certain Activities
Once the list of the fields of activities is concluded and the existed corruption risk factors are marked, the fields of activities, which have a high probality of corruption manifestation, are identified.
As mentioned above, the list of the fields of activities of institution and the list of risk factors of corruption could be formed by adding the table where the fields of activities are listed in the column and the relevant risk factors in line. In this way, adding the table and counting, the assessed fields of activities of the institution, which has the mainly risk factors, should be selected. The remit of the relevance of anti-corruption should be led by the criteria of paragraphs 3 and 5 of Article 6 of the Law on the Prevention of Corruption.
Activities of an institution are attributed to the areas with great probality of corruption manifestation where one or more of the following criteria are met:
1) Acts of corruption have been committedThe compliance with this criterion shall be determined by assessing whether or not any
corruption-related offences referred to in Article 2(2) of the Law on the Prevention of Corruption have been committed at the institution during the reporting period (branch office, a management agency within the institution). It shall be also assessed whether the institution has recorded any offences of similar nature, however, less dangerous that entail administrative or official (disciplinary), or any other legal liability. The performance of the institution (division, the management agency of the institution) is considered to meet the criterion irrespective of the stage of the criminal proceedings (investigation of an administrative violation of law, or an investigation of an official misconduct).
2) Principal functions are control and supervision The institution is considered to comply with the criterion in case the institution (its
division, a management agency within the institution, or individual civil servants or employees) have been authorised to supervise the compliance of natural and/or legal persons not subordinate to them with laws, legal acts and regulations in respective governance areas, or carry out the control functions not related to the internal administration of the institution.
3) The procedure for decision making of individual civil servants, their functions, and tasks as well as their liability are not extensively regulated
The activities of the institution are considered to meet the criterion where it is established that: (i) the tasks performed by civil servants and employees, their functions, their work are not regulated (insufficiently regulated) in the disposition of administrative regulations of the institution or of other legal acts; (ii) there are some collisions between laws and the implementing legal acts and regulations; (iii) the administrative instruments necessary for the implementation of laws and other legal acts have not yet been adopted; (iv) the civil servants and the employees of the institution have extensive decision-making discretion; (v) the procedure for control of the administrative decisions or the activities of civil servants or the employees, or the liability of civil servants or employees are not defined (insufficiently regulated) by legal acts and regulations of the institution, etc.
4) The activities are related to granting of permits, discounts, reliefs or other additional benefits or restrictions
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The activities of the institution are considered to meet the criterion if it is established that the public or municipal institution (its division, a management agency within the institution, or individual civil servants or employees) have been granted the authorisations to issue permits, licences, grant discounts, or other additional rights, or refuse to issue the same, or suspend, or revoke, or otherwise encumber them, apply other legal actions provided for in legal acts, establish and investigate violations or law and pass decisions regarding the application of legal liability.
5) In most cases passes decisions that do not require approval from other public or municipal institution
The institution is considered to meet the criterion where the institution (its division, a management agency within the institution, or individual civil servants or employees) has been granted the authority to independently pass decisions related to the management, use and disposal of state or municipal assets, also decisions in the area of administrative regulation, provision of administrative services, the provision of public services in the area of administration, when such decisions are related to the regulation of public relations of several types, and/or the area of management of other institutions and/or area of governance or competence of other institutions, however, the relevant legal acts do not provide for an obligation to coordinate the actions with other public of municipal institutions, and /or does not require approval from other public or municipal institutions.
6) The institution uses the information constituting state or official secretThe institution is considered to meet the criterion where the activities of the institution (its
division, a management agency within the institution, or individual civil servants or employees) are related to classifying and declassifying of information, the use or protection of classified information, and individual employees of the institution are producers or recipients of such information.
7) Deficiencies in the performance has been established in relation to a previous analysis of risk of corruption
The compliance of the institution with the criterion is established only where the Special Investigation Service has conducted a corruption risk analysis at the institution, and produced a report on the analysis. The activities of a public or municipal institution are considered to meet the criterion provided the Report of the Special Investigation Service identified the deficiencies in the performance of the institution (its division, or a management agency within the institution), and submitted proposals as to their elimination.
With a view to comprehensively assessing the situation and establishing any potential risk factors, it is reasonable to additionally assess whether or not:
1) there have been any attempts to influence the employees of the public or municipal institution in violation of the procedure set forth by legal acts;
2) any corruption-related offences have been established and disclosed in other public or municipal institutions performing similar functions;
3) the system of supervision of the Public or municipal institutions should be improved;4) the decisions taken are related to material or other benefit of the applicant;5) there have been any violations of the existing orders (for instance, in relation to
distribution of budgetary funds, submitting orders or passing other decisions);6) the public or municipal institution is an independent manager of budgetary
appropriations;
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7) the National Audit Office, the Ombudsmen of the Seimas or any other supervisory authority have established any violations in the activities of that public or municipal institution;
8) other information about corrupt practices in the activities of a state or a municipal institution (provided by intelligence, complaints and reports of the public, the mass media or available otherwise) has been obtained.
7.4. Methodological and Practical Provisions on the Evaluation of the Areas of Activities of the Institution Particularly Prone to Corruption
Following the criteria set forth in Article 6 (3) and (5) of the Law on the Prevention of Corruption an evaluation of an area of activity shall be carried out should any specific areas particularly prone to corruption be identified; an evaluation shall include an identification of corruption risk factors, an evaluation of specific reasons, conditions, events, circumstances in of which corruption risk may become relevant in certain specific areas of activities.
In an ideal case a corruption risk analysis should be performed in all areas of activities prone to corruption. However, understandably, such areas would be quite numerous, therefore this would entail an irrational use of the institution’s resources. The most efficient way would be to review all the areas of the institution every five or three years, and evaluate, on an annual basis, 3-4 areas of activities characterised by the largest number of corruption risk actions.
Thus, having selected 3-4 areas of activity, they are subject to an evaluation with a view to establishing the reasons for potential corruption, and submitting proposals for mitigating the probability for such corruption.
With a view to properly assessing the areas of activities prone to corruption it is reasonable to examine the following circumstances.
In case an area of activities of an institution is assigned to the areas specifically prone to corruption because a corruption-related offence has been committed, the following shall be considered:
1) how was the corruption-related offence, or the violation of similar nature, however, less dangerous that entail administrative or official (disciplinary), or any other legal liability established (e.g., in case a law enforcement authority initiates a pre-trial investigation on the basis of the information provided in the conclusions of statutory audit or municipal controller, the conclusions of the company’s internal audit, or those of a private audit company, complaints of citizens, the media or any other information);
2) has the information been submitted to the registers of civil servants and legal entities, have the facts been made public;
3) have the employees of the institution, or other persons working at the institution been provided the possibilities to apply and inform (also anonymously) the managers of the institution of any offences related to corruption, or offences less dangerous, have any such reports been received;
4) has any investigation been performed at the institution regarding the possible gaps in the regulation of the Institution’s activities, or any other shortcomings in the internal control of the institution, or any other reasons that might have potentially facilitated the illegal activities, and the conclusions of such investigation;
5) have any appropriate actions been taken to eliminate gaps of legal regulations, enhance the efficiency of the institution’s internal control system, and how efficient are the actions.
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When an area of the institution’s activities is assigned to the activities prone to corruption because the principal functions of the institution is exercising control and supervision, the following shall be considered:
1) has the institution on the basis of laws and other regulations granting the right to exercise control and supervision functions adopted the required legal acts and regulations specifying and determining the forms, procedures and periodicity of the control and oversight actions;
2) do the legal acts passed by the institution specify the entities exercising the control and supervisory functions and passing decisions (divisions, and individual employees), are their rights and obligations defined comprehensively and accurately, have the entities been granted extensive authorisations to act at their own discretion;
3) has the institution passed legal acts or any decisions securing the compliance with the requirements of the Law on the Adjustment of Public and Private Interests in the Public Service;
4) do the legal acts passed by the institution provide for a specific and accurate decision-making procedure (e.g. decision making principles, criteria, terms) in exercising its control and supervisory functions;
5) do the legal acts passed by the institution clearly segregate decision-making, control and supervisory functions;
6) do the legal acts passed by the institution regulate the procedures for the internal control of operations and decision making of the entities exercising control and supervisory functions, is such control being exercised, and is it efficient;
7) do the internal legal acts passed by the institution provide for a procedure of appealing actions or decisions of the entities exercising control and supervisory functions;
8) has the institution received any complaints or reports from citizens, or any other information regarding the legality, reasonableness of the actions and passed decisions of the entities exercising control and supervisory functions, and has any investigation been conducted in that respect;
9) are the legal acts passed by the institution periodically reviewed, and efforts made to eliminate any gaps or collusions in the legal regulation;
10) are the decisions passed by the institution publicly accessible;11) does the institution publish information about the entities scheduled to be inspected;12) whether or not the institution provides services in electronic area.When the area of activity is assigned to the areas prone to corruption because the
procedure for decision making of individual civil servants, their functions, and tasks as well as their liability are not extensively regulated, the following shall be considered:
1) has the institution passed any legal acts (regulations of individual divisions of the institution, commissions, etc., rules of procedures, job descriptions or regulations of employees, other regulations) governing the tasks of individual civil servants or employees, their functions, work and decision making procedures, the criteria, principles, and liability, and whether or not the employees of the institution have been introduced to the legal acts upon their signed acknowledgement;
2) whether adoption of legal acts governing the tasks or functions of individual civil servants or employees take into account the tasks and the functions of the institution (the division);
3) whether the tasks and functions of individual civil servants and employees defined in legal acts passed by the institution are sufficient for the purpose of implementing the functions and the functions of the institution;
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4) whether the relevant legal acts ensure adequate subordination and reporting obligations of individual civil servants and employees;
5) whether the legal acts passed by the institution actually regulated the procedure for the internal control (preventive, current, subsequent) of the performance and decision making of civil servants and employees;
6) whether the legal acts passed by the institution regulate the procedure, forms and periodicity of civil servants and employees;
7) whether the institution has adopted a code of ethics of civil servant and employees, and the manner of exercising the control for the implementation and the compliance with the code;
8) whether the legal acts concerned being periodically reviewed, and there is a procedure for the elimination of legal regulation gaps and collisions.
In case an area in the activities of the institution is assigned to the are particularly prone to corruption because the activities of the institution are related to granting of permits, discounts and other additional rights, and restrictions, the following should be considered:
1) has the institution, on the basis of laws and other legal acts, passed the legal acts prescribing the procedures for the issue or a refusal to issue, the granting or a refusal to grant permits, licences, reliefs, or other additional rights, their legal liability, the procedures of other legal and economic actions; do the legal acts concerned explicitly and clearly regulate the course and the terms of the administrative procedure, and provide for specific measurable requirements for the persons participating in the procedure (e.g., the requirements concerning the legal status of the persons, or the document submitted thereby, etc.);
2) do the legal acts passed by the institution explicitly and clearly define the entities (the institutions, civil servants and employees) issuing or refusing to issue permits, licences and other documents, or enforcing legal liability, and applying other actions of legal or economic impact, has the competence of the entities been clearly defined, or the entities have been granted excessive authority to act at their own discretion;
3) do the legal acts of the institution grant the right to issue and award permissions, licences and other documents, apply legal liability, other actions of legal and economic effect to a collegial institution; do the legal acts extensively regulate the procedure for setting up of the collegial institution, renewal of its composition, procedure for appointing new members, procedure for passing administrative decisions, do the legal acts provide for personal liability of members of the collegial institution for the decisions they have passed;
4) do the legal acts of the institution provide for clear criteria, the principles underlying a decision to issue or refuse to issue permits, licences and other documents, and provide for specific deadlines and terms for passing administrative procedure decisions;
5) does the existing legal regulation ensure the transparency of the activities and the relations between the individual entities of such entities, and does not create unequal or discriminatory conditions for entities operational in a specific area (by applying exceptions or advantageous terms to certain entities operating in the area);
6) do the legal acts passed by the institution provide for a proper segregation of the functions related to passing decisions to issue or refuse to issue permits, licences, and other documents, and the functions of the supervision and control of licensed and other activities, and the imposition of sanctions;
7) has the institution put in place the regulation of the internal control (preventive, current, and ex-ante) of the decisions of issue or refuse to issue permits, licences or other documents;
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8) does in connection with issuing or refusing to issue permits, licences, reliefs, granting or refusing to grant any additional right the institution apply a ‘one stop shop’ principle;
9) does in connection with issuing or refusing to issue permits, licences, reliefs, granting or refusing to grant any additional right the institution apply information technologies (has the e-government and service system been or being installed);
10) do the legal acts passed by the institution provide for a procedure of appealing actions or decisions passed by the entities issuing permits, licences and other documents;
11) has the institution received any complaints of citizens, notices or information of other type regarding the validity and legality of the actions or decisions of the entities issuing or granting permits, licences or other documents, and has the institution carried out any investigation of such information;
12) are the legal acts of the institution periodically reviewed, and actions taken to eliminate the legal regulation gaps or collisions.
In case an area of the activities of the institution is assigned to the areas prone to corruption because the institution mostly passes decisions that do not require an approval from other public or municipal institution, the following shall be considered:
1) do laws and other legal acts grant the institution the right to pass normative legal acts, has the institution passed its internal legal acts specifying the procedure for passing legal acts, does the institution carry out an assessment of the impact of draft legal acts upon the scope of corruption;
2) has the institution passed any legal acts governing the procedures for passing decisions regarding management, use and disposal of the assets that do not require any approval from another public or municipal institution;
3) has the institution passed legal acts ensuring the implementation of the requirements of the Law on Public Procurement of the Republic of Lithuania;
4) do the legal acts passed by the institution specify specific entities authorised to pass such decisions, has the competence of such decision-making entities been comprehensively and clearly defined;
5) do the legal acts passed by the institution authorise the collegial body to pass decisions, have the procedures for the setting up, renewal of the composition, appointing of members, or decision making, and do the legal acts provide for an individual liability of the members of the collegial body for the decisions;
6) do the legal acts passed by the institution regulate the internal control (preventive, current, and ex-ante) procedures of passing decisions that do not need an approval of another institution, also the decisions related to the management, use and disposal of the institution’s assets;
In case an area of the activities of the institution is assigned to the areas prone to corruption because the institution uses information constituting a state or official secret, the following shall be considered:
1) has the institution approved and put in place the regulations for the administration, protection and control of classified information;
2) has the institution ever recorded any infringements in the procedure for administration, protection and control of any classified information, has there been any investigation regarding the reasons or conditions for such infringements, and what actions have been taken;
3) are the legal acts governing the procedure for the administration, protection or control of classified information being periodically reviewed, and any efforts made to eliminate any gaps or collusions in the legal regulation;
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4) has a special expert panel been set up at the institution, and whether its activities are regulated;
5) has the institution drawn up and approved a list of classified information, and whether and how often such list is reviewed and renewed.
In case an area of the activities of the institution is assigned to the areas prone to corruption because the institution has identified any shortcomings in the activities of the company’s performance in relation to a previous corruption risk analysis, the following should be considered:
1) has the institution properly and in a timely basis implemented the recommendation provided by the Special Investigation Service in its report on the corruption risk analysis, and the relevant proposals;
2) have any actions been taken with a view to managing and/or eliminating the corruption risk factors identified in relation to the corruption risk analysis.
The identification and the assessment of the areas of the institution’s activities prone to corruption, shall be carried out in writing, i.e. by specifying the areas of activities of the Institution meeting the criteria of high corruption risk, the actually identified corruption risk factors, recording the information obtained in the course of the identification and evaluation of the risk factors, submitting proposals for mitigating corruption risk, and describing other relevant circumstances and information.
A description of the process for the identification of areas of activities prone to corruption, and the procedure for the assessment of such areas should also include an assessment on the progress of the implementation of proposals for mitigating the risk factors identified in the course of the previous identifications of corruption risks, and provide relevant proposals in the that respect.
7.5. Methodological and Practical Provisions on Drawing up a Reasoned Conclusion Concerning the Activity Areas of the Institution Particularly Prone to Corruption
The description of the procedure for identifying and assessing the activity areas of the institution particularly prone to corruption is the basis for drawing up a reasoned conclusion concerning identification of the activity areas of the institution particularly prone to corruption (hereinafter – a reasoned conclusion).
A reasoned conclusion shall indicate:(1) the institution in the activity areas whereof it was verified whether there was a high
probality of corruption manifestation;(2) the areas of the institution where a high probability of corruption manifestation has
been identified;(3) the entities which have drawn up the description of the activity areas of the institution
particularly prone to corruption;(4) the period of time analysed, the methods applied and the actions taken, the criteria for
assessing the existing situation of the institution;(5) the corruption risk factors in the activity area of the institution particularly prone to
corruption, the legal acts, decisions, administrative procedure decisions, etc. supporting this conclusion;
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(6) a detailed explanation of the reasons behind any differences between the existing situation and the situation that should be in place according to the assessment criteria, assessment of their impact on the existence of probality of corruption manifestation;
(7) the actions to be taken in order to manage or eliminate the corruption risk factors identified;
(8) how recommendations for the elimination of the corruption risk factors identified during the previous assessments of the probality of corruption manifestation are implemented;
(9) information about the implementation of the corruption prevention actions set out in the Law on the Prevention of Corruption;
(10) other relevant information.Reasoned conclusions of ministries or municipal institutions and the institutions
accountable to the President of the Republic of Lithuania, the Seimas of the Republic of Lithuania or the Government of the Republic of Lithuania shall be normally signed by the heads of these institutions, except:
(1) where the identification and assessment of the activity areas of the institution particularly prone to corruption is carried out in a public institution, a reasoned conclusion drawn up according to the description of the identification and assessment procedure provided by the Public institution shall be signed by the head of the institution exercising the rights and performing the obligations of the founder of the public institution;
(2) where the identification and assessment of the activity areas of the institution particularly prone to corruption is carried out in a municipal institution, it shall be signed by the mayor of the relevant municipality;
(3) where the identification and assessment of the activity areas of the institution particularly prone to corruption is carried out in a state institution, which is not directly accountable to the President of the Republic of Lithuania, the Seimas of the Republic of Lithuania or the Government of the Republic of Lithuania, it shall be signed by the head of the institution to which it is subordinate (or belongs to its regulatory domain);
(4) where the identification and assessment of the activity areas of the institution particularly prone to corruption is carried out in institutions under a ministry, institutions established by and/or subordinate to ministries, it shall be signed by the relevant minister.
In practice, the identification and assessment of, as well as drawing up of a reasoned conclusion on the activity areas of the institution particularly prone to corruption may look as outlined below:
Example 1. – A public institution identifies the activity areas with a high probality of corruption
manifestation and carries out their assessment;– a description of the procedure for identifying and assessing the activity areas of the
institution particularly prone to corruption is submitted to the ministry, which exercises the rights and fulfils the obligations of the founder;
– the ministry draws up a reasoned conclusion where it sums up and systematises the conclusions concerning the identification of the probality of corruption manifestation in this and other institutions (public institutions) assigned to the management area of the ministry, as well as in its own activity areas;
– the minister signs a reasoned conclusion.Example 2.
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– A municipal institution identifies the activity areas with a high probality of corruption manifestation and carries out their assessment;
– a description of the procedure for identifying and assessing the activity areas of the municipal institution particularly prone to corruption is submitted to the administration of the municipality, which exercises the rights and fulfils the obligations of the owner;
– the administration of the municipality draws up a reasoned conclusion where it sums up and systematises the conclusions concerning the identification of the probality of corruption manifestation in this and other institutions (public institutions) of this municipality, as well as in its own activity areas;
– the mayor of the municipality signs a reasoned conclusion.It should be noted that the identification of the probality of corruption manifestation shall
be organised so that the identification and assessment of, as well as drawing up and signing of a reasoned conclusion on the activity areas of the institution particularly prone to corruption are completed every year, by the end of third quarter.
The signed reasoned conclusion shall be submitted to the Special Investigations Service not later than within one month.
The signed reasoned conclusion shall also be published in section “Corruption Prevention” of the website of the institution, which has drawn it up, and the description of the procedure for identifying and assessing the activity areas of the institution particularly prone to corruption shall be posted on the website of the institution, which has carried out this identification and assessment.
7.6. Reduction of Corruption Risk in Business Activities Which Are Prone to High Probability of Corruption Manifestation
The determination of institution’s activities that are prone to corruption, should not become a gratuitous process. In the operating system of the whole institution it should become a means to reduce the risk of corruption. Therefore, after the determination of activities that are probality of corruption manifestation, and after the identification of corruption risk factors, it is necessary to reduce these risks, i.e. to specify and implement the actions mitigating the corruption risk and preventing possible manifestations of corruption.
The general corruption prevention actions are laid down in the Law on the Prevention of Corruption. Since those actions are related to the general environment of anti-corruption of the whole institution, it should be held that the introduction of new factors of corruption risk, they may not be sufficient to manage the risk of corruption. Therefore, to reduce the risk of corruption in the activities of the institution, which are prone to of corruption probability, it is necessary to take actions which are diverted to the identified specific factors of corruption risk.
In order to structure the preventive activity of the institution, the actions meant to reduce the corruption risk in the institution may be included in the actions plan of anti-corruption program. Thus, when organizing the activity reducing the corruption risk it would be clearly determined which tools are assigned to the specific factors of corruption risk, who is responsible for the enforcement of the action, what are the deadlines and criteria for the assessment of the result which is expected after the completion of the action.
The possible actions to reduce the risk of corruption in the activities of institutions, which are particularly prone to corruption, could be the following: the correction of legal regulation gaps,
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the refusal of the execution of harmful procedural aspects by the organizational or legal means, strengthening of control over the development of the existing mechanisms or introducing new ones, introduction of four-eyes principle, reduction of bureaucracy, installation and development of the system for the notification about the manifestations of corruption, regular training of personnel on the topics of anti-corruption etc.
7.7. Problems of Probability of Corruption Manifestation
During the analysis of motivated conclusions submitted by national and municipal institutions performed by the Special Investigation Service the negative tendencies for the detection of probability of corruption manifestation have been observed, which reduces the efficiency of preventive systems of corruption.
The following problematic tendencies may be distinguished:- The determination of probability of corruption manifestation is often carried out formally
and basically without going deeper into the subject. Most commonly the formality is that only the laws and local legislation of the Republic of Lithuania regulating the analysed activities are listed in the motivated conclusions without any deeper analysis in the conformity of adopted integral legal acts to the laws and other valid legislation and without any additional analysis in the practical execution of the procedures, e.g. the procedures and criteria of decision-making, the transparency of certain procedures, the functionality of internal controlling system etc. Also, the activities of little relevance to the anti-corruption aspect are often chosen for assessment.
- Most institutions avoid recognizing that most of their activities are prone to corruption and claim that only “small”, “minimum”, “slight” chance of corruption is likelihood in the analysed activities or there is no chance at all. For example, the areas of social supporting, administration of social housing and issuance of construction permissions may be assigned to the municipal activities which are prone to corruption, because they correspond to the criteria no. 4 and 5 of paragraph 3, Article 6 of the Law on the Prevention of Corruption, i.e. “the activity is related to the provision and restriction of permissions, concessions and other additional rights”; “most frequently the decisions, which do not require any approval of other national or municipal institution”, as well as the criteria no. 4 and 6 provided in paragraph 5, Article 6 of the Law on the Prevention of Corruption, i.e. the decisions are related to the material or other benefit of the beneficiary; the state or municipal institution is independent manager of budget appropriation. However, some municipalities claim that the probality of corruption manifestation in the areas of the administration of social housing and issuance of constructional permissions carried out by them do not exist.
- Sometimes the conclusions lack of motivated reasons, i.e. certain deficiencies in the area analysed, unsubstantiated facts, unexplained causes that led to the differences of current situation and aim in accordance with the evaluation criteria are identified.
- Very often the institutions confine to the determination of the activities which are prone to corruption, their assessment and identification of risk factors but do not provide actions to mitigate the risks.
- Often no evaluation of the implementation of proposals for the reduction of corruption risk factors set out in the previous determination of the probality of corruption manifestation is provided.
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- Not always motivated conclusions as well as description of the determination and assessment processes of operating activities which are prone to corruption are announced in the websites of the institutions.
It should also be noted that, although it does not meet all the requirements and suggestions the good practice can be considered the motivated conclusions of the following institutions:
- Vilnius District Court, 2013 137,- Ministry of Finance of the Republic of Lithuania138 (submitted in the beginning of 2015
for the year of 2014),- Anykščiai District Municipality, 2015139,- Joniškis district municipality , 2015140,- Kalvarija municipality, 2015141,- Ministry of Culture of the Republic of Lithuania, 2015 142,- Ministry of Transport of the Republic of Lithuania, 2015 143,- Ministry of Internal Affairs of the Republic of Lithuania, 2015 144,- Vilnius City Municipality, 2015145.
137 Internet access: http://www.SIS.lt/documents/korupcijos_prevencija-kpt/Vilniaus_apygardos_teismas_KPT.pdf.138 Internet access: http://www.SIS.lt/documents/korupcijos_prevencija_kpt_2014/FINMIN2015.pdf.139 Internet access: http://www.SIS.lt/documents/kpt_2015/Anyksciu_KPT_2015.pdf.140 Internet access: http://www.SIS.lt/documents/kpt_2015/Joniskio_rajonas_KPT_10_29.pdf.141 Internet access: http://www.SIS.lt/documents/kpt_2015/Kalvarijos_savivaldybe_KPT_11_06.pdf.142 Internet access: http://www.SIS.lt/documents/kpt_2015/Kulturos_ministerija_KPT_2015.pdf.143 Internet access: http://www.SIS.lt/documents/kpt_2015/Susisiekimo_ministerija_KPT_10_29.pdf.144 Internet access: http://www.SIS.lt/documents/kpt_2015/Vidaus_reikalu_ministerija_KPT_10_22.pdf.145 Internet access: http://www.SIS.lt/documents/kpt_2015/Vilniaus_miesto_savivaldybe_KPT_11_05.pdf.
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8. PREPARATION, COORDINATION AND IMPLEMENTATION OF CORRUPTION PREVENTION PROGRAMS AND ACTION PLANS
8.1. Corruption Prevention Programs and Their Preparation
In accordance with Article 7 of the Law on the Prevention of Corruption and provisions of the national Anti-Corruption program of the Republic of Lithuania for 2015-2025 such prevention of corruption programs is distinguished as follows:
1) National Anti-Corruption program of the Republic of Lithuania;2) Programs for the prevention of sectoral corruption, the preparation of which was
discussed in the national Anti-Corruption program for 2015-2025 of the Republic of Lithuania: preventive programs for public procurement, elections, political parties, political campaign financing, environmental protection, health care, corruption in sport;
3) institutional: programs of corruption prevention approved by the ministerial and municipal councils. The programs of corruption prevention of ministries may include all subsidiaries subordinate to the ministry, so they do not need to approve their own programs, but only to implement the actions provided in the program of corruption prevention by the ministry during the annual activity plans. The programs approved by the municipal councils may include all the activity of corruption prevention by all municipal institutions, companies, and public limited companies as they do not need to approve of their own corruption prevention programs, but only to implement the assigned actions provided in the program of corruption prevention by the municipality during the annual activity plans. It is worth noting that the institutions subordinate to the ministries, municipal institutions, companies, and public limited companies may also have their own separate corruption prevention programs and their implementation plans or to determine additional actions for corruption prevention in a general program etc.;
4) The programs of corruption prevention () of state and municipal institutions, which can be prepared in the event if provided by national, sectoral, or institutional program, as well as it is proposed to set up by Special Investigation Service of the Republic of Lithuania or the head of any state or municipal institution decides to prepare it regarding the identified factors of corruption risk.
The purpose of the corruption prevention program (hereinafter - Program) is to ensure the long-term, effective, and targeted system of corruption prevention and control in the entity of the Public-sector.
The following steps of the program have been distinguished:- Preparation of the program draft;- Coordination of program draft;- Approval of the program.The executive group may be gathered to prepare the program draft in a state or municipal
institution (public entity). If the state or municipal institution, which initiates the preparation of the program, finds that other state and municipal institutions such as state institutions subordinate to the minister or the institutions controlled by the municipality will be the executors of the program the executive group shall also involve the representatives of these institutions.
The draft program shall be published in the legislative information system of the Chancellery of the Seimas of the Republic of Lithuania, and allows all persons concerned to provide comments and suggestions for the program draft.
The prepared program draft is coordinated with all executors of the program.
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The program shall be approved by the head of state or municipal institution, which prepares it. The approved program shall be published in the legislative information system of the Chancellery of the Seimas of the Republic of Lithuania. The employees of state or municipal institution participating in the implementation of the approved program shall be introduced to the program.
The program should be consistent, coherent, and logical. It should be focused on the reduction and elimination of corruption conditions and risk as well as risk management. The program may consist of two fields: the prevention of corruption and anti-corruption education.
It is proposed to determine the following structure of the program:1. Name of the program.2. General provisions.3. Environmental analysis.4. Aims, objectives, and evaluation criteria of the program.5. Implementation, financing, monitoring, evaluation, reporting, control, change, addition
and renewal of the program.6. Plan of program implementation (hereinafter - action plan).
The title of the program indicates the name of state or municipal institution, content, and the period for which the program is organized. The proposed period - not less than 2 years. For a sectoral program, this should be indicated in the title of the program. The general provisions of the program determine the legal basis, purpose for program preparation, concepts used in the program and other provisions that the organizers of the program find to be necessary. Environmental analysis is carried out in accordance with the principles of institutional strategic planning of environmental analysis and includes the analysis of external (e.g., constant communication with people who strive for some goals and who can offer a bribe to civil servants and so on) and internal (excess discretion of decision-making officials, regulatory gaps, lack of efficiency of the internal control and so on.) factors, strengths and weaknesses, threats, and opportunities. Here, the potential of state or municipal institution is examined in its surroundings. The environmental analysis should not be limited to the listing of activities that might have a risk of corruption.
The environmental analysis also provides with the data of the related sociological studies (including the index 146data of the employees’ tolerance to corruption), the data obtained from the audit assessing the corruption risk within state institutions, as well as data received during the procedure of corruption determination. Moreover, the information on corruption-related offenses and misconducts has been collected and evaluated. Specific assumptions of corruption (legal, institutional, etc.) have been specified. The environmental analysis is appropriate to evaluate the efficiency of previous anti-corruption policies (Program), identify the actions that have been effective, and which did not give the desired results, or decreased (and how) to the probability of corruption manifestation in a state or municipal institution, after the implementation of the actions.
146 The index of tolerance to corruption may be determined by interviewing all employees with the following anonymous questions: 1) would the emloyee notify the head of the institution or other competent person in case of unfair behaviour of other employee, i.e. when one does not follow the requirements of legislation 2) does the employee justify the unfair behaviour, i.e. when one does not follow the requirements of legislation at work; with consideration to the data of other surveys and questions.The Lithuanian index of tolerance to corruption has been determined by the special surveys of Eurobarometer No. 374 and 397 regarding corruption. Internet access: http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf; http://ec.europa.eu/public_opinion/archives/ebs/ebs_397_en.pdf.
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In determining the program's objective, such as achieving an index of a certain level of state institution employees’ tolerance for corruption, there is an ambition for a certain period to implement one or more objectives of the program.
In determining the target of the program certain activity 147is planned within the prescribed period to ensure the realization of the objective.
Specific actions shall be identified in the program to implement the tasks and objectives, considering the problems identified by environmental analysis.
The program provides with the date when it or its part comes into force.The program sets out how the program will be made public and the information related to
the implementation of the program.
8.2. Implementation, Monitoring and Other Actions of the Program of Corruption Prevention
The implementation of the program shall be coordinated and controlled by the head of state or municipal institution or the structural unit or person authorized by the head of a state institution to carry out the prevention and control of corruption in the institution148.
The program establishes the procedures of program monitoring, evaluation, and control. It also identifies the entities responsible for the monitoring, evaluation, and control of the program.
To consistently assess the progress achieved, the timely detection of obstacles and challenges in implementing the program, the following aspects are proposed:
1) to carry out regular monitoring of program implementation and evaluation, considering changing circumstances and factors, which affect or may affect the implementation of the program;
2) to regularly, at least once a year (after the end of calendar year) to provide the summarized information of the progress and effectiveness of program implementation. When necessary to provide supporting documents to the persons coordinating and controlling the implementation of the program as well as announce it public;
3) to assess for persons coordinating and controlling the program the submitted information on the program implementation and effectiveness and, if necessary, to take immediate actions to remove identified obstacles and problems which may disturb to achieve the objectives and tasks of the program, and carry out the actions of action plan in time.
The achievement of objectives provided in the program shall be assessed based on the objective outcome criteria. The tasks of the program shall be assessed based on result assessment criteria 149set out in the action plan.
All information related to the program implementation and evaluation, shall be available on the website of state institution, which developed and approved the program.147 The tasks of the program shall be formulated as the following principles could be implemented: 1) publicness and openess of the institution; 2) transparency and crearness of the procedures; 3) fairness, loyalty and increasing of reliability of the employess; 4) Increasing of the awareness of anti-corruption and integrity; 5) motivation not to accept or give a bribe and report about the curruption.148 The basics for the person authorized to carry out the corruption prevention and its control in the institution have been determined in Article 16 of the Law on the Prevention of Corruption of the Republic of Lithuania, as well as the activity and cooperation rules approved by resolution No. 607 on 19 May 2004 of the Government of the Republic of Lithuania Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=233772&p_tr2=2.149 The examples of formulation of the assessment criteria of objective result as well as expected results are available in the program of National anti-corruption 2011-2014 and its report. Internet access: http://www.stt.lt/documents/nkkp/NKKP_Ataskaita_2013-12-31_tikslinta_20140224_GALUTINE.pdf.
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The procedures of program changing, supplementing, and updating have been provided in the program as well as responsible persons. Those who are concerned may submit their proposals for the renewal of the program provisions throughout the program period.
The program shall be compatible with the strategic action plans of state institutions involved in the execution program. The program determines the funding source for the implementation of the program. In preparing the program for a new period the efficiency and (or) impact assessment of the previous program shall be carried out. The program establishes the procedure for evaluating the efficiency of the program, which is used to evaluate whether the program actions eliminated or reduced the determined risk factors of corruption, whether there is a need to establish new actions for the elimination and reduction of these corruption risks.
8.3. Action Plan of the Corruption Prevention Program
This action plan is assigned to implement the tasks set out in the program, eliminate the problems and achieve the objectives.
The action plan includes the following:1) the actions of Lithuanian national program of anti-corruption, the executor is state or
municipal institution preparing the program. It is noteworthy that considering the specific activity of state or municipal institution in the specificity and (or) the results of the analysis of corruption risk carried out by Special Investigation Service of the Republic of Lithuania these actions may be revised or supplemented, detailing their enforcement in the action plan;
2) the actions meant to eliminate or reduce the probability of corruption factors identified in the procedure of corruption likelihood;
3) the actions that have been proposed to the state or municipal institution by Special Investigation Service of the Republic of Lithuania following the analysis or corruption risk in the institution;
4) other actions of corruption prevention considered necessary by the state or municipal institution.
The activity (function) assigned to the competence of state or municipal institution should not be included in the action plan as an action of corruption prevention, for example ”To submit a reasoned conclusion to the Special Investigation Service of the Republic of Lithuania on the activities where there is a probability of corruption manifestation” and so on. The plan of actions may introduce the actions to implement this activity (function), for example, the tool “To prepare and approve the description to determine the probability of corruption manifestation”, as well as establish procedures and time limits in which should be followed by relevant state or municipal institutions while providing information on the determination of the probability of corruption manifestation and so on.
The action plans of state and municipal institutions establish the actions for all possible activities of these institutions, which might be prone to the factors 150of corruption. The action plan may be presented in a tabular form. The action plan table can consist of the following sections:
1) Purpose.
150 If necessary the institutions subbordinate to certain ministries as well as institutions controlled by state and municipal authorities or companies, as well as public-entities, the establisher of which is a municipal institution or authority shall be assigned as the executors of action plans and shall detail these actions in their action plans.
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2) Criteria of objective result.3) Tasks.4) Number of actions.5) Problem.6) Name of action.7) Executor (s) of the action.8) Deadline for action completion.9) The assessment criteria of expected results, such as:
Objective - to increase the transparency, reduce and eliminate corruption in field x.Criteria of objective results:1. Based on the survey data the number of persons, who paid informally for the services
obtained in a state of municipal institution, decreased 12 %.2. Based on the survey data the number of persons, who paid informally for the services
obtained in a state of municipal institution and thought that informal payment improved the quality of services, decreased 20 %.
Persons under the informal survey data have paid the state or municipal agency for the services and those who believe that informal payments improved the quality of service, a decrease of 20 percent.
1 task. To reduce the assumptions of corruption by clarifying the procedure of regulation and service provision.No. Problem Action Executor (s) Deadline Assessment
criteria of the expected result
1 Employees in state or municipal institution lack information on dealing with corruption-related offenses.
To develop the rules of conduction for the employees of a state or municipal institution upon facing the corruption-related offenses.
Head of department Y of state X or municipality institution Name Surname
November 2016
The rules of conduction for the employees of a state or municipal institution upon facing the corruption-related offenses have been developed. The employees of state institutions have been instructed how to deal with the corruption-related offenses.
The actions in the plan have been grouped based on the actions set out in the program goals and objectives.
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When determining the criteria of objective result the positive changing has been defined, the benefit of which will be received by the society and all other direct beneficiaries of the program after the implementation of the program. The executor (s) of the action may be a state or municipal institution (s), its structural units or responsible persons. In case when multiple executors of the action are specified, the first person in list of executors shall be considered responsible for the coordination of the action. Other executors shall support the implementation of the action.
The deadline for action implementation shall coincide with the implementation of the beginning and end of the program. If the continuous action is specified, the phases of its deadline (semesters, quarters, months) shall be specified. The assessment criteria of each phase shall be defined.
The assessment criteria of the expected results of the action must be clear, objective, calculated and measurable so that the effectiveness of preventive activity shall be assessed properly.
A state institution may independently prepare the description of the procedure of program implementation. While approving the program, describing the procedure of publication of the program and information on the program, related to the implementation and assessment of the program, in the program draft the provisions of paragraph 43 of the program of national anti-corruption of the Republic of Lithuania 2015-2025 approved by the resolution No. XII-1537 of 10 March, 2015 (hereinafter referred to as PNAC) must be considered.151
8.4. Most Common Mistakes in Corruption Prevention Programs and Action Plans1) Although the state or municipal institution names one of the program section
"Environmental analysis", but the environmental analysis is usually limited to the naming of general corruption assumptions. The program does not reflect the results of the environmental analysis. Different internal and external factors have been assessed in respect of corruption risk. The data of the related sociological surveys has not been provided. The index of employees’ tolerance for the corruption has not been determined. The information received while performing the audit on the assessment of corruption risk management, the procedure of the determination of the probability of corruption manifestation or collected and evaluated information on corruption-related offenses or malfeasances have not been provided.
2) During the development of the program the efficiency of previous anti-corruption policy implemented by the state or municipal institution has not been evaluated. Thus, it is not clear which anti-corruption actions implemented have been efficient and which did not provide any positive results.
3) Often there is lack of involvement of the institutions subordinate to state or municipal authorities or governmental or non-governmental organizations in the implementation of program and its actions plan.
4) Often the objectives formulated in the program are abstract, declarative, formulated as the purpose, for example “striving for effective prevention of corruption in the pursuit of prevention actions and the general anti-corruption culture education”, “to develop an anti-corruption culture in the institution "and so on. Therefore, there is doubt that sufficiently effective actions have been determined to achieve such objectives.
5) The assessment criteria for the objectives and tasks of the program are not sufficiently precise and clear, for example “stronger public support to particular anti-corruption initiatives”, “the growing intolerance for corruption”, “increasing public confidence in the institution”, and so on.
151 Projects of programs, approved programs and their public reports of fight against corruption in statutory, national, and municipal institutions must be announced publicly, in the information system of the Seimas’ legislation and websites of the institutions carrying out the programs.
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Presumably, it would be appropriate to provide clearly defined and measurable indicators of the improvement and create specific intellectual products.
6) The program insufficiently elaborates the mechanism of program administration (Implementation of the program, financing, monitoring, assessment, control, and reporting), as these processes are not sufficiently disclosed in the program.
7) The program does not provide the possibility for society and interested persons to make proposals on the update of the provisions of the program throughout the program period.
8) Most frequently the structure of action plan shall be improved, since there is no determined objective, criteria of objective result as well as the determined actions do not highlight the problems. It is noteworthy that the specific positive effect the benefit of which will be achieved by the society as well as other beneficiaries should be defined in determining the criterion of the objective result.
9) The assessment criteria of the expected result of individual actions in the action plan is defined by "numbers" like "number of x institutions, which introduced anti-corruption training”, “number of interviews”, “number of published reports on corruption prevention actions”, “number of organized trainings”, and so on. However, the boundary number, which will be the threshold to efficiently implement the actions defined in the program as well as the possible benefit are not determined.
10) Quite often the actions defined in the action plan are the functions of the state institutions determined by legislation of the Republic of Lithuania, the performance of which has not been defined in detail and they should not be included in the action plan as an action for corruption prevention, such as "to identify the probability of corruption in x institution”, “to carry out the anti-corruption assessment of legislation drafts under the law” etc. The plan of actions may include the actions necessary to perform these functions, for example the tool “to prepare and approve the determination description of the probability of corruption manifestation”. It also should establish the procedure and deadlines, which should be followed by the state institutions assigned to relevant minister when providing any information to relevant ministry on the determination of the probability of corruption manifestation.
11) In determining the probability of corruption manifestation, the state or municipal institution determines the areas of activity which are prone to corruption, and provide actions to manage those activities. However, the state or municipal institutions do not include such determined actions in the action plan of the program.
It is noteworthy that although the institutions do not fully meet all the requirements and recommendations the good practice can be considered the programs of anti-corruption and the plans of their implementation:
- Anti-Corruption program of the Ministry of Culture of the Republic of Lithuania152;- Anti-Corruption program of the Ministry of Health of the Republic of Lithuanian153;- Anti-Corruption program of the Ministry of Economy of the Republic of Lithuania154;- Anti-Corruption program of the State Tax Inspectorate under the Ministry of Finance155.
152 Internet access: https://www.e-tar.lt/portal/lt/legalAct/cf87c5a01bf411e586708c6593c243ce. 153 Internet access: https://www.e-tar.lt/portal/lt/legalAct/63683d30a27411e58fd1fc0b9bba68a7/qsTQxQgnml. 154 Internet access: http://ukmin.lrv.lt/lt/administracine-informacija/korupcijos-prevencija/korupcijos-prevencijos-programos.155 Internet access: https://www.e-tar.lt/portal/lt/legalAct/52aceb90f80411e5a52397090a2fa158.
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9. GUIDELINES FOR AN ANTI-CORRUPTION ASSESSMENT OF DRAFT-LAWS
9.1. Concept and Meaning of an Anti-Corruption Assessment of Draft-Laws
An Anti-Corruption assessment of draft-laws is an assessment of drafts conducted in resolution to determine deficiencies of an anticipatory legal regulation that may create conditions for corruption to manifest as well as unjust, improper, non-transparent or biased actions.156 In a broad sense, the Anti-Corruption assessment of drafts may be considered a systematic analysis of draft-law texts conducted in resolution to determine places in drafts that lack legal regulation and predict the practice of their non-objective application.
From the point of view of an Anti-Corruption assessment, corruption must be understood in a broad sense:
• as an abuse of power and opportunities offered by an employment; • as a possibility to profit from the government; • as a possibility to act unjustly, improperly, non-transparently or non-objectively.A first-time assessor should know a legal act is “designed to be imperfect” in most cases
since it is not only a set of compulsory rules in a particular case but also a result of a compromise (of a political agreement, beliefs, ideologies, social classes, world-view, etc.). Furthermore, the assessment depends greatly on the competence, legal conscience, assessor’s lack of prior personal interest in one type or another of regulation results; therefore, a draft should be viewed as a mechanism of legal regulation that must in all intents be aimed at the protection of public interests and benefit of the state.
The importance of an Anti-Corruption assessment:• it neutralizes the risk of corruption manifestations during the first stage of a legal
regulation development in state regulated areas;• it shapes the law-making practice based on systemic provisions of intolerance against
corruption;• it identifies socially, economically, and legally sensitive areas where manifestations
of corrupt behaviour may occur.
9.2. Legal Acts Establishing an Obligation to Conduct an Anti-Corruption Assessment
Based on the Article 135 of the Statute of the Seimas of the Republic of Lithuania, the explanatory note of a draft-law being submitted to the Seimas must include the effect the law would have on the crime and corruption.157
Article 8 of the Law on the Prevention of Corruption of the Republic of Lithuania states that an Anti-Corruption assessment of a draft-law is to be conducted if the legal act being drafted is intended to regulate certain public relations.158 It must be noted that the list of public relations is not exhaustive. In each instance, the institution that prepared the draft-law should address the issue of the impact of anticipated legal regulation on the level of corruption if the prepared draft-law is intended to regulate public relations that are not established in Paragraphs 1-17 of Article 8. For instance, it is recommended to assess draft-laws related to the operation of various funds financed
156 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.675D40171087/bQOuLyXnJR157 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.123B53F30F70/JQcxJcZKJI.158 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.4DBDE27621A2/TAIS_436086.
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by state or municipal budgets, monitoring and funding of political parties, legal regulation of educational, sports, cultural activities, etc.
Article 16 of the Law on Legislative Framework of the Republic of Lithuania, which came into force on 1 January, 2014, establishes that an assessment of the impact of an envisaged legal regulation on the level of corruption (an Anti-Corruption assessment of legal acts or their drafts) shall be conducted in the cases specified in the Law on the Prevention of Corruption of the Republic of Lithuania. The Government shall establish this assessment procedure.159
On 12 March, 2014, the Government of the Republic of Lithuania adopted the resolution No. 243160 that enacted the Rules of Anti-Corruption Assessment of Draft-Laws. These rules establish the procedures on how all state or municipal institutions that prepare draft-laws must conduct an Anti-Corruption assessment of draft-laws.
The special investigation service of the Republic of Lithuania that is authorized to conduct an Anti-Corruption assessment of draft-laws as well as existing legal acts, operates in accordance with the Law on the Prevention of Corruption as well as the Procedure Description of Anti-Corruption Assessment of Legal Acts or their Drafts by the Special Investigation Service of the Republic of Lithuania.161
9.3. Selection of Draft-Laws for an Assessment
It is important to note that Article 8 of the Law on the Prevention of Corruption of the Republic of Lithuania establishes that an Anti-Corruption assessment of a draft-law is to be performed if the legal act being drafted is intended to regulate certain public relations, for instance, the ones related to a procurement of goods or services or granting of a concession. In the Rules of Anti-Corruption Assessment of Draft-Laws, it is established that the Rules of Anti-Corruption Assessment of Draft-Law establish the procedure of an Anti-Corruption assessment of normative draft-laws that is conducted in cases specified in Paragraph 1 Article 8 of the Law on Prevention of Corruption by civil servants or employees under an employment contract of state or municipal institutions that prepare draft-laws. Therefore, state and municipal institutions must only conduct Anti-Corruption assessments of normative draft-laws or drafts that regulate public relations (to all intents and purposes these two categories of draft-laws are synonymous). Definitions of normative legal acts can be found in legal acts regulating administrative legal relationship, and additional explanations may be encountered in legal precedents.
1) The Law of Republic of Lithuania on Public Administration define that a normative administrative act is a legal act specifying rules of conduct intended for individually unspecified group of persons.162 The Law of the Republic of Lithuania on Administrative Proceedings establishes that a normative legal act is a law, administrative or other legal act, specifying the rules of conduct for a group of entities not specified by individual characteristics.163
2) Legal precedents in the Lithuanian Supreme Administrative court also disclose what legal act is considered to be normative, for instance, in the summary164 of legal precedents in the
159 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.B4FA4C56B8D5/DLuLKPCpos.160 Internet access: https://www.e-tar.lt/portal/lt/legalAct/f5fb2df0b02311e39a619f61bf81ad0a.161 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.675D40171087/bQOuLyXnJR.162 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.0BDFFD850A66/OCQvcNCBEt.163 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.67B5099C5848/mNSgZhpplH.164 Internet access: http://www.lvat.lt/download/1575/23_apibendrinimas.pdf,http://www.lvat.lt/lt/teismu-praktika/teismu-praktikos-apibendrinimai.html.
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Lithuanian Supreme Administrative Court, that employed norms of the Law on Administrative Proceedings, and individual rulings165.
As a generalization, it may be stated that features characteristic of a normative legal act is the following:
1) it determines compulsory rules of conduct intended for a group of entities not specified by individual characteristics, universally binding,
2) a legal act is adopted by a public administrative entity that is empowered to put into practice the executive power or separate executive functions, i.e. in an instance, by a legal act of a higher power, a state or municipal institution is granted the power to adopt a particular legal norm. A legal norm is not adopted at the initiative of only a state or municipal institution.
From the normative and Anti-Corruption point of view, examples of draft-laws requiring an assessment might be the following:
A project of a procedure description regarding the transfer of state assets for the management, use and disposal by the right of trust;
A project of the rules of long-term lease of tangible assets; A project of a procedure of a sale of unnecessary or unsuitable for use assets by public
auctions of goods; projects of procedure description for the organization of various tenders; A project of the organizational rules for events; A project of a procedure description for obtaining a liquor license; A project of a procedure description for the management and adjustment of lists of
families and individuals with the right to financial support for leasing; A project of a procedure description for obtaining an oil-product trader’s license; A project of procedure description for obtaining a license for road transport activities; draft-laws regulating the distribution and registration of individuals, items, quotas
employing state informational systems and registers; drafts of legal acts that organize the monitoring of certain activities; There is no obligation to conduct an Anti-Corruption assessment of draft-laws that are
intended to be applied once for a certain individual or a group of entities specified by individual characteristics. The examples of individual drafts not to be assessed might be the following:
a draft of a resolution, resolution, or other legal act on issuance of a bonus or an additional pay for a certain individual166;
a draft of a resolution, resolution, or other legal act on individual composition of a committee167;
a draft of a resolution, resolution, or other legal act on restructuring a certain facility; a draft of a resolution, resolution, or other legal act on the arrangement of working
hours; a draft of a resolution, resolution, or other legal act on the description of a position;
165 Internet access: http://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=2346b583-aadb-488a-90dc-baacf05ab74d; http://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=277cb58a-2523-4861-8703-b96badb911ce.166 However, draft-laws regulating procedures, rules, etc. for the issuance of bonuses and additional payments, etc. should be assessed.167 However, draft-laws regulating the procedure of establishing a committee, the selection of members, qualification requirements, number of terms, etc., the operation procedure of a committee, regulations, etc. should be assessed.
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a draft of a resolution, resolution, or other legal act based on which a certain facility is to be established;
a draft of a resolution, resolution or other legal act establishing transfer of a property; a draft of a resolution, resolution or other legal act on discarding or liquidating of a
property; a draft of a resolution, resolution, or other legal act on purchase of a property; a draft of a resolution, resolution, or other legal act on establishing the routes of
regular local-service buses; a draft of a resolution, resolution, or other legal act on establishing certain property tax
rates and exemptions; a draft of a resolution, resolution or other legal act on the detection and elimination of
settlements, provision or change of names of settlements.Most aforementioned draft-laws may be considered as normative legal acts if therein
additional paragraphs, conditions, and rules are established. Therefore, this kind of a draft-law should be assessed from the point of view of Anti-Corruption in resolution to establish whether the legal regulation in question possesses corruption risk factors. The establishment of unequal conditions for entities operating in a certain area is a corruption risk factor.
Since internal legal acts are not usually applied only to an individually defined group of persons, it should be noted that an Anti-Corruption assessment of them should be made. Internal administrative draft-laws related to the maintenance of economic entities, the acceptance of individuals for an employment to certain positions, etc. should be assessed.
It is inexpedient to assess projects of various programs, conceptions, and plans, since only suppositions, ideas of future legal acts are most commonly set out therein; therefore, it is considered to be more expedient to assess program projects from the legal, economic, etc. point of view. However, there are such programs, conceptions and plans that aid in creating legal norms; hence, the necessity of an Anti-Corruption assessment of a legal act should not be judged only based on the name of the legal act, firstly, its content must be revised. It is important to note that in certain instances there is little difference between a normative and individual legal act, for example, the supreme court of Lithuania stated in the ruling168 No. AS756-533/2013 adopted on 31 July, 2013 that the special plan of protection of immovable cultural heritage of S. Darius and S. Girėnas airport with remnants of the equipment is considered to be a normative legal act; therefore, in each instance it must be assessed whether a draft-law is normative or not. It is also inexpedient to assess formal revisions even though they are of normative draft-laws, if the essence of a legal norm is not altered.
The Special Investigation Service performs an Anti-Corruption assessment of existing normative legal acts; however, a state or municipal institution itself may initiate an Anti-Corruption assessment of existing legal acts of its field of competence.
9.4. Performance of an Anti-Corruption Assessment of Draft-Laws
One of the main rules defined by the Law on the Prevention of Corruption of the Republic of Lithuania states that the initial Anti-Corruption assessment of a draft-law shall be performed by the entity that prepared the draft, i.e. the institution that prepared the draft. If several institutions
168 Internet access: http://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=277cb58a-2523-4861-8703-b96badb911ce.
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participated in the preparation of a draft-law, it is suggested for the Anti-Corruption assessment to be performed by the institution to whose field of competence the draft is mostly attributable to, or the institution that is named first in the draft-law, or the institution that initiated the preparation of the draft, in accordance with the agreement made by the institutions, etc.
In resolution to avoid possible bias, it is established in the Rules of Anti-Corruption Assessment of Draft-Laws that an assessor of a draft-law cannot be assigned to perform an Anti-Corruption assessment of a draft-law drafted by the assessor themselves. It means that no less than two individuals must participate in the process of the preparation and assessment of a draft-law.
In resolution to achieve a high-quality Anti-Corruption assessment of draft-laws, it is recommended to appoint an individual with sufficient knowledge, competence, and skills in the field of legal relationship regulated by the assessed draft to be an assessor; these individuals must beforehand be uninterested in the future legal regulation. It can be a civil servant or an employee of a specific department, e.g. the department of Legislation, Prevention of Corruption, etc. that continuously assess draft-laws, or civil servants or employees appointed only to assess a specific draft-law. An appointment of an individual who works in a field that is to be regulated by the prepared draft to be an assessor is a good practice, e.g. a financier (or the request for assistance from such an individual). If required169 more than one individual may be appointed to assess a draft-law. The head of an institution is responsible for the appointment of suitable assessors of draft-laws.
The following stages of an Anti-Corruption assessment may be distinguished:1. The analysis of a draft-law being assessed as well as related existing legal acts or draft-
laws that is performed during the detailed familiarization with the content of the draft and accompanying or related documents, legal acts.170
2. Consulting the legislator(s) that prepared the draft, if necessary. 3. If required, contacting other department of the institution in resolution to receive
additional information (assistance). 4. Completion of a note of an Anti-Corruption assessment of a draft-law.5. Publication of a note of an Anti-Corruption assessment of a draft-law.In resolution for an assessor of a draft-law to comprehend the revisions of a legal
regulation anticipated in a draft-law, it is necessary to become acquainted with the explanatory note of a draft-law, an accompanying document and other documents, to assess the expedience of the legal regulation anticipated by the draft-law, to identify indicated objective issues (whether revisions of a legal regulation are currently important, whether they can be disclosed through public information sources, by entities directly applying the draft-law, the legislators that prepared the draft). After the objectives of a draft-law are determined, it is necessary to analyse the draft-law itself: revisions of prospective legal regulation are best reflected by a reference option of a draft-law.
In certain instances, the absence of an explanatory note or a reference option, when an existing legal act is revised, may be considered as a corruption risk factor, because certain shortcomings of a draft-law may be sought to be concealed in such a manner. During the analysis of
169 E.g. a large-volume draft-law, a draft prepared by a few institutions, etc.170 It is important to direct attention to the hierarchy of legal acts (whether the power of a legal act is sufficient to regulate a legal relationship, whether it duplicates, contradicts other legal acts, should it be assessed systematically with other legal acts or drafts), the structure of a draft, consistency of outlined provisions (evaluate the aim of a draft, whether the provisions are coherent, concepts, definitions are clear, whether they are defined in other legal acts, are they repeated, whether procedures established by legal acts are possible to implement), etc.
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a draft-law and enclosed documents, the attention must be paid to whether the declared objectives of the draft correspond to the prospective legal regulation. Objectives (or their parts) declared in an explanatory note frequently do not correspond to the revisions of a legal regulation. In some instances, it might be vice versa: specific objectives may be introduced, whereas legal revisions, based on their content, are to include significantly wider consequences of the legal regulation revision; a part of revisions is unfounded. In some instances, at this stage, it is evident that the elimination or inclusion of certain provisions would create a legally uncertain situation (i.e. it would remain unclear how certain provisions of the legal act are to be implemented) or essentially new (possibly unpredictable) legal regulation.
9.4.1. Issues (Criteria) of an Anti-Corruption Assessment of Draft-Laws
Prior to the analysis of an assessed draft-law, it is recommended to revise the criteria (issues) that are to be given most of the attention during the analysis of draft-laws, and assess the draft accordingly. The aforementioned criteria are set out in the annex of the Rules of Anti-Corruption Assessment of Draft-Laws: A note of an Anti-Corruption Assessment of a Draft-Law.171. The list is not exhaustive, therefore, the criterion 19 enables an assessor of draft-laws to indicate other shortcomings of a draft related to the anti-corruption.
Hereinafter, some examples of how a note of an Anti-Corruption Assessment of a Draft-Law could be filled in are provided: E. g. the criterion 1 should be more widely commented, if a draft-law assessor determines that the draft-law created exceptional or unequal conditions for entities that are related to the implementation of the draft. E.g. it is not certain why the criterion of 600 thousand m3 of effluent per year is established in the Draft, it creates exceptional conditions for companies complying to them and eliminates the possibility for companies that clean the effluent by employing own resources, but in smaller quantities than those specified in the Draft to lay a claim for a compensatory negotiated effluent treatment cost. Therefore, this will create exceptional operating conditions only for those market participants who meet the criterion for effluent. Moreover, exceptional conditions are applied to a company regarding existing users of a public effluent treatment system, since lower prices would be applied. The creation of exceptional conditions for an individual or a group or individuals is a corruption risk factor.
It is necessary to make a note if no flawed provisions related to the Anti-Corruption are established in a draft-law, e. g. conditions that would create exceptional or unequal conditions for certain entities. It is sufficient to denote: “the issue is not regulated by the draft-law”, “no exceptional or unequal conditions are created for entities”, “does not create”172 and so forth.
Perhaps the most common type of Anti-Corruption comment received during the assessment of draft-laws is related to loopholes that allow ambiguous interpretation and application of a legal act (the criterion 2 of a note of an Anti-Corruption Assessment of a Draft-Law). For example, the expression “may be terminated” employed in the draft is ambiguous and flawed, because it is not clear in what circumstances and to whom will be given the right to decide not to terminate the contract, notwithstanding that the supplier does not fulfil the quality requirement for goods, services, or work. Furthermore, the expressions set out in the draft (” the decision of quality control institutions”; “the decision of recognized competent agencies”) are unclear. It is unclear 171 Internet access: https://www.e-tar.lt/portal/lt/legalAct/f5fb2df0b02311e39a619f61bf81ad0a.172 It should be noted that statements may be employed for all the criteria if no flawed provisions related to the Anti-Corruption are determined.
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how many and which quality control institutions must decide whether the supplier has made a quality violation related to supplied goods, services or performed work; who acknowledges that an agency has relevant competence, etc.
There are situations when a draft-law does not distinguish between rights and obligations of an individual and an entity (the criterion 4 of a note of an Anti-Corruption Assessment of a Draft-Law). E. g. norms of paragraph 10 of the assessed draft, that define the entity’s rights and obligations, have shortcomings related to the anti-corruption, because it is unclear what the entity may decide to perform, and what the entity must perform. It can be stated that the non-distinction of rights and obligations creates the possibility to interpret the entity’s competence in one’s sole discretion. It is a corruption risk factor. It is recommended to set forth rights and obligations separately.
If the assessor of a draft-law determines instances of non-disclosure of certain unjustified decisions, the justification of the criterion 7 of a note of an Anti-Corruption Assessment of a Draft-law could be the following: Decisions on the acceptance, registration procedure of the contenders compliant (non-compliant) with the conditions of the tender that won the tender are determined in the Draft, but no disclosure of decisions concerning the tender results is included.
The establishment of a committee, number of terms, duration, etc. should be established in legal acts regulating work of certain committees. If the aforementioned issues are entirely unregulated in the assessed draft-law or other related legal acts, the justification of the criterion 9 of a note of an Anti-Corruption Assessment of a Draft-Law could be the following: the term of a committee member shall not be indefinite, as well as members of the public and other interested parties shall have the right to know under what competence and qualification requirements (education, work experience, etc.) certain individuals are selected as members of a committee. Therefore, it is advisable to establish a mandatory exchange of the committee members as well as the qualification requirements for contenders for the committee membership in the Draft or in the provisions of the committee.
If no discrepancies on regulatory decision-making terms are encountered, the assessor of a draft-law may denote the following, next to the criterion 12 of a note of an Anti-Corruption Assessment of a Draft-Law: The term that must determine the time between sending the notification on the participation of tender contenders indicated in paragraph 14 of the Draft and when the public procurement must be organized is not specified.
It should be noted that an assessor should not try to artificially establish Anti-Corruption notes in every draft-law. The absence of identified notes does not necessarily signify that the Anti-Corruption assessment of a draft is performed superficially, formally or that the assessor of the draft is incompetent. It may simply mean that the draft-law has no shortcomings related to the anti-corruption.
9.5. Completion of a Note of an Anti-Corruption Assessment of a Draft-law
An assessor of a draft-law submits it to the direct drafter, after providing comments of Anti-Corruption character and filling in a note of an Anti-Corruption Assessment of a Draft-Law. Having assessed the shortcomings of the draft-law that were identified by the assessor from the Anti-Corruption point of view, the direct drafter revises the draft in accordance with the notes and suggestions provided by the assessor of the draft-law, and (or), in a corresponding column in the
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note of an Anti-Corruption Assessment of a Draft-Law, presents own arguments on the notes and suggestions provided by the assessor of the draft-law that the legislator disagrees with, furthermore, the legislator provides the assessor with a note of the Anti-Corruption assessment and a revised draft-law. It is common that the assessor of a draft-law does not analyse related legal acts or their drafts or does not consult the drafter and identifies a certain shortcoming the solution of which is established in another legal act or its draft. In such an instance, the legislator could fill in the note of an Anti-Corruption Assessment of a Draft-Law in the following manner: It is established in paragraph 17 of the provisions on the public procurement for the position of the chief physician of the public institution of primary health care centre, that the tender shall take place 30 calendar days after the last day of the reception of documents.
If the legislator agrees with the note provided by the assessor of the draft-law, the legislator revises the draft and indicates the essence of the revision: The note has been considered. New word phrasing is set in the draft: “on the day of the ascertainment of conditions or, if the considered day is not business day, on the next business day”.
If the legislator disagrees with the note(s) provided by the assessor of the draft-law, the legislator specifies valid motives for disagreeing.
After the legislator comments the identified Anti-Corruption shortcomings, the assessor of the draft-law notes in a corresponding column of the note of an Anti-Corruption Assessment of a Draft-Law whether revisions made by the drafter are sufficient for the reduction of corruption manifestation risk (“Acceptable”).
If, in the opinion of the assessor of draft-laws, the revisions are not sufficient (“Unacceptable”), the provisions and their specific assessment criteria are listed by the assessor of the draft in the preamble of the note of an Anti-Corruption Assessment of a Draft-law. Such a filled in note of an Anti-Corruption Assessment of a Draft-Law together with the draft-law are given to the head of the institution or the authorized person that makes decisions on the improvement, reception, sending for coordination or provision of the draft to the entity that is to receive the legal act. A head of the institution or the authorized person decides whether to sign the draft or assign improving the draft to the legislator.
In the instance of the assessor of a draft-law not providing any Anti-Corruption notes, a note of an Anti-Corruption Assessment of a Draft-Law is filled in. It shall be signed by the assessor of a draft-law and the legislator, the note shall be submitted to the head of the institution or the authorized person.
If the draft-law is submitted to other entities receiving the legal act, the note of an Anti-Corruption Assessment of a Draft-Law shall be signed by the head of the institution submitting the draft-law or the authorized person.
9.6. The Disclosure of the Note of an Anti-Corruption Assessment of a Draft-Law
The note of an Anti-Corruption Assessment of a Draft-Law, signed and registered in accordance with the procedure prescribed by the institution, is recommended to be published on the Legislative Information System (hereinafter referred to as LIS) on the website https://tais.lrs.lt no later than one business day after signing and registering. In resolution to publish the conclusions on LAIS, the assessor (the legislator may also publish them) must have a LIS login and password, that can be obtained after contacting the Chancellery of the Seimas of the Republic of Lithuania by e-mail [email protected].
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More information on how to publish a signed and registered note of an Anti-Corruption Assessment of a Draft-Law may be found in Annex 3 of the Guide of Anti-Corruption Environment (16.3 The disclosure of the note of an Anti-Corruption Assessment of a Draft-Law).
Examples of notes of an Anti-Corruption Assessment of a Draft-Law and their excerpts filled in by state or municipal institutions may be found in Annex 4 of the Guide of Anti-Corruption Environment (16.4 Examples of Anti-Corruption assessments of draft-laws of state or municipal institutions).
Excerpts from Anti-Corruption assessments of legal acts or their drafts performed by the Special Investigation Service of the Republic of Lithuania may be found in Annex 5 of the Guide of Anti-Corruption Environment (16.5 Examples of Anti-Corruption assessments of legal acts or their drafts performed by the Special Investigation Service).
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10. ANTI-CORRUPTION COMMISSIONS AND PERSONS RESPONSIBLE FOR THE CORRUPTION PREVENTION
10.1. Role of the Head of a State or Municipal Institution in the Corruption Prevention
A special role in a fight against corruption is reserved for the institution management; their everyday example, active involvement and the commitment not to tolerate even smallest manifestations of corruption ensure effective and consistent implementation of corruption prevention actions. The behaviour of highest-ranking managers is important in forming the approach to Anti-Corruption of middle managers, and through them all the other employees of the institution.
Considering the aforementioned, managers should not be limited to a formal approach to the prevention of corruption, and they should not be merely passive observers of this activity. The managers should employ their personal example and continually foster the highest standards of conduct and their Anti-Corruption position must be clear to all employees of the institution.
10.2. Departments or Persons Responsible for the Prevention of Corruption and their Functions
In resolution to implement the actions for the prevention of corruption, departments responsible for the corruption prevention and control may be established, or individuals assigned to perform this function may be appointed.
In resolution to create an effective corruption prevention system while ensuring the rational and efficient use of funds and human resources in small Public-sector institutions, the department being established or persons being appointed, in addition to the implementation of corruption prevention actions, may be assigned to maintain the control over the compliance with professional ethics, i.e. standards of conduct (to ensure the prevention of institutional ethics violations, to monitor the declaration process of private interests, to perform the investigation of institutional ethics violations, etc.).
The decision on the expediency of the appointment of persons or the establishment of the departments as well as their area of responsibility shall be made by the head of the state or municipal institution, taking into account the structure of the institution and particular characteristics of its focus area, possibilities for corruption manifestations, areas where a high probability of corruption manifestations exists and the approved appropriations for the institution.
The following functions shall be established in legal acts regulating the work of departments or persons that perform the corruption prevention and control173:
1) to assess institution work areas where a high probability of corruption manifestations exists in accordance with the procedure laid down in legal acts;
2) to prepare projects for the Anti-Corruption program for the whole institution and its branches, as well as their revision projects;
173 Functions are established in the Rules of the Operation and Cooperation between Departments and Persons in State and Municipal Institutions that Perform Corruption Prevention and Control, approved by the resolution No. 607 of the Government of the Republic of Lithuania on 19 May, 2014, https://www.etar.lt/portal/lt/legalAct/TAR.BC48C6C9AEF4.
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3) to provide information to registers of civil servants and legal entities about persons employed in the institution on the grounds established in the Law on the Prevention of Corruption of the Republic of Lithuania;
4) to analyse and, if necessary and in agreement with the head, make identified corruption facts available for other employees of state or municipal institutions and publicize in the media in accordance with the procedure prescribed by legal acts;
5) to submit proposals to the head of the institution on corruption prevention and control intended to prevent recurrence of identified corruption facts;
6) to work in collaboration and exchange information necessary for corruption prevention and control with other structural departments of the institution, other state and municipal institutions and their employees performing corruption prevention and control;
7) to carry out other activities related to corruption prevention, control, and investigation of corruption-related violations in a state or municipal institution;
If persons or a department performing corruption prevention or control in the institution are also authorized to monitor the compliance with professional ethics (standards of conduct), the following functions are established in addition to the aforementioned ones in legal acts regulating their operation174:
1) to control (monitor) the implementation of the Law on the Adjustment of Public and Private Interests in the Public Service and the Law on Public Service, the Code of Conduct for State Politicians, Ethical Rules for Public Servants, provisions of ethical code (of conduct) of the institution, other legal acts regulating professional ethics (conduct), decisions, recommendations and resolutions made by the Chief Official Ethics Commission in the institution;
2) to ensure that persons employed by the institution provide declarations of private interests in an appropriate and timely manner, and heads of structural departments familiarize themselves with them;
3) to check and analyse data in declarations, monitor them and, if a possible, potential, or actual instance of risk of a conflict of interest occurs, promptly inform the head of the institution;
4) to investigate violations of provisions of the Adjustment of Public and Private Interests in the Law on Public Service and other legal acts within the jurisdiction of the institution that regulate norms of professional ethics (conduct);
5) to inform the Chief Official Ethics Commission and other interested persons and institutions about possible issues related to violations of norms of professional ethics (conduct) intended to be considered, conclusions and decisions adopted regarding these issues;
6) to participate in institution committee established due to permissions for civil servants to have another job;
7) to analyse identified violations of professional ethics (conduct) and submit proposals on the prevention of such occurrences to the head of the institution;
8) to cooperate with the Chief Official Ethics Commission, other state and municipal institutions on the issues regarding the implementation of provisions of professional ethics (conduct);
The main activities of the departments and persons performing corruption prevention and control:
174 Functions are set out in a Standard Job Description of a Compliance Officer (authorized representative of the head of the Institution) approved by the Chief Official Ethics Commission by the decision No. KS-35 on 21 June , 2011.
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1. After the Special Investigation Service performs an analysis from the Anti-Corruption point of view (hereinafter referred to as corruption risk assessment) and submits motivated conclusions to the head of the institution, the departments and persons performing corruption prevention and control submit proposals on means and specific actions to ensure the corruption prevention to the head of the institution;
2. After the Special Investigation Service performs a corruption risk assessment and proposes Anti-Corruption programs for the whole institution or its branches, the departments and persons performing corruption prevention and control prepare the specified programs in accordance with the procedure prescribed by the Law on the Prevention of Corruption of the Republic of Lithuania. Anti-Corruption programs for the whole institution or its branches are prepared while considering data gathered during the corruption risk assessment, the existing corruption prevention practice, proposals, and methodological recommendations provided by the Special Investigation Service. During the preparation of Anti-Corruption programs, the departments and persons performing corruption prevention and control consider corruption facts identified in a corresponding institution. During the analysis of the identified corruption fact, the circumstances are considered, i.e. time, location, the type of action of the person who committed a corrupt activity, incentives of the actions (lack of actions), what interests were achieved by the corrupt actions, what provisions of legal acts were violated, whether they could be improved. After assessing these circumstances, departments and persons performing corruption prevention and control submit motivated proposals on how to avoid corrupt actions in the future.
3. Departments and persons performing corruption prevention and control monitor and coordinate the implementation of institutional programs in accordance with the prescribed procedure and conditions, submit proposals to heads of structural departments of the institution and state and municipal institutions, summarize activities of separate structural departments of the institution during the implementation of Anti-Corruption programs for the whole institution or its branches, submit proposals for their adjustment if necessary.
4. By controlling and coordinating the implementation of institutional Anti-Corruption programs department and persons in the institution may submit proposals on improvement of Anti-Corruption programs and legal acts intended to combat corruption and prevent its manifestations from occurrence to the Special Investigation Service in accordance with the established procedure and conditions.
5. By their own initiative, by a request from employees, by the resolution of a head of an institution in accordance with the established conditions and the procedure, departments and persons performing corruption prevention and control conduct Anti-Corruption education, focus employees on complying with requirements prescribed by conduct codes, instruct and consult them on how to avoid corruption manifestations, or conflict of interest in their work, indicate how to act when corrupt actions are encountered.
6. After receiving information on corrupt activity with features of criminal behaviour, departments and persons performing corruption prevention and control immediately inform the head of an institution and the Special Investigation Service in accordance with conditions and the procedure established by the institution.
Departments and persons performing corruption prevention and control may participate in an Anti-Corruption assessment of prepared legal acts in accordance with conditions and the procedure established by the institution.
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10.3. Cooperation of Departments and Persons Performing Corruption Prevention and Control
In resolution for the corruption prevention system to be unified and corruption prevention actions be effective, close cooperation between various departments and persons from state and municipal institutions responsible for corruption prevention is necessary.
The implementation of cooperation is regulated by the Rules of the Operation and Cooperation between Departments and Persons in State and Municipal Institutions that Perform Corruption Prevention and Control175, approved by the resolution No. 607 of the Government of the Republic of Lithuania on 19 May, 2014 (hereinafter referred to as the Rules).
The Rules establish the following:1. Departments and persons performing corruption prevention and control cooperate with
other structural departments of the institution, other state and municipal institutions and their employees that perform corruption prevention and control in resolution to prevent corrupt acts in the most effective manner. The cooperation between state and municipal institutions is carried out in the manner and under the conditions prescribed by the institutions.
2. The cooperation covers the exchange of information, the submission of proposals, reacting to received proposals, the coordination of actions, the provision of methodological assistance, other actions necessary in resolution to carry out corruption prevention and monitoring.
3. The cooperation is based on principles of legality, honesty, respect for human rights and freedoms, coordination between openness and confidentiality.
4. Departments and persons performing corruption prevention and control submit information of all identified corrupt actions and persons suspected in having performed corrupt actions, processes that influence or may influence the occurrence of reasons or expansion of corrupt actions in the institution by a request of the Special Investigation Service in accordance with conditions and the procedure established by the institution.
5. Departments and persons performing corruption prevention and control gather and submit the information necessary for the performance of the corruption risk assessment to the head of the institution in accordance with the procedure established by the Law on Corruption Prevention of the Republic of Lithuania. After assessing the reliability and quality of the information, the head of the institution submit it to the Special Investigation Service. While gathering the information necessary for the performance of the corruption risk assessment, departments and persons performing corruption prevention and control may additionally submit proposals on what legal acts are to be improved or actions to be taken in resolution to avoid corruption manifestations in the sphere of activity of state or municipal institutions.
6. During the cooperation in accordance with conditions and the procedure established by the institution, departments and persons performing corruption prevention and control may request methodological assistance regarding corruption prevention issues from other structural departments of the institution, other state and municipal institutions and their employees that perform corruption prevention and control. In resolution to receive methodological information on corruption prevention issues from the Special Investigation Service or other state and municipal institutions, departments and persons performing corruption prevention and control shall submit a motivated request to the state and municipal institution from which the information is required in accordance
175 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.BC48C6C9AEF4.98
with conditions and the procedure established by the institution. The state or municipal institution that received the request shall provide the requested information in accordance with its competence, terms and conditions established in legal acts.
7. After receiving a request related to corruption prevention and control from another state or municipal institution, departments and persons performing corruption prevention and control shall reply or take actions to facilitate a reply in accordance with conditions and the procedure established by legal acts. Cooperating persons exchange the information in writing or verbally. If necessary, departments and persons performing corruption prevention and control organize meetings with institution departments or employees of other state or municipal institutions performing corruption prevention and control.
Persons performing corruption prevention and control, heads of departments performing this work, as well as state and municipal institutions are responsible for the compliance with the Rules, the submission of information in a timely manner and the cooperation.
10.4. Recommendations on the Requirements and Prohibitions for Persons Responsible for Corruption Prevention
In the analysis “Corruption Prevention in Eastern Europe and Central Asia”176 performed by an organization for economic collaboration and development the Anti-Corruption Network for Eastern Europe and Central Asia it is emphasized that in resolution for corruption prevention actions to be effective and not to be a bureaucratic burden on an institution, it is important for their implementation to be assigned to persons with corresponding personal characteristics and special abilities.
With regard to the aforementioned, it is recommended for persons performing corruption prevention and control in the institution to be of good reputation and correspond to certain special requirements.
The person performing this kind of work must not: 1) be recognized as having committed a criminal offence by a final judgement and to not
have a criminal conviction that is not expired or been expunged;2) be exempt from a criminal liability under Article 38, 39, 39(1) or 40 of the Criminal Code
of the Republic of Lithuania by a court ruling if the judgement has come into force less than three years ago;
3) be dismissed from an appointed or elected position due to a breach of an oath or a commitment, a discredit to the name of an officer if less than three years have passed since the dismissal or the decision to revoke the mandate;
4) be a subject to disciplinary or administrative sanctions for violations of ethical norms established by legal acts if the sanctions were applied less than three years ago;
5) be dismissed from work, duties or have lost the right to engage in certain activities for non-compliance with the requirement to be of impeccable reputation established by the law and violations of ethical norms established by legal acts if the person in question was dismissed from work, duties or have lost the right to engage in certain activities less than three years ago;
176 The analysis may be found on the following website: http://www.oecd.org/corruption/acn/ACN-Prevention-Corruption-Report.pdf.
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6) be currently under administrative sanctions for administrative violations, one of aggravating circumstances of which is established in the Paragraph 8 Article 32 of the Code of Administrative Offences of the Republic of Lithuania.
Person responsible for the corruption prevention must comply with the following special requirements:
1) have a university degree in public administration or a law degree;2) be acquainted with legal acts regulating corruption prevention, civil service, working
relations, adjustment of public and private interests, institutional ethics, institutional, professional, and disciplinary liability and be able to apply them;
3) be acquainted with the rules of document management, recommendations on the preparation of draft-laws;
4) be acquainted with the system of the government and operating principles of Lithuania and governing agencies and institutions, to understand their essential functions;
5) can manage, store, organize, analyse, update, and summarize diverse information and submit proposals (assessments) and conclusions based on it;
6) be honest, loyal to the civil service, initiative, non-confrontational and tolerant;7) have outstanding communication, cooperation, and coordination skills.
10.5. Municipal Anti-Corruption Commissions: Legal Regulation, Problems, and Recommendations
It is established in Article 15 of the Law on Local Self-Government of the Republic of Lithuania that the Municipal Council establishes the Anti-Corruption Commission for the term of office. An Anti-Corruption Commission aims at coordinating the implementation of the municipal policy in corruption prevention in accordance with its competences, distinguish top-priority areas of prevention and control while consistently implementing actions that improve the effectiveness of corruption prevention.
Main functions of an Anti-Corruption Commission (Paragraph 4 Article 15 of the Law on Local Self-Government of the Republic of Lithuania):
1) to participate in an Anti-Corruption assessment of draft-laws prepared by municipal institutions in accordance with the procedure established by the rules of conduct at the initiative of the municipal council or the mayor;
2) to participate in the preparation of Anti-Corruption programs and submit conclusions regarding these programs and their implementation to the municipal council;
3) to analyse proposals and remarks regarding the implementation of Anti-Corruption actions provided by members of municipal community, state institutions, representatives of local communities and community-based organizations;
4) to inform the public regarding their activity, corruption prevention actions being implemented, as well as Anti-Corruption results;
5) to perform other functions established in other legal acts and related to the policy in a corruption prevention area implemented in a municipality.
It is important to note that the Special Investigation Service prepared the Exemplary Provisions of Municipal Anti-Corruption Commission (hereinafter referred to as the Provisions)177
177 The Provisions may be found on the internet: http://www.stt.lt/documents/korupcijos_prevencija_2015/Sav_antikorupcijos_komisijos_nuostatai.docx.
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in resolution to form uniform principles of forming Anti-Corruption commissions operating in municipalities and their operation. The Provisions were sent in a written form to all municipalities on 19 June, 2015 under the resolution No. 4-01-4599.
These Provisions regulate additional functions of a municipal Anti-Corruption Commission:
1) to participate in establishing areas of interest of a municipal institution where a high probability of corruption manifestations exists;
2) After performing corruption risk assessment in areas of interest of a municipal institution, the SIS submits proposals regarding the implementation of recommendations and ensures the control of their implementation;
3) to coordinate the Anti-Corruption policy and the implementation of its actions performed by a municipality, institutions managed by a municipality and (or) enterprises, as well as public institutions if one of the founders is a municipal institution or agency;
4) to handle complaints of citizens, to submit conclusions and recommendations to the director of municipal administration of a municipal council.
The following individuals may be members of an Anti-Corruption Commission set up by a municipal council: members of a municipal council, civil servants, experts, representatives of local communities and community-based organizations, other members of a municipal community. The representatives of local communities shall constitute no less than 1/3 of members of an Anti-Corruption Commission. On the recommendation of the mayor, the municipal council shall appoint chairpersons of these Commissions from the councillors. If the minority (opposition) of the municipal council is announced, the candidature of the chairperson of the Anti-Corruption Commission shall be nominated by the mayor on the proposal from the minority (opposition) of the municipal council in accordance with the procedure laid down by the rules of conduct. If the minority (opposition) of the municipal council does not nominate a candidate to the chairperson of the Ethics Commission, a chairperson of the Ethics Commission shall be appointed by the municipal council on the proposal from the mayor. Commission members shall appoint the deputy chairperson of the Anti-Corruption Commission from the councillors. The executive secretary of an Anti-Corruption Commission shall be appointed by the director of the municipal administration from civil servants; these functions are included into their job description.
The chairperson of the Commission organizes the work of the Municipal Anti-Corruption Commission and supervises it. In the instance of the absence of the Commission chairperson or if the chairperson cannot perform the duties, a deputy chairperson of the Commission shall preside as a chairperson and perform the duties.
Issues in the competence of the Anti-Corruption Commission shall be considered and decisions shall be made during meetings. The Commission meets no less that once half a year. Extraordinary meetings of the Commission may be convened. The chairperson of this Commission and, in case of their absence, the deputy chairperson of the Commission shall convene and preside ordinary and extraordinary meetings of the municipal Anti-Corruption Commission. The meeting of the Municipal Anti-Corruption Commission is legal when more than half of the members of the Commission participate. Meetings of the Municipal Anti-Corruption Commission are public. Upon a decision made by the Commission, the non-public meetings may also be convened; only persons invited by the Commission may participate in them. The decisions of the Municipal Anti-Corruption Commission are made by the simple majority of open votes of participating Commission members during the Commission meeting; the decisions are formalized by minutes of
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the Commission. If votes are distributed equally, a deciding vote is cast by the chairperson of the Municipal Anti-Corruption Commission (in the event of the absence of the chairperson - deputy chairperson). Members of the Municipal Anti-Corruption Commission have the right to express a dissenting opinion, if they do not agree with the decision of the Commission. The Municipal Anti-Corruption Commission submits its conclusions and proposals in writing. Minutes of a meeting of the Municipal Anti-Corruption Commission are written and signed within 5 business days after the meeting. The minutes are signed by the chairperson of the Commission and the executive secretary. Upon the Commission’s decision, an audio recording may be made during a meeting. After receiving decisions of the Municipal Anti-Corruption Commission, entities of a municipal administration, institutions and enterprises managed by a municipality shall consider them and inform the Anti-Corruption Commission in writing on how proposals and remarks provided by the Commission were regarded within one month or other term specified by the Commission.
The operation of the Municipal Anti-Corruption Commission is coordinated and monitored by a municipal council. The Municipal Anti-Corruption Commission periodically submits a performance report to the municipal council at least once a year.
All information related to the operation of the Anti-Corruption Commission (Legal acts regulating the operation of the Commission, its performance reports, statements intended for the mass media, etc.) is published of the municipality website. The information related to the operation of the Anti-Corruption Commission is provided by the Commission chairperson or the Commission member authorized by the chairperson.
During the constant monitoring of the operation of Anti-Corruption commissions operating in municipalities and the assessment of the results of the performances of these commissions by the SIS, the following issues178 that rise during the operation of Anti-Corruption commissions were identified:
1) frequently members of political parties of the Republic of Lithuania are appointed to the position of members of municipal Anti-Corruption commissions; it is not uncommon if up to 1/3 of members are representatives of the public;
2) the non-implementation of legal acts related to corruption prevention and the operation of an Anti-Corruption Commission;
3) a formal approach to the corruption prevention;4) an opinion that “the situation here is good”;5) passivity and ineffective performance (1-2 meeting a year);6) lack of competence;7) lack of the publicity of the operation of a municipal Anti-Corruption Commission;8) the informal delegation of Commission functions to one Commission member (usually
the member that is responsible for the corruption prevention);9) an Anti-Corruption Commission is not an Anti-Corruption tool but the tool for
“persecution” of political opponents;10) a controversial society’s position regarding the corruption, tolerance of the corruption
and inactivity in Anti-Corruption work.
10.6. Standard Job Description of a Compliance Officer
178 See more information on the operation of Anti-Corruption commissions in the summary prepared by the SIS on http://www.stt.lt/documents/korupcijos_prevencija_2016/AK.pdf.
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On 21 June, 2011, the Chief Official Ethics Commission adopted a decision No. KS-35 “On the Approval of a Standard Job Description of a Compliance Officer (an authorized representative of a head of an institution)”179; the decision offers heads of state and municipal institutions and their authorised representatives to consider a requirement and possibilities to create a separate (independent) position for a compliance officer (a representative authorized by an institution) or to assign the functions specified in the standard job description to other civil servants of the institution that already perform similar (related) tasks.
It is told in the standard job description of a compliance officer approved by the decision made by the COEC that this position is required in resolution to ensure the prevention of professional ethics (conduct) violations; to monitor the declaration process of private interests; to implement corruption prevention actions, i.e. objectivity of adopted decisions, impartiality, the investigation of professional ethics violations, principles of transparency and publicity; to represent the institution in state or municipal institutions, during interdepartmental operation of working groups, in court; to collaborate with the Chief Official Ethics Commission and other organizations (including international) on the issues related to their professional competence.
Furthermore, the Chief Official Ethics Commission publishes the contact information of persons responsible for prevention of conflict of interest in municipalities on its website.180
179 Internet access: www.vtek.lt.180 Internet access: www.vtek.lt.
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11. PROVISION OF INFORMATION ON INDIVIDUALS
While implementing the LPC provisions the Special Investigation Service seeks not to allow persons with a questionable reputation to be employed by institutions of the Public-sector (state and municipal institutions, other public administration entities) in resolution to reduce the extent of corruption in institutions of the Public-sector and for it to become a basis for the creation of a more transparent society. The duty of a manager hiring a person is to ensure that persons hired and working in the position in question comply with the requirements of impeccable reputation (Legal acts of the Republic of Lithuania establish different requirements for a person’s impeccable reputation depending on the position or the nature of performed functions). Therefore, it is important to know in what cases the SIS must or can be contacted, how to properly organize the provision of the information for a request about persons seeking an employment or already employed by a state or municipal institution or an enterprise, what possible decisions can be made in relation to the employment of a person.
11.1. Categories of Individuals in Relation to Whom a Duty or a Right Arises to Contact the Special Investigation Service
The duty to contact the SIS is established in Paragraph 6 of Article 9 and Paragraph 1 of
Article 91 of the LPC, i.e. when a person is appointed to a position by the President, Seimas, the Chairperson of Seimas, the Government or the Prime Minister, and whenever a person is intended to be appointed to the following post: vice-minister, chancellor of a ministry, head and a deputy head of a municipal administration, prosecutor, head and a deputy head of a state or municipal institution, head and a deputy head of a department of a state or municipal institution (applicable to a structural department that does not belong to another structural department), head and a deputy head of state or joint-stock companies of strategical importance for the national security and companies important for ensuring the national security, state or municipal enterprises where more than 50 percent of votes in a general meeting of shareholders belong to the state or a municipality. It is also obligatory to contact SIS regarding members of European Commission, Court of Auditors, Court of Justice and General Court of European Union, Regional Committee, European Social and Economic Committee, as well as candidates to a position of an officer in judicial or other international institutions.
Heads of institutions and enterprises have not a duty but a right to contact SIS regarding other persons in resolution to request information on a person seeking an employment. In this instance, expediency is important when requesting the provision of the information about a person from SIS. For instance, the person to contact the SIS regarding the provision of information about a school’s deputy head master for curriculum and economic affairs should be the school’s head master. It is obligatory in accordance with the provisions of the Article 9 of the LPC. A school’s director has the right to request the information on a teacher, a teacher’s assistant, a librarian, a driver, a janitor, or other school’s employee from SIS; in this case a headmaster decides whether to contact the SIS or not. The SIS provides the information about a person seeking an employment if a written request of an entity providing an employment is submitted, although a provision of a written request is not obligatory for the SIS.
If it is required by the service, a career public servant may be transferred to another position – a higher, lower, or belonging to the same category position of a career public servant in
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the same state or municipal institution or agency, a different state or municipal institution or agency located in the same or different place of residence (Paragraphs 5-10 of Article 18 of the Law on Public Service of the Republic of Lithuania). A manager appointing the aforementioned person to a position decides whether to contact the SIS or not. No exceptions regarding persons already employed in one position or another that have already been reviewed by the SIS and that are seeking to be appointed (temporarily, to be transferred) to another position indicated in the Paragraph 6 of Article 9 of the LPC are established in the LPC. In resolution to temporarily appoint a person as a head or to a position indicated in the Paragraph 6 of Article 9 of the LPC a duty arises to request information from SIS. It should be noted that if, for instance, a deputy head temporarily assumes the duties of a head (due to a vacation, an illness) the SIS need not to be contacted. However, anticipated term of a temporary management, whether a temporary head is from the same workplace and similar circumstances should be considered if a head is fired.
After a decision on exchange of positions of career public servants, a person that employs a public servant shall contact the SIS for the information in accordance with the provisions of Paragraph 6 of Article 9 of the LPC. An entity appointing or having appointed an employee to a position shall not provide the information about the person to a third party in accordance with the procedure established by Article 9 of the LPC, except for the cases as laid down by the law of the Republic of Lithuania.
It is recommended to contact the SIS only regarding the selected candidates, i.e. after the selection is finished, the tender for a position is won, etc.
11.2. Entities Obligated to and Having the Right to Submit Requests to the SIS and to Receive Gathered Information
Information about a person seeking to be employed or already employed in a state or
municipal institution or enterprise is provided to the head of a state or municipal institution or enterprise that employed or is to employ the aforementioned person, a collegial management body, or a state politician. A request to provide the information shall be signed by the entity that appointed the person to the position or an authorized representative. If a request to provide the information is signed by an authorized representative of the entity that appointed the person to the position, a certified copy of a document that authorizes the representative to submit a request to the SIS shall be provided.
A request for the SIS to provide information about a person that is appointed by Seimas shall be signed by the Chairperson of Seimas or the authorized representative, and if the information about a person that is appointed by the Government is requested, it shall be signed by the Prime Minister or the authorized representative. A request for the SIS to provide information about a person that is proposed for the post in international or European Union’s judicial or other institutions shall be submitted by the Prime Minister or the authorized representative.
11.3. Content of the Information Gathered and Provided by the SIS (Differences from Special Requirements of Impeccable Reputation Established in Legal Acts)
Heads of state institutions and enterprises are legally obligated to ensure that only persons
complying with requirements of impeccable reputation would be appointed to positions of public service. Legal norms do not seek to consolidate general requirements of impeccable reputation or
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basis for a non-acceptance for an employment or a dismissal of a person seeking to be employed or currently employed by a municipal or state institution or enterprise; legal norms allow specifying the type of information that is provided to the entity appointing or having appointed the person. All the provided objective information specified in the Paragraph 2 of Article 9 of the LPC allows describing a person to a full degree, i.e. the suitability of the person for a position being sought or currently held. The law enforces the right to receive all relevant information on a candidate in resolution for the entity appointing to a position, after assessing the information, to be able to make the right decision. The information provided allows the entity appointing to a position to describe the person employed by a state or municipal institution or enterprise to a full degree, if reasonable doubts have arisen regarding the person’s suitability.
The SIS selects, provides, and assesses the information regardless of whether the person complies with the special requirements of an impeccable reputation established by the law or not. The SIS gathers and provides the entity appointing or having appointed a person to a position with the information about the person’s previous convictions (regardless of whether the conviction was released or expunged); judgements or resolutions that stopped criminal proceedings, passed regarding the person in a process on corrupt criminal activity or the person was exempted from criminal liability or the penalty; allegations of corrupt criminal activities made to the person, as well as procedural decisions in these cases; preventive actions against organized crime applied or being applied regarding the person under the Law on Organised Crime Prevention of the Republic of Lithuania; a dismissal from an appointed or elected position due to a breach of an oath, a discredit to the name of an officer (judge); the person’s acts of serious professional misconduct (violations of job responsibilities) and the official (disciplinary) penalties imposed due to them (regardless of whether penalties are valid or expired); cases where the person was found in breach of the Adjustment of Public and Private Interests in the Law on Public Service of the Republic of Lithuania, the Law on Lobbying Activities, the Code of Conduct for State Politicians regulating norms and provisions of professional ethics and conduct; the fact that the person being appointed to a public service position has concealed or has provided false data that would have prevented the person from being appointed to a public service position; classified information on the person’s criminal activity that is being prepared, is being performed or has been committed; existing administrative penalties for administrative violations committed by the person; tax inspections, investigations performed regarding the person during the performance of which violations of tax laws were revealed (the data of the last ten years is provided, starting from the day of the receipt of a request to the SIS to provide the information on the person).
The information on a person appointed or being appointed to a position by an entity is provided in accordance with the time limits established in Paragraph 4 of Article 9 of the LPC in writing after the information has been gathered by the SIS from state registers and other information systems and the written requests submitted by the SIS to main institutions of law-enforcement agencies, control authorities, criminal intelligence entities, criminal intelligence, intelligence agencies, other institutions, agencies and enterprises were responded to.
In the event of the receipt and (or) gathering of the classified information regarding criminal activity that is being prepared, is being performed or has been committed, the information is provided to the entity appointing or having appointed a person to a position, if that person has the right to work with or access classified information.
The information is provided on the person who is seeking an appointment to a position, but not on the person’s family members or close relatives. Persons seeking an employment, especially
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public figures, should publicly declare their potential conflict of interest before being appointed to a position in resolution to avoid certain questions in the future asked by the society and persons that are planning to appoint or already have appointed them.
11.4. Completion and Submission of a Request to the SIS to Provide Information on a Person
When applying for the information regarding a person seeking to be appointed to a position, a form181 of a request for the information on a person seeking to be appointed to a position in state or municipal institution or enterprise shall be filled in and submitted directly to the SIS by post, e-mail, fax or other telecommunications terminal equipment; the form is approved by the Resolution No. 2-36 “On the approval of forms for requests to the special investigation service of the Republic of Lithuania to provide information on a person in accordance with the Law on the Prevention of Corruption of the Republic of Lithuania” approved on 5 February, 2013182.
When applying for the information regarding a person appointed to a position, a form of a request for the information on a person appointed to a position in state or municipal institution or enterprise shall be filled in and submitted directly to the SIS by post, e-mail, fax, or other telecommunications terminal equipment183.
When applying for the information regarding a person specified in Article 9 of the LPC, a form of a request for the information on a person that is being appointed to a position in European Union’s or international judicial or other institutions shall be filled in and submitted directly to the SIS by post, e-mail, fax, or other telecommunications terminal equipment184.
A person appointing employees to positions shall indicate the date, number, and a security level of a permit to work with or access classified information while submitting a request. Permits to work with or access classified information are issued by the State Security Department of the Republic of Lithuania.
A request to the SIS to provide the information on a person being appointed or appointed to a position shall be signed by the entity that appointed the person to the position or an authorized representative. If a request to provide the information is signed by an authorized representative of the entity that appointed the person to the position (except for the Chairperson of the Seimas and the Prime Minister), a certified copy of a document that authorizes the representative to submit a request to the SIS shall be provided.
The entity that appointed the person to the position or the authorized representative may request the SIS to provide the information on a person in a position specified in the Paragraph 6 of Article 9; however, this request must be motivated and based on data that raises doubts concerning the person’s suitability for the position held. This data may be related to the information indicated in Paragraph 2 of Article 9 of the LPC, as well as to other important information raising reasonable doubts regarding the suitability of a person to the position held.
181 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=442836. 182 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=442836. 183 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=442836. 184 Internet access: http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=442836.
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CONTENT OF A REQUEST
On a person SEEKING TO BE APPOINTED to a position on a person HOLDING a position
Person’s name, surname, personal codePerson’s sought / held position
Entity’s position, name, surname, personal codeEntity’s permit to work with or access classified information
Entity’s workplace’s requisites and contact information
Motives and the supporting datathat raise doubts concerning the person’s
suitability for a position held
Entity’s authorization to submit a request to the SIS
There are cases when a request is submitted to the SIS regarding the provision of information on a person that is sought to be assigned to fulfil additional functions, for instance, to be assigned to be responsible for the fulfilment of corruption prevention functions in an institution, assign to a position of a member of an Anti-Corruption Commission seeking to learn in accordance with a modular professional training program, etc. In these cases, there is no basis for requesting the information on persons already holding a position from the SIS in accordance with the LPC.
11.5. Use of Obtained Information The law establishes an obligation and a right to provide and receive information on a
candidate or a person holding a position in a state or municipal institution or enterprise without regulating what decision should be made. It is the right of an entity appointing or having appointed a person to a position, taking into consideration the information obtained and requirements for impeccable reputation established in special laws (for instance, the Law on Public Service of the Republic of Lithuania, the Law on Public Procurement of the Republic of Lithuania), to adopt a decision.
A person may be appointed to a position only after the receipt and the assessment of the information provided by the SIS within 14 calendar days from the day of the submission of a written request to obtain information on a person.
An entity appointing or having appointed a person to a position shall use the information obtained by SIS only in resolution to decide whether the person is suitable for a sought position or to decide on an imposition of an administrative (disciplinary) penalty. After assessing the entirety of information provided by the SIS and adopting a decision not to appoint a person to a position, a person shall be acquainted with the provided information upon signed acknowledgement within 3 business days except for the part with classified information.
Individuals related to the employment of a person seeking to be appointed to a position or holding a position in a state or municipal institution or enterprise or the imposition of a penalty (for
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instance, members of a municipal council, a company’s board members) may also get acquainted with the information provided by SIS.
A person may appeal a decision not to be appoint to a position in accordance with the procedure established by the Law of the Republic of Lithuania.
11.6. Compilation of a List of Positions Before the Appointment to Which an Institution or an Enterprise Shall Submit a Written Request to the SIS and Its Disclosure
From 1 July, 2016, state and municipal institutions and agencies are obligated to create a
section “Corruption prevention”185 on their websites and publish (or provide links to sources that publish the information) the information on the implementation of corruption prevention actions that an institution is to employ, i. e. including the information on positions before the appointment to which information of the person seeking being appointed needs to be obtained in accordance with the provisions of Articles 9 and 91 of the LPC. In resolution to announce this information it is recommended to create a section “The acquirement of the information on a person” where information on the implementation of the provisions of Articles 9 and 91 of the Law on the Prevention of Corruption of the Republic of Lithuania is published (or provide links to sources that publish the information). During the implementation of a corruption prevention action, i.e. the submission of the information on a person seeking or holding a position in a state or municipal institution or enterprise, to compile a list of positions before the appointment to which an institution or a company shall submit a written request to the SIS for the acquirement of the information on a person seeking to be appointed to this position. It is also recommended to inform the public about Anti-Corruption activities performed by a state, municipal institution or enterprise, transparency and efforts to achieve the situation when only persons with impeccable reputation would be working in state or municipal institutions or enterprises, and to publish the compiled list on website of institutions and companies constantly revising and updating it.
An example
A LIST OF POSITIONS BEFORE THE APPOINTMENT TO WHICH IT IS PRESCRIBED TO SUBMIT A WRITTEN REQUEST TO THE SIS IN ACCORDANCE WITH ARTICLE 9 OF THE LPC
PART I. MANDATORY PROCEDURESeq. No.
Title of a state, municipal institution (agency, company)
Title of a structural department
Position title Job title of a head appointing a person to a position
1 2 3 4 5
PART II. BY THE DECISION OF THE HEAD OF AN INSTITUTION (STATE AGENCY, ENTERPRISE)Seq. No.
Title of a state, municipal institution (agency,
company)
Title of a structural department
Position title Job title of a head appointing a person to a
position1 2 3 4 5
INFORMATION ON REQUESTS SUBMITTED TO THE SIS IN ACCORDANCE WITH THE ARTICLE 9
185 Internet access: https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.209540/IkpcQBWXHi?positionInSearchResults=13&searchModelUUID=e8b3526e-463c-41f4-8f68-1e8cef2d0833.
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Seq. No.
Title of a state, municipal institution (agency, enterprise)
Title of a structural department
Position title Person’s name and surname
Date of request submission for the
SIS
1 2 3 4 5 6
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12. GUIDELINES FOR THE CODE OF CONDUCT OF PUBLIC SERVANTS (EMPLOYEES)
Internal regulation plays an important role in anti-corruption. The Private-sector increasingly frequently considers corporate responsibility, the compliance with legal acts and strict corruption prevention to be a part of common corporate policy and management. Codes of ethics of individual companies are essentially based on international guidelines and guidelines of the sector. It is assumed that they are intended to be employed in resolution to implement relevant EU standards (non-financial reporting, corporate social responsibility, etc.). The main objective of the institution code is to promote ethical behaviour in all areas of operation, to seek for all interested parties to commit themselves to comply with these rules of conduct, and implement this code in a transparent and inclusive manner while, among other things, ensuring a social dialogue. It is believed that initiatives of the Private-sector would also be welcome in the Public-sector, in terms of self-regulation.
The operation of the Public-sector is based on the trust and the expectation of the society that persons serving them operate under the highest standards of professional conduct. Why is it important to orient employees of the Public-sector? Since the honour and dignity of the employees of the Public-sector are directed to building up the social capital. A Social capital is the greatest public asset, it determines potential opportunities and prospects for the future of a society. The basis of a social capital is a mature civil society and strong democracy that ensures citizens’ confidence in various public entities and organizations. The parameter that is the most difficult to action but that describes a social capital the best is citizens’ confidence in various public entities and organizations.
It should be mentioned that the following elements are the most common in ensuring the functionality of an ethics system:
- a legal basis for professional ethics;- codes of professional ethics; - services ensuring professional ethics and monitoring institutions;- training in the field of professional ethics, etc. Ethical problems start where the law does not operate yet (laws that effectively administer
and regulate new area of operation have not been adopted yet), or operates no longer, where laws are unclear or not defined strictly, therefore, there are encountered ways to bypass them or use for unethical or even illegal purposes.
Ethical principles establish specific values, which are important for a person employed in the Public-sector, such as honesty, fairness, integrity, reliability, selflessness. Ethical principles are general guidelines facilitating the decision-making process, allowing others to believe that a certain person will follow the principles laid down by ethical standards.
The following causes for the non-compliance with professional ethics (ethical conflicts) are isolated:
- differences in behavioural traditions, education, religion, etc.;- differences in value systems and opinions of officials;- an inadequate allocation of resources of a public service organization;- different objectives of departments of a state organization and an inadequate departmental
coordination.
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In resolution to solve ethical conflicts in the public service, it is necessary to create a legal, transparent and effective system for the prevention of conflicts. In most cases, in addition to the establishment of a variety of structures monitoring ethics (ombudsman (in Lithuania - the Seimas Controller) institute, ethics committees and commissions, etc.), a great emphasis is placed on the development of codes of conduct and ensuring their effective operation.
The code of conduct is regulated by specific norms of behaviour, which a person employed in the Public-sector must comply with in accordance with the code. The Code does not regulate values, but rather the behaviour that can be controlled, for instance, to abstain from alcohol and drugs, not to speak of certain subjects, in resolution to maintain a positive image of an institution.
12.1 Role, Purpose, and Preparation of the Code of Conduct
The purpose of the Code of Conduct of employees of the Public-sector is to define the principles of conduct that must be observed by a staff member (employee) during the performance of duties and functions established by legal acts and the provision of a public service, as well as the conduct off duty, to develop creative and benevolent professional environment, to foster staff relations based on cooperation and mutual understanding, to increase public confidence in representatives of the Public-sector, to improve the quality of public administration.
The Code of Conduct should be aimed at defining the behaviour on and outside the service in public in resolution to avoid discrediting the name of an employee and (or) institution while indicating possible actions that do not meet generally accepted standards of conduct, which obviously diminish the reputation of an institution or an employee, undermine the trust in an institution or compromise it.
Undoubtedly, codes of conduct can in themselves neither create fairness nor protect against fraudulent or corrupt conduct. Codes are only a certain system or structure covering and combining generally applicable norms of conduct.
The Code of Conduct should increase the society’s trust in the quality and transparency of decision-making in the Public-sector, to assist in ensuring ethical conduct while interacting with colleagues, officials and the society. The Code helps to prevent conflict of interest, and the citizens are acquainted with professional work standards employed in an institution.
The Code of Conduct establishes standards of conduct, how people should behave, even of a higher level than those required by the society. The Code of Conduct may regulate both issues related to conflict of interest and individual norms of behaviour.
An effective code of conduct must be:1) exhaustive,2) comprehensible,3) uncompromising.
It is recommended to perform the following actions while implementing a code of conduct: to acquaint all employees with the code of conduct prior to employing them; to aid the employees in understanding the text of the code, to regularly discuss the
code with employees and update its contents; to openly acknowledge if the code was violated, and to search for the reasons of the
disregard of the code; to involve all employees into a process of revising and improving the code; to define a managerial responsibility for the implementation of the requirements of the
Code in departments assigned to them;
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to define the responsibility of each employee regarding the compliance with the requirements of the code;
to clearly define penalties for the disregard of the code and acquaint all employees with them.
The implementation of the code is entrusted to persons responsible (the commission, ethics officials, etc.).
It should be noted that the Public-sector employs both public servants that are subject to the Rules of Ethical Conduct for Civil Servants186 and employees working under employment contracts that are not subject to the Rules of Ethical Conduct for Civil Servants. Institutions may establish certain principles of conduct in their internal regulations (procedures, etc.), however, often an institution does not have a single generalized document, which would not list only ethical principles, but would also give a wider account of how a public servant and an employee working under contract should act in different situations. Therefore, a code of conduct could be a useful tool of the staff of an institution.
While preparing a code of conduct for a civil servant it is useful to get acquainted with good existing examples. “The Code of ethics of judges of the Republic of Lithuania - a practical guide"187 prepared in 2015, as well as materials prepared for drafting codes of conduct188 in 2002 and other useful information189 may serve as such examples and useful tools for drafters of a code of conduct.
186 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.59D1FFDA35ED.187 Internet access: http://www.teismai.lt/lt/teismu-savivalda/teiseju-etikos-ir-drausmes-komisija/apie-komisija/182.188 Internet access: http://www.stt.lt/files/mokmedziaga/CD3/CD3_3/files/_teises_aktai/_lietuvos/Lietuvos%20nacionalines%20kovos%20su%20korupcija%20programos%20perziura/II.%20Elgesio%20kodeksai.pdf.189 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.59D1FFDA35ED; https://www.e-tar.lt/portal/lt/legalAct/TAR.FAF0BCB5BA53/UbsEoHhxLe; https://www.e-tar.lt/portal/lt/legalAct/1d077a40d02a11e3a8ded1a0f5aff0a9; https://www.e-tar.lt/portal/lt/legalAct/SAV.518532; https://www.e-tar.lt/portal/lt/legalAct/ae695160e82111e4a4809231b4b55019/qfLGIKHOWv; https://www.e-tar.lt/portal/lt/legalAct/TAR.6CF026D90C58/jnlmwmTqQG; https://www.e-tar.lt/portal/lt/legalAct/TAR.4B72374986EC/UYQsCyBEIr; https://www.e-tar.lt/portal/lt/legalAct/2f9b1270dcff11e39a43a3f57c05722e; https://www.e-tar.lt/portal/lt/legalAct/TAR.A7CF1B5E0C39; https://www.e-tar.lt/portal/lt/legalAct/TAR.AB1BDCE6F6F9.
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13. RECOMMENDATIONS ON THE DECLARATION OF PRIVATE INTERESTS
The declaration of private interests is one of the most effective preventive actions of conflict of interest in the Public-sector, which aids a civil servant in identifying possible threats in his work and properly informing the direct supervisors, colleagues, society.
Persons employed as public servants are obligated to declare private interests by the Adjustment of Public and Private Interests in the Law on Public Service (hereinafter referred to as the Law). In Chapter II of the Law on Declaration of Private Interests persons obligated to submit declarations of private interests are defined, the content of a declaration, terminology employed during the completion and adjustment of a declaration, the submission procedure, and their disclosure.
The process of private interests’ declaration is organized and controlled by the Chief Official Ethics Commission (hereinafter referred to as COEC). The private interest’s declaration of public servants shall also be controlled by heads of appropriate state or municipal institutions or their authorised representatives (Point 2, Paragraph 1, Article 22 of the Law).
The private interest’s declaration system operates on three levels:- personal (of a person who submits a declaration);- institutional (of heads of institutions, heads of departments, staff of an institution, COEC)
and- society (the media and the society).
13.1. Who Must Submit a Declaration of Private Interests?
A declaration of private interests shall be submitted by persons holding positions in public service (Paragraph 1, Article 2 of the Law), candidates to be appointed to a position in public service (Paragraph 1, Article 5) as well as candidates for a position of a Seimas member, the President of the Republic, members of the European Parliament, members of municipal councils (Paragraph 2, Article 4 of the Law). The provisions of the Law concerning a declaration of private interests are also applied to political parties, chairpersons and their deputies, state politicians public consultants, assistants, advisers, members of the collegium of a ministry, the Compulsory Health Insurance Board members, as well as to doctors, dentists and pharmacy professionals employed in budgetary and public institutions owned by the state or a municipality, in state and municipal companies and companies whose shares confer more than 1/2 of votes at the general meeting of shareholders, that are owned by the state or a municipality and that have a health care or pharmacy operating license (Paragraph 1, Article 4 of the Law).
13.2. When It Is Obligatory to Submit, or Adjust a Submitted Declaration of Private Interests?
A declaration is to be submitted within one month after the election, appointment, or
assignment to a position.If the information on private interests of a person submitting a declaration, their spouse,
domestic partner, partner provided in the declaration has changed, the person submitting the declaration shall adjust the declaration within 30 calendar days from the day of data change.
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If new circumstances become known that may cause a conflict of interest, the person submitting a declaration shall adjust it immediately but no later than 7 calendar days after the emergence of these circumstances.
13.3. How to Correctly Fill in a Declaration of Private Interests?
Prior to filling in a declaration of private interests it is recommended to get acquainted not only with the provisions of Chapter II of the Law on Declaration of Private Interests, but also with Rules of Completion, Adjustment and Submission of Declarations of Private Interests approved by the resolution No. KS-84 on 5 July, 2012 (www.vtek.lt).
Only the person submitting a declaration is responsible for the accuracy of the data provided in the declaration, its correct completion and submission.
From 1 August, 2012 private interests may be declared only electronically, via the electronic services portal of the State Tax Inspectorate (www.vmi.lt). A form of declarations of private interests is approved by the Commission, therefore, it can be found and filled in on the website www.vtek.lt or the website of a commercial bank, where a person submitting a declaration has a bank account and an agreement on electronic service provision.
13.4. Publicity of Declarations of Private Interests
An important action of the implementation of corruption prevention is the publicity of private interests’ declarations of public servants. Authoritative international organizations, the World Bank, the United Nations Office on Drugs and Crime, the Organisation for Economic Cooperation and Development SIGMA, summarizing the experience and expert opinions of more than 70 countries around the world state in their guidelines that the publicity of the declaration data is vital for building up public trust in the public administration sector while increasing the transparency of public procurement, seeking to fight corruption and prevent conflict of interest.
The private interests’ declaration data of state politicians, government officials, judges, heads of state and municipal institutions and their deputies, civil servants of political (personal) confidence, civil servants holding positions of heads of structural departments of an institution or an agency and their deputies and other persons specified in Paragraph, 1 Article 10 of the Law is public and available to the public in accordance with the procedure established by the COEC procedure on the website www.vtek.lt
The private interests’ declaration data of other public servants holding lower positions is not public; only the Commission, State Tax Inspectorate, law-enforcement, and control agencies have the right to get acquainted with it, however, primarily is must be done by the head of the institution employing the person or authorized representatives responsible for the prevention of corruption and conflict of interest.
In resolution to ensure the publicity of electronically submitted private interests’ declaration data the person submitting the declaration shall indicate the accurate code of his current position and the name of a workplace.
The Commission has created and administrates an electronic private interests’ declaration information system (hereinafter referred to as IDIS), that provides heads of
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institutions and their deputies with the technical possibilities to monitor the submitted, declared private interests’ declaration data. Organization employing IDIS may electronically administrate private interests’ declarations submitted by employees of the organization.
The IDIS registration rules, provisions of privacy and the form may be found on the Commission website www.vtek.lt/IDIS.
Only heads of institutions or their authorized representatives, i.e. persons responsible for the prevention of corruption and conflict of interest that submitted requests to the Commission may be users of IDIS.
13.5. Ensuring the Performance of the Obligation of Private Interest Declaration in State and Municipal Institutions
Functions of declaration administration, consulting, information submission to the Commission and control shall be performed by heads of state or municipal institutions, agencies, companies if no authorized representatives are appointed (professional ethics specialists, compliance officers, heads of structural departments, etc.) Heads of state or municipal institutions, enterprises or their authorized representatives shall provide conditions for heads of structural departments of these institutions to get acquainted with declaration data of their subordinates. Representatives responsible for declaration control and consulting and authorized by heads of institutions, agencies and companies assume the responsibility to protect the secrecy of personal data in writing.
Heads of state and municipal institutions, agencies, enterprises, or their authorized representatives control the compliance of the employees of their institutions with requirements of the prevention of conflict of interest established by the Law, i. e.:
o monitor whether employees submit declarations correctly and in time;o in accordance with declarations, upon a request from an employee or other
information, prepare preliminary written recommendations for employees regarding actions to be employed in resolution to coordinate official activities with provisions of the Law (recommended);
o consult employees on issues concerning private interests’ declaration;It is recommended to heads of state and municipal institutions, agencies, enterprises, or
their authorized representatives to approve the current list of positions persons holding which are obligated to declare private interests.
More information on the issue can be found in the COEC resolution No. KS-25 “On monitoring the compliance of the provisions of Adjustment of Public and Private Interests in the Law on Public Service” adopted on 26 March, 2009.
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14. GUIDELINES ON EFFECTIVE PROPERTY AND INCOME DECLARATION
14.1. Property Declaration
14.1.1. Objectives of Property Declaration
The Law on Declaration of the Property of Residents190 (hereinafter referred to as the Law) of the Republic of Lithuania obliges residents to declare property.
The declaration of owned property is one of preventive actions for an illicit enrichment, which creates preconditions for increasing transparency of the Public-sector, public trust in state politicians, heads of state and municipal enterprises, officers and other persons holding important positions in the Public-sector.
Moreover, a declaration of property is one of the means to achieve the transparency in financing a political campaign and a political party. The allowed amount of an individual donation to an independent member of a political campaign is determined by comparing it to the declared income. The State Tax Inspectorate (hereinafter referred to as the STI) collects data on the property and income of members of political parties who pay more than EUR 360 a year as a membership fee.
A declaration of property (including income) is also a municipal institutions’ means to determine the owned property and income level of residents seeking support for the purchase or lease of a residential property or social financial support. Furthermore, a declaration of property provides a possibility for tax authorities to receive data on the property owned by a person, the information regarding which cannot be obtained from other sources.
14.1.2. Who Is Obligated to Declare Property?
Taking into consideration the objectives of property declaration the following groups of residents obligated to declare property may be distinguished:
1) residents whose obligation to declare property arose due to a position held the prior calendar year and their family members (for instance, property must be declared by state politicians, public servants, heads of institutions vital for ensuring the national security and their deputies, heads of joint-stock companies a shareholder of which is the state or a municipality, heads of state and municipal institutions, their deputies, heads of departments, their deputies, prosecutors, judges, notaries, bailiffs, their family members, etc.). A detailed list of positions causing an obligation to submit a declaration is presented in Paragraph 1, Article 2 of the Law191;
2) residents seeking to be appointed to one of the positions listed in Paragraph 1 of Article 2 of the Law (for instance, candidates for posts of public servants, politicians, heads of state or municipal agencies, their deputies, heads of departments, their deputies);
3) residents seeking support for the purchase or lease of a residential property, their family members, and upon a request made by a municipal administration, residents seeking social financial support, their family members;
4) members of political parties who pay more than EUR 360 a year as a membership fee, their family members;
190 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.D4A66ACB9F97/TCjkfVmWXn.191 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.D4A66ACB9F97/TCjkfVmWXn.
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5) residents whose amount of a donation (donations) to an independent member of a political party is greater than EUR 12 and their family members;
6) permanent residents over the age of 18, as well as persons over the age of 18 who obtained a right to permanently reside in Lithuania in accordance with the procedure establish in the law “On the Legal Status of Foreigners”, who at the end of the preceding calendar year owned a property that is to be declared for this group of persons.
The list of persons obligated to declare property is constantly being updated after assessing areas bearing risk from the point of view of corruption.
14.1.3. What Property Needs to Be Declared?
Residents that declare property due to positions held or sought to be appointed to, persons donating to independent members of a political campaign, members of political parties, family members of these persons shall declare the following property that was owned at the end of the preceding year:
1) immovable property (buildings, apartments, land plots), including unfinished buildings;
2) movable property that must be legally registered (for instance, road vehicles, agricultural machinery, firearms);
3) funds exceeding EUR 1,500 kept in credit and other organization;4) funds exceeding EUR 1,500 lent and unrecovered;5) funds exceeding EUR 1,500 borrowed and unreturned;6) works of art, precious stones, jewellery, precious metals, with a unit value of more
than EUR 1,500;7) securities if their total value exceeds EUR 1,500.The property kept in both Lithuania and foreign states shall be declared. The list of property that should be declared is stated in Article 3 of the Law.192
Moreover, persons donating to independent members of a political campaign, members of political parties, residents seeking support for the purchase or lease of a residential property, family members of all these persons shall declare the income earned during a year within the property declaration.
Permanent residents of Lithuania over the age of 18, as well as persons over the age of 18 who obtained a right to permanently reside in Lithuania in accordance with the procedure establish in the law “On the Legal Status of Foreigners” shall declare the following property that was owned at the end of the preceding year:
1) immovable property not registered in the Register of Real Property (including unfinished buildings);
2) funds exceeding EUR 1,500 kept in credit organizations outside Lithuania;3) funds exceeding EUR 1,500 borrowed and unreturned;4) funds exceeding EUR 1,500 lent and unrecovered;5) works of art, jewellery with a unit value of more than EUR 1,500;6) securities if their total value exceeds EUR 1,500. The obligation to declare property arises to these residents only if they own the
aforementioned property.
192 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.D4A66ACB9F97/TCjkfVmWXn.118
14.1.4. How to Fill in a Property Declaration?
In resolution to declare property, the Annual Resident (Family) Declaration Form FR0001 is being filled in. The rules on the completion of this form (and the form itself) were approved on 9 February, 2004 by the resolution No. VA-13 “On the Approval of the Annual Resident (Family) Property Declaration Form and the Rules for Its Completion, Submission and Adjustment” of the head of the State Tax Inspectorate Under the Ministry of Finance of the Republic of Lithuania.193
While writing data into a declaration a person may take into consideration existing agreements and other documents, base it on the information available, notes by banks and other legal entities regarding current funds in savings and credits, the income amount provided.
Relevant information on the issues of property declaration is published on the STI website.194 If an issue arises, an inquiry may be made to the STI Tax Information Centre by telephone 1882 or by arriving to any county state tax inspectorate.
14.1.5. What Is the Deadline for Property Declaration Submissions?
Residents that declare property due to positions held and their family members, residents who paid more than EUR 360 for a membership fee, their family members, residents over the age of 18 that own property to be declared shall submit declarations to the STI before 1 May of the following year (that comes after the year for which a declaration is submitted).
Candidates for posts of states politicians, public servants and other positions specified in Paragraph 1 of Article 2 of the Law shall submit declarations to the STI within 7 calendar days from the submission of a request to be appointed to the position.
Public servants and officers of intelligence, criminal intelligence entities the operation of which is regulated by the Law on Criminal Intelligence and the Law on Intelligence and their family members shall submit declarations to the STI regarding property (income as well) in accordance with the procedure established by the resolution 195No. 516 adopted on 28 April, 2004 before 1 July.
Residents donating to members of a political campaign and their family members shall submit a property declaration before the donation, no less than 10 business days prior to the donation.
Residents seeking support for the purchase or lease of a residential property and their family members shall submit property (including the income) declarations prior to submitting a request to provide support or the purchase or lease of a residential property, after the submission of the request – annually prior to 1 May of the current year.
Residents seeking social financial support and their family members shall submit property (including income) declarations upon a request made by a municipal administration prior to submitting a request to provide support.
14.1.6. How to Submit a Property Declaration?
A completed declaration may be submitted electronically via the Electronic Declaration Information System of the STI (https://deklaravimas.vmi.lt/). Residents may also submit
193 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.07302108A4A0.194 Internet access: http://www.vmi.lt/cms/web/kmdb/1.6#Scroll_0.195 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.2206B5C649EA/TAIS_443256.
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declarations using a smart phone and a free STI service, i.e. an electronic program e.VMI specially designed for the submission of declarations (http://www.vmi.lt/cms/mobiliosios-programeles ) . A declaration may also be submitted to a territorial subdivision of a county state tax inspectorate or sent by post to the Declaration Procedure Administration Division of the Tax Obligation Department of the STI under MoF (located at 8, Neravų st, 66257 Druskininkai).If a resident has not submitted a declaration in time, reminders are sent (electronically, by post or phone).
14.1.7. How to Correct Errors (Discrepancies) in a Submitted Property Declaration?
The STI checks the accuracy of submitted declarations. In the event of identifying errors or faults in a declaration, the STI sends a resident a notice (electronically or by post) where identified faults and errors and a request to correct them are contained. After the elimination of errors and faults, an adjusted declaration is submitted; 5 declarations of recent years may be adjusted,
The information on most common errors of declaration completion are available on the STI website ( https://www.vmi.lt/cms/deklaravimu-statistika ) .
14.1.8. The Publicity, Administration, and Control of Property Declaration Data
The publicity of private interests’ declarations of state politicians, public servants is important for increasing the public’s trust in state politicians, the public administration sector.
The main data of property declarations of persons and their family members specified in Article 10 of the Law196 are publicly available. The following data is publicly available: the data regarding the value of property owned at the end of a calendar year (premises, engineering and other structures, legally registered items, works of art and jewellery, securities registered in Real Property Register), the amount of available funds (in credit and other organization), the amount of lent and unrecovered funds; the amount of borrowed and unreturned funds.
Other data of submitted declarations of residents is made publicly available if a written consent of the resident is obtained. The main data of property declarations of persons listed in Paragraphs 2 and 4 of Article 10 of the Law, are annually published on the STI website before October 1 (http://www.vmi.lt/cms/metines-gyventojo-seimos-turto-deklaracijos-duomenu-israsai).
The department of public service, a state or municipal institution responsible for exercising the rights and complying with the obligations of an owner or a shareholder, companies, agencies, and organizations shall annually submit a nominal list of residents obligated to declare property who held a respective position the preceding year to the STI before 1 February. Functions of declaration administration, consulting and control are fulfilled by the STI.
14.2. Income Declaration
14.2.1. Which Residents Are Obligated to Declare Income?
Residents are obligated to declare their income by the Law on Income Tax of Individuals197 (hereinafter referred to as LITI).
196 Internet access: https://www.etar.lt/portal/lt/legalAct/TAR.D4A66ACB9F97/TCjkfVmWXn.197 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.C677663D2202.
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The following residents are obligated to declare their income:1) residents that acquire an obligation to declare the owned property in accordance with
the Law on Declaration of the Property of Residents (except for residents seeking support as well as permanent residents of Lithuania over the age of 18, persons over the age of 18 who obtained a right to permanently reside in Lithuania who do not own any property to be declared);
2) persons who received income that is to be paid by residents themselves;3) persons who received income related to employment or corresponding relations when
the place of income receipt employed the tax-exempt amount (TEA) that must be recalculated;4) residents with registered individual activities or a business license (even if they have
not received any income); Income should also be declared by persons seeking to use tax relief and return a part of
income tax since the income tax to be returned is calculated only in this income tax declaration.
14.2.2. What Type of Income Must Be Received in Resolution to Be Obligated to Submit an Annual Income Tax Declaration?
Residents of Lithuania shall declare income if they received the following types of income:1) Income received from an individual activity (performed with a note or a business
license) including the income received from agricultural activities;2) income taxable by income taxes for the sale or other type of transfer into ownership of
assets, for instance, a car the ownership of which was not maintained for 3 years, a real property the ownership of which was not maintained for a certain period, the sale of financial instruments;
3) income received by owners of individual enterprises, members of partnerships or small partnerships from individual enterprises, partnerships, or small partnerships;
4) income related to employment relations and received from a foreign country;5) income received from distributed profits (dividends) or other taxable income from a
foreign country source;6) income received due to gambling winnings;7) interest on deposits, securities, loans attributable to taxable income;8) gifts of a certain value received from relatives or other residents;9) tax-exempt income received from residents or a foreign country that must be declared
(i.e. income not included into the List of Non-taxable, Non-declarable Income defined by a tax authority).
14.2.3. What Tax Relief Can Residents Use?
The following residents may use a tax relief and recover a part of the paid income tax: 1) persons that have not used the whole tax-exempt amount (TAE), if they received
income related to employment or corresponding relations;2) persons that may use additional TEA for children (adopted children) being raised, if
they received any type of taxable income; 3) persons that paid life insurance or pension contributions, tuition fees, interest for a
mortgage loan obtained before 31 December, 2008; persons that received any type of taxable income that is subject to 15 percent income tax rate.
Taxable income may be reduced by expenses by up to 25 percent.
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Only residents that received tax-exempt income, as well as persons that received income because of a business licence or individual activity (trade, production, some areas of service) that are taxable by a 5 percent income tax rate cannot reduce taxes by declaring expenses and recover income tax.
14.2.4. Why Residents May Be Obligated to Recalculate the Annual TEA?
The reason is that TEA used in the workplace is greater than the whole annual TEA applicable to a resident calculated in accordance with the formula laid down in Article 20 of the LITI.
The annual TEA may be reduced due to different reasons, for instance, to an employee who received sickness benefit, if the benefit was paid not for the whole calendar month (an employer calculates a monthly TEA after having assessed only salary, without evaluating the sickness benefit); to a person that received income from different employers during the same month; to an employee whose salary fluctuated during the tax period due to other types of income, for instance, due to received one-off bonuses, etc.
14.2.5. How to Complete Income Tax Declaration, Where to Inquire Additional Information?
Via Electronic Declaration Information System of the STI: https://deklaravimas.vmi.lt/) preliminary income declarations are formed each March for residents in accordance with existing data. Residents shall assess the declaration data, complement it (if other or (and) more accurate declaration data is available to them) and submit the declaration; After the correct completion of a declaration, the income tax amount to be paid to or by a resident is automatically calculated in the declaration.
A resident may enter or adjust additional data in accordance with existing agreements and other documents, based on the information available, notes on income amounts issued by legal entities.
Further information on issues concerning income tax declaration is available on the STI website (http://www.vmi.lt/cms/web/kmdb/1.17 ) , information may be inquired by contacting the STI Tax Information Centre by telephone 1882, as well as by arriving to a resident service department of a corresponding county state tax inspectorate.
The procedure of the completion, submission and adjustment of an income tax declaration is regulated by the Annual Income Tax Declaration Form GPM308 and the Rules for Its Completion, Submission and Adjustment approved on 15 December, 2009 by the resolution No. VA-96 of the Head of the State Tax Inspectorate under the Ministry of Finance of the Republic of Lithuania (https://www.e-tar.lt/portal/lt/legalAct/TAR.EBC3BDD66541/ZWgOZRWJTM ).
14.2.6. How to Submit an Income Tax Declaration?
Completed declarations may be submitted electronically via Electronic Declaration Information System of the STI (https://deklaravimas.vmi.lt/). Residents may also submit declarations using a smart phone. A free STI service that was specially designed for the submission of declarations: an electronic program e.VMI (http://www.vmi.lt/cms/mobiliosios-programeles). A declaration may also be submitted to a territorial subdivision of a county state tax inspectorate or
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sent by post to the Declaration Procedure Administration Division of the Tax Obligation Department of the STI under MoF (located at 8, Neravų st, 66257 Druskininkai).
If a resident has not submitted a declaration in time, reminders to submit them are sent (electronically, by post or phone).
14.2.7. What Is the Deadline for the Submission of an Income Tax Declaration and the Settlement off Income Tax?
A Declaration shall be submitted and a payable income tax settled after the end of a calendar year and before 1 May of the following year.
Exceptions: Candidates for positions specified in the Points 5-23, 29-35 Paragraph 1 Article 2 of
the Law on the Declaration of the Property of Residents shall submit declarations to the STI within 7 calendar days from the submission of a request to be appointed to the position;
A natural person who stayed no less than 280 days in Lithuania within two consecutive calendar years and during one of them at least 90 days shall submit the annual income tax declaration and settle the payable income tax before 31 December of the year following this person’s return to Lithuania;
Public servants and officers of intelligence, criminal intelligence entities the operation of which is regulated by the Law on Criminal Intelligence and the Law on Intelligence and their family members shall submit declarations to the STI regarding property (income as well) in accordance with the procedure established by the resolution 198 No. 516 adopted on 28 April, 2004 before July 1.
Residents donating to an independent member of a political campaign and their family members shall submit a declaration no less than 10 business days prior to the donation.
Recommendations to a head of a state or municipal institution regarding property or income tax declarations are laid out in Annex 6 of the Guide of Anti-Corruption Environment (16.6 Ensuring the performance of the obligation to submit property/income declarations of a person holding (or seeking to be appointed to) a position in state and municipal institutions).
198 Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.2206B5C649EA/TAIS_443256.123
15. RECOMMENDATIONS ON THE ORGANIZATION OF WHISTLE-BLOWER PROTECTION ASSURANCE
Effective mechanisms of reporting an unethical conduct or corruption are important for corruption prevention, the management of corruption risks and rooting out corruption. A possibility to report potential cases of corruption in a safe and simple manner is an especially important part of the anti-corruption. However, few institutions of the Public-sector in Lithuania clearly promote their employees to report observed unethical or potentially corrupt conduct. Furthermore, employees of an organization are usually best aware of the risks related to specifics of their work, they see the conduct of their colleagues from up close and can report a possible case of fraud or corruption in time. Due to these reasons, more and more organizations of the Public-sector around the world install internal channels for the receipt of reports on potential corruption and encourage employees to speak up. An internal reports channel with clear protection standards and a clear position of the management encouraging to report observed violations may become a sustainable tool to ensure better internal risk management.
It is recommended for Lithuania as a member of international organizations that actively participates in Anti-Corruption control mechanisms to possess effective tools for whistle-blower protection. It should be noted that the program of the seventeenth Government199 establishes that it is planned to improve legal regulation of whistle-blower protection, to ensure the protection of whistle-blowers and their family members, to introduce possibilities of actually promoting civil servants and persons holding corresponding positions who refused to accept a bribe offered and reported the person offering it to an institution that investigates such crimes. Therefore, institutions of the Public-sector should create tools and channels for reporting violations in resolution for all public servants, persons employed in the Public-sector, citizens and representatives of other institutions to be able to use them. These channels could be employed for reporting violations that are possibly committed or currently being committed. Moreover, it would be possible to report all the information regarding the conduct of a person or persons that violates the Code of Conduct of Civil Servants including situations, incidents or actions that affect individual employees or greater groups of employees and may cause negative consequences (pecuniary or non-pecuniary damage to the state or a municipality, damage to the institution that employs the whistle-blower, the reputation of its head or other employees), and that may affect the work motivation, job performance or safety.
A proper protection of a whistle-blower shall be ensured in every stage of violation reporting system.
A position of institution heads on the encouragement of employees to report observed potential cases of corruption and other violations shall be made clear. This position should be reminded during various types of training and it should become a part of the institutional culture.
If an institution has a separate reports channel, the following is recommended:1) to clearly state which person is responsible for monitoring this channel, who
receives and manages the received information; the person reporting should know that the report will not be considered by persons who are sought to be reported about and know that the reports channel can be trusted. Objectivity must be maintained; facts and evidence provided shall be analysed in a consistent and objective manner;
2) to clearly specify and explain the nature of this channel clarifying whether a person may submit a report anonymously, what can one expect in each separate case and what are the 199 Point 435, internet access: https://www.e-tar.lt/portal/lt/legalAct/ed6be240c12511e6bcd2d69186780352
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differences between reporting types, if an institution receives reports by a few different reports channels;
3) to provide clear information on the ways of protecting the information related to the authorship of a report. In resolution for persons that submit reports to trust reports channels, they must be aware of how the information is protected and that wrong persons will not learn about a whistle-blower;
4) to specify whether a person that submitted a report will receive a feedback and how will it be provided; Received reports on potential ethical violations and acts of corruption shall be investigated in time and in accordance with procedures established by the institution and a whistle-blower must in all cases clearly understand whether a feedback on investigation results should be expected.
15.1. Concept of a Whistle-blower
There is no common legal definition of a “whistle-blower”, but this person is always related to reporting violations observed in a workplace. In other words, whistle-blowers are persons that observe various violations (including acts of corruption) due to the nature of their work, but at the same time they face a different kind of potential negative consequences than other persons that submit reports since they work in the places they report about. whistle-blowers may be harassed at work or their employment may be terminated even though their report may prevent crimes or even accidents from happening. Therefore, these persons are the ones that usually have valuable inside information, especially when areas demanding specific type of knowledge are concerned, for instance, illegal agreements during the preparation of technical specifications and qualification requirements for a procurement, or corruption in such areas requiring expert knowledge as a construction of complex infrastructure projects or high technologies. This is the reason why information reported by whistle-blowers may be especially valuable and may aid in preventing serious crimes and accidents.
The International Labour Organization defines a whistle-blower’s report as “the reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers”.
Various international organizations characterize whistle-blowers as persons that require a special legal protection. An increasing number of individual states adopt special laws intended for their protection or amend existing laws in resolution for whistle-blowers to feel safer, at least legally. Moreover, it often becomes an expression of a political will to encourage whistle-blowers to speak up, a form of implementing certain Anti-Corruption actions.
In terms of creating and implementing standards of whistle-blower protection recommendations on further actions in combating bribery of foreign public officials of 2009 should be mentioned. The recommendations refer to protection from “discriminatory or disciplinary actions for employees of the Public and Private-sectors, that submit honest and reasonable reports to competent authorities”.
In the UN Convention against Corruption whistle-blowers are described as follows: “any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention”.
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In Civil Law Convention on Corruption of Council of Europe employees are mentioned as the ones “who report in good faith and based on reasonable grounds their suspicions on corrupt practices or behaviours to persons responsible or authority”.
The Recommendation CM/Rec (2014)7 on Protection of whistle-blowers adopted by the Committee of Ministers of the Council of Europe in 2014 also provide a clear definition of a whistle-blower. A whistle-blower is any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship, whether it be in the Public or Private-sectors. The report or disclosure of public interest means the reporting or disclosing of information on acts and omissions that represent a threat or harm to the public interest. A “report” means reporting, either “internally” within an organisation or enterprise, or to an “outside” authority. A “disclosure” means making information public.
15.2. Importance of the Whistle-blower Protection
A citizens’ right to report on criminal or other illegal activity is a natural expression of a view related to principles of transparency and integrity and the adherence to them. All individuals have an inalienable right to safe guard the wellbeing of their society and the society of other citizens, and in some cases, they have an obligation to report a crime or other illegal activity. An obligation of public servants to report corrupt criminal activities to law-enforcement agencies is established in some foreign states, for instance, Canada, China, Singapore. “Transparency International” and some other organizations fighting corruption consider the establishment of this obligation as a current good practice to be followed.200
It is stated that whistle-blowers can help and save money. In recent years in Great Britain, potential corrupt cases in the Private-sector have been reported more frequently by whistle-blowers than by all the official fraud-spotters, i.e. the internal auditors, corporate security personnel and law enforcers. In has been calculated that in such cases whistle-blowers may aid in saving up to 3 million dollars.201 The USA Government states that during the year of 2012 whistle-blowers that reported corruption in federal government helped to save 3.3 billion dollars.202
Furthermore, it is claimed that whistle-blowers may help to save people’s lives. In 2006, F. Gayl, a US marine science adviser, probably helped to save thousands of lives of US soldiers in Iraq when he reported that US Marine Corps ignored urgent pleas for vehicles that would be more protected from home-made explosive devices and roadside bombs. After this report, the soldiers received well protected vehicles, however, it cost the whistle-blower his career.203
The disclosure of violations is an act when a person expresses concern discloses information regarding illegal acts or omissions of entities that represent a threat or harm to the public interest. It includes a report to employers (heads or other responsible persons), institutions 200 Anti-Corruption Resource Centre, Transparency International. International good practice in Anti-Corruption legislation. Internet access: http://www.transparency.org/files/content/corruptionqas/233_International_good_practice_in_anti_corruption_legislation.pdf.201 Kenny Kate, We Need to Protect the Whistle-blowers Who Save Our Skins but Pay the Price. The Conversation, 2015. Internet access: http://theconversation.com/we-need-to-protect-the-whistle-blowers-who-save-our-skins-but-pay-the-price-41635.202 Bake Gavin, Whistle-blowers Saved the Government $3.3 Billion Last Year. 2012. Internet access: http://www.foreffectivegov.org/whistle-blowers-saved-government-3-billion-last-year.203 Vanden Brook Tom, Marine whistle-blower vindicated after seven-year fight. 2014. Internet access: http://www.usatoday.com/story/news/nation/2014/09/25/franz-gayl-mraps-marine/16225499/
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regulating or monitoring certain areas of operation, law-enforcement agencies, as well as disclosure of information to public (usually through the media or via internet), groups of public interest and members of parliament.
The employer’s interest in the Public-sector is the management of information and the operation of employees. This interest shall be balanced with public’s right to know if their interest is in danger or laws were or are being violated. In the Public-sector, access to information is the main right that allows a more active democratic participation that provides more opportunities to participate in a forming process and for the society to know about state actions.
The disclosure of violations is an important freedom of word and conscience and its expression, it is a vital tool for fighting corruption and maladministration in the Public-sector.
15.3. International Legal Regulation of Whistle-blower Protection
The need for an effective whistle-blower protection is recognized by most of multilateral Anti-Corruption treaties. Current international legal regulation of Anti-Corruption obligates the parties to employ corresponding actions in resolution to protect persons that reported acts of corruption in good faith to competent institutions.
A few international documents also establish recommendations on ensuring the protection of whistle-blowers. They were joined by most European Union member states;
It is established in Article 9 of the Civil Law Convention on Corruption of the Council of Europe that each state shall establish in the national legislation a corresponding protection from unjustified sanctions against employees, who report in good faith and based on reasonable grounds their suspicions on corrupt practices or behaviours of responsible persons and authorities204;
It is established in Article 22 of the Criminal Law Convention on Corruption of the Council of Europe that each party shall adopt such actions as may be necessary to provide effective and appropriate protection for those who report the corresponding criminal offences established by the convention or otherwise co-operate with the investigating or prosecuting authorities;
It is established in Article 32 of the Convention against Corruption of the United Nations that each state party of this convention shall take appropriate actions in accordance with its domestic legal system and within its means to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences established in accordance with this Convention and, as appropriate, for their relatives and other persons close to them; and Article 33 establishes a provision that each state party of this convention shall consider incorporating into its domestic legal system appropriate actions to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention;
In 2009 the Council of the Organisation for Economic Cooperation and Development (OECD) adopted the Recommendations on further Combating Bribery of Foreign Public Officials in International Business Transactions that encourage member states of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions to employ actions for the protection of whistle-blowers actions in both Public and Private-sectors.
204 Internet access: http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=197963&p_query=&p_tr2=.
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The Committee of Ministers of the Council of Europe adopted the recommendation CM/Rec (2014)7 on Protection of Whistle-blowers in 2014. The Recommendations encourage member state of the Council of Europe to implement a national legal protection regulation of whistle-blowers working in either the Public or Private-sectors, irrespective of the nature of their legal status, or whether they are paid or not.
It should be mentioned that the jurisprudence of European Court of Human Rights (ECHR) interpret reporting illegal activities and violations as a freedom of expression that is protected by the provisions of Article 10 of the European Convention of Human Rights and Fundamental Freedoms. 205
Many and various actions intended to ensure the protection of whistle-blowers are implemented by different countries. Some of them are rather general in nature, others are specific, very concrete, and clearly oriented towards the objectives pursued.
OECD prepared detailed comparative analysis of legal regulation of the protection of whistle-blowers, its practical implementation, and the court practice in member states of OECD206 and published it in 2016.
Three models of how the issue of whistle-blower protection is included into the legal system of a state may be distinguished on its basis:
1. There are no special legal provisions ensuring the whistle-blower protection in the Public-sector: a state has no legal provisions clearly oriented towards the whistle-blower protection and preventing their repression.
2. Various means of whistle-blower protection in the Public-sector: provisions intended to protect whistle-blowers and employ actions to prevent the repression are included in one or more legal acts of the state, but there is no special law on whistle-blower protection. Established provisions do not necessarily ensure the protection of all types of whistle-blowers, employees of the Public-sector.
3. A special legal act intended to protect whistle-blowers in the Public-sector: a special law that is intended to protect whistle-blowers in the Public-sector is adopted by the state, however, it does not include the protection of all types of employees of the Public-sector (for instance, employees of state enterprises and enterprises controlled by the law) and may not include violations of all types, such as crimes related to corruption.
15.4. Reporting Types and Channels
Reporting channels shall be clearly defined and providing a possibility to receive a report in an optimal way, because otherwise a whistle-blower may not consider the reporting channel to be a useful and effective tool to submit or disclose information.
Usually one or more reporting channels are usually employed in whistle-blower protection systems that may be used in resolution to safely submit or disclose information. These types of channels are often intended for the internal disclosure of information, the external disclosure to a competent entity or the external disclosure to the society and the media.
205 See the ECHR decision in the case Guja v. Moldova. Internet access: http://hudoc.echr.coe.int/eng?i=001-85016; The ECHR decision in the case Heinisch v. Germany. Internet access: http://hudoc.echr.coe.int/eng?i=001-105777.206 Committing to Effective Whistle-blower Protection. OECD. 2016. Internet access: http://www.oecd.org/corporate/committing-to-effective-whistle-blower-protection-9789264252639-en.htm.
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Employees that learn about illegal activity must have a possibility to, primarily, report it inside the institution or agency, without fearing potential repression or any negative consequences towards themselves.
It should be noted that a clear and safe way to report an illegal or improper act may pave the way to an open organization’s culture between the person that revealed the information and the head of the organization.
This type of culture of an organization shall be created, primarily, by management’s efforts, but is shall be spread and maintained by the whole organization. The organization shall operate under the assumption that employees will display good will and provide information about improper conduct, and the management of the organization will support the courage of these persons by revealing the information available, will respond appropriately to protect them from negative consequences and will responsibly investigate any allegations of improper or illegal conduct in the organization.
Therefore, the management of the organization by promoting internal reporting may manage actions that are likely to harm the organization’s reputation or cause other damage, if an employee disclosed relevant information by an external channel. However, although employers should support whistle-blowers and respond responsibly and accountably to their information, it does not always happen in reality. In such cases, whistle-blowers are often afraid of the indifference of employers, and believe that there is no other way except for submitting the information to the outside in anticipation of adequate reaction that would aid in stopping illegal activities within the organization.
The fact that whistle-blowers choose external disclosure channels may signal that an organization is dominated by the culture of closure, the management does not employ the necessary actions and does not feel responsible to ensure that the organization’s employees feel safe.
The availability of internal and external information channels creates an opportunity for a whistle-blower to choose how and to whom report the information available. Circumstances of an individual case should lead to the selection of the most suitable reporting channel. There should not be only one reporting channel, so that a whistle-blower after considering all the options could choose a channel to be trusted.
Nevertheless, both (internal and external) levels (channels) should work in collaboration in resolution for potential whistle-blowers to have an opportunity to choose to whom they would like to submit the report. Moreover, a whistle-blower should have a possibility to disclose information via an external channel, if, after disclosing it via an internal channel, no adequate reaction was received after a certain period of time or if no necessary actions were taken in resolution to investigate the submitted facts.
Furthermore, potential whistle-blowers must be able to contact external supervisory authorities without using the internal disclosure mechanism, if they are concerned or have a reason to believe that in the event of failing to safely use reporting channels implemented in the organization, their anonymity or the confidentiality of personal data may not be secured, or reported violations may be covered up.
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Internal disclosure of information(for instance, to the head of an
institution or the authorized representative)
External disclosure of information to a competent entity
(for instance, the SIS, the prosecutor’s office, the labour inspection)
External disclosure of information to the Public
(for instance, the submission of the information to the media, publishing on
the internet)
A direct access to an external channel may be required when it is necessary to report an imminent threat or danger, which would be difficult to perform via internal channels. Nevertheless, irrespective of a disclosure channel, the ability to control to whom report the information is submitted provides better opportunities to a whistle-blower to do so.
15.4.1. Hotlines
Hotlines or online platforms that may be employed by whistle-blowers to provide information on improper or illegal conduct may be initiated and created while implementing the initiative of the Government or Anti-Corruption institutions, as a part of the state’s efforts to solve problems horizontally by identifying instances of corruption or illegal conduct, or by implementing third-party initiatives. The reason for the creation of these mechanisms as well as their main function and objective is to create an opportunity for persons to disclose the information available in an alternative way. In some instances, hotlines provide an opportunity for a person to disclose information anonymously. The world practice also employs systems, when whistle-blowers are associated with unique identification numbers, and it allows them to call the hotline back and receive information on actions performed based on the information provided by them and achieved results. Some countries, while implementing initiative of the Government or Anti-Corruption institutions, have set up hotlines for potential whistle-blowers and created opportunities to report an illegal conduct, particularly, the cases of corruption. Efforts of non-governmental organizations sometimes implement these initiatives, such as “Transparency International”, that operate in many countries.
It is important to note that the whistle-blowers should be informed that appropriate protection actions may be employed only if the information was provided to law-enforcement agencies or other competent authorities, and if a report was made to a public organization, a whistle-blower cannot always count on the feedback and protection guarantees.
For instance, the SIS may be informed about corruption by calling a hotline: by telephone +370 5 266 3333; by fax +370 706 63 307; by e-mail [email protected]; by leaving a message on the website:
https://www.stt.lt/lt/praneskite-apie-korupcija/palikite-pranesima-cia/; by arriving during business hours to a Complains division of the Administration
Department of the Special Investigation Service (6 A. Jakšto St, Vilnius), Kaunas Department of the Special Investigation Service (7 Spaustuvininkų St, Kaunas), Klaipėda Department of the Special Investigation Service (12A Pilies St, Klaipėda), Panevėžys Department of the Special Investigation Service (22 Vasario 16-osios St, Panevėžys), Šiauliai Department of the Special Investigation Service (87 Vytauto St, Šiauliai) or by post to the aforementioned addresses.
15.4.2. Anonymous Reports
Some people believe that an opportunity to disclose information anonymously can encourage reporting in general, especially where due to cultural peculiarities it is unacceptable or there are no institutional safeguards installed, or where the ensured personal protection of a whistle-blower is weak.
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Others believe that anonymous reports may make the reporting system less effective, for instance, difficulties may arise in large volume cases due to the lack of information and limited access to a feedback from the whistle-blower. Moreover, a reliability aspect should also be considered, because in the absence of the possibility to hold a whistle-blower accountable, a person that submits the information anonymously may act irresponsibly and provide information that does not correspond to reality. Therefore, the time is wasted by competent authorities in resolution to verify the facts, etc.
Moreover, sometimes it is believed that it is easier to protect the whistle-blower when the identity is known, because is a crucial factor for applying protection actions to a particular person. It should be noted that anonymity does not guarantee that the source of the information will not be disclosed. After the identification of such persons, the fact that they had acted anonymously can be considered as an expression of bad faith and it may pose a real risk to them.
There are also those who think that the laws on whistle-blower protection encourage employees to speak up and reveal their identity, while mistakenly believing that they are protected.
The differences of opinion imply that not all countries create conditions for whistle-blowers to disclose information anonymously.
Even though anonymity can provide an incentive to whistle-blowers to reveal the available information, a part of whistle-blower protection systems does not anticipate anonymous reports or it is stated they will not be acted upon.
Hotlines by which the available information can be submitted anonymously are quite common.207
Many existing whistle-blower protection systems protect the identity of whistle-blowers by ensuring the confidentiality of personal data. The same approach is attempted to be implemented in Lithuania, too. It is proposed to employ legal acts to provide opportunities for individuals who report on corruption-related violations already performed or currently being performed to ensure the confidentiality of personal data.
In some institutions of Lithuania this type or practice is already employed. For instance, the Report Submission to the Special Investigation Service Description208 establishes a transfer of the submitted information on a potential violation of norms of legal acts to another entity in accordance with its competence without submitting the personal data of a whistle-blower if it is requested, as well as by the initiative of the Special Investigation Service (when there is a reason to believe that disclosure of personal data of the person that submitted the report could endanger the working, official, business or other legitimate interests of the person, their family members, close relatives).
It is believed that after implementing a legislative initiative on ensuring the anonymity of whistle-blowers, the number of persons reporting on violations may significantly increase and the level of corruption-related offences may decrease. This would not only prevent the improper use of state property and budget waste, but also would also certainly increase the transparency of the Public-sector, the investment attractiveness of our country.
207 Internet access: http://www.skaidrumolinija.lt/gaires/kurkreiptis/. 208 The Resolution No. 2-172 adopted by the director of the Special Investigation Service of the Republic of Lithuania (later amended) on 17 May, 2011. Internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.51E21CA8C304/yDkdvjnYsD.
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15.5. What Is the Best Way to Protect Whistle-blowers in Lithuania?
A report on corruption is a report on a case of corruption already performed or currently being performed, or the risk of a possible corruption case stemming from a person, group of persons or a community. The mechanism of reporting on cases of corruption is a system of institutions and organizations that ensures the reporting of cases of corruption, during the operation of which these reports are properly reviewed, and whistle-blowers receive a response.
An insufficiency of the legal regulation of the whistle-blower protection is perceived in Lithuania. There is not enough attention paid in the Public-sector to it, and whistle-blowers are not actively encouraged to report observed violations in a workplace.
Persons that report on potential violations in their workplace do not have a clear legal protection, if they are not acknowledged as witnesses in criminal proceedings. According to studies, the main reason of the evasion to report corruption is the society’s belief that eventually whistle-blowers become the ones that suffer the most.209 The best practice identifies such possible legal methods of protection of whistle-blowers: the protection from an unjustified dismissal (it establishes that, if the employer is informed that whistle-blower protection is employed regarding this person, the person cannot be dismissed, for instance, two years after the submission of the report); the protection from a disclosure of a whistle-blower’s identity; the limitation of civil liabilities of a whistle-blower; the protection from intimidation and harassment for a whistle-blower and their relatives. In resolution to encourage reporting in Lithuania it is necessary to establish clear standards to be able to inform whistle-blowers on what minimal legal protection they can expect.
In accordance with the assessment made by the Lithuanian division of the “Transparency International”, when selecting any of legal regulation models, the most important in Lithuania is (1) to ensure the security and reliability of channels for reporting violations within institutions; (2) to protect whistle-blowers from civil liability in defamation lawsuits and (3) to guarantee the anonymity of whistle-blowers in practice. Furthermore, it is very important (4) for heads of state institutions to adopt a clear position that whistle-blowers are supported and encouraged in institutions managed by them. To achieve the following actions must be performed:
1. To prepare general operation and security guidelines for the internal reporting channels in institutions.
One of the most important principles of an effective system of reporting violations of law is secure, easily accessible, and clear channels for reporting violations. As stated above, reporting channels can be “external” (e. g., a report on a corruption case may be submitted to the Special Investigation Service) or “internal” (e. g. a report of a conflict of public and private interest in a specific institution may be submitted to the head of this institution or the authorised representative).210
Currently, the only document regulating the field of internal reporting channels is a Government resolution mandatory to institutions accountable to the Government and recommended to others211. The Government, by the resolution No. 1287 adopted on 24 October, 2012, obligated
209 A study “The Lithuanian Map of Corruption” was conducted by an Institution of Public Opinion and Market Research “Vilmorus” in April-May of 2014 initiated by the Special Investigation Service of the Republic of Lithuania, http://www.stt.lt/documents/soc_tyrimai/Gyventojai_BENDRAS.pdf. 210 Article 14 of the Recommendations CM/Rec (2014)7 on Protection of Whistle-blowers adopted by the Committee of Ministers of the Council of Europe on April 30, 2014.211 http://www.lrv.lt/Posed_medz/2012/121024/14.pdf.
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state institutions accountable to the Government to choose one of the reporting channels, i. e. by phone or internet, as well as to establish the procedure of receiving and processing the submitted information.212
It is necessary to develop common guidelines of standards (to improve the existing procedures and broaden the scope of application) and to ensure that reporting channels implemented in institutions function more safely and security standards are informed about clearly213:
1) it must be stated clearly where and how reports on observed potential corruption cases may be submitted;
2) a public and clear position of heads of state institutions that reporting of observed potential corruption or other violations is supported and encouraged;
3) if an institution has a separate reporting channel, it is necessary:– to clearly state who is responsible for monitoring this channel, who receives and
processes the information submitted by this channel;– to clearly state and explain the nature of this channel, explaining whether a person may
submit a report anonymously, what can one expect in every separate case and what are the differences between types of reporting;
– to clearly state how the information related to the authorship will be protected; – to indicate whether a response will be given to a person who submitted a report and how
will it be done. 2. To protect from civil liability in defamation lawsuits if a whistle-blower, while
submitting a report, had reasonable grounds for believing that the information was correct.One of the dissuasive circumstances of reporting on violations of law is a threat of civil
liability in defamation lawsuits214. A whistle-blower may be obligated to compensate the damages, if it will not be proved that the information about a person that was spread is correct. A direct exception applies to reports on public figures: if a whistle-blower spreads the information about a public figure, the whistle-blower is exempt from liability if they prove that they acted in good faith.215 Therefore, if a person seeks to report on a corrupt conduct of a private person, they may be dissuaded by the fact that they may be obligated to compensate the damages. This type of situation does not encourage to report on potential violations of private persons, because the burden of proof (due to honesty or the accuracy of facts) lies on the whistle-blower. Nevertheless, whistle-blowers are rarely completely confident regarding the correctness of the information and even more rarely know exact standards of proof in courts, i.e. what may seem to be proven to an average person will not necessarily be proven by the court hearing the proceedings.
In countries that employ an advanced whistle-blower protection, whistle-blowers are protected if, while providing the information on violations, they reasonably believed that the information is correct. Whether a person informed about a violation reasonably believing that the
212 Articles 5, 7, 8 of the Description of Submitting and Processing the Information Regarding Violations approved by the Resolution No. 1287 on the Description Approval of the Submitting and Processing the Information Regarding Violations adopted on October 24, 2012 by the Government of the Republic of Lithuania.213 The Recommendations are prepared in accordance with the study conducted by TILD in 2015. The whole text of the study is available on: http://www.transparency.lt/wp-content/uploads/2015/11/pranesimu_kanalai_lietuvoje_informavimo_standartu_analize1.pdf.214 Article 2.24 of the Civil Code.215 In judicial practice the following persons were recognized as being public figures: civil servants, judges, members of political parties, heads of sports federations, large and significant private companies, etc. Profit-making private legal entities, their employees, owners are not considered to be public figures.
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information is correct, is decided based on evidence that was available for this person at the time of reporting.216 In addition, the Council of Europe recommend this criterion.217 Furthermore, it is usually presumed that the information received is valid until the contrary is proven, i. e. a whistle-blower does not need to prove the legality of reporting.218
It should be noted that a whistle-blower may be liable to civil proceedings for discrediting honour, dignity, and business reputation only if it is proven that the whistle-blower acted in bad faith.
3. To guarantee a non-disclosure of the identity of persons that reported corruption-related violations of the law.
A possibility for a whistle-blower to choose not to disclose their identity is one of the most effective whistle-blower protection actions.219 A guarantee of a whistle-blower identity non-disclosure protects from retaliation, because an infringer simply does not know who disclosed the information on violations committed by them. A whistle-blower identity protection is guaranteed in Estonia, Czech Republic, Slovenia, Hungary. In addition, such whistle-blower protection actions are recommended by the Council of Europe.220
Currently, the identity protection applying partial anonymity and anonymity is only guaranteed to victims or witnesses in Lithuania (Articles 198, 199, 1991 of the Code of Criminal Procedure).
It should be noted that despite the absence of a comprehensive regulation, there are some options employed at the institutional level to ensure the confidentiality of personal data if the disclosure of a whistle-blower’s personal data could endanger their or their close relatives’ work, service, business, or other legitimate interests. The Supreme Court of Lithuania has repeatedly stated that citizens should be able to inform the competent public officials about the conduct of public servants and officials that they consider to be inappropriate or illegal. This also applies to cases where a person, using the right given to them by the law lodges a complaint regarding actions of officials, acts in good faith, although mistaken in the legal assessment of the acts. It is also emphasized that disproportionate prosecution of persons and penalties for complaints against officials only because the investigation did not confirm the allegations of their misconduct, would restrict human rights, and could dissuade the protection of these rights in the future.221
Criteria and standards of the protection of persons submitting reports that correspond to the public interest to authorized institutions regarding illegal activity of public or private persons, are formulated by the European Court of Human Rights (ECHR) as well.222 The main evaluation criteria of these reports are the following: the importance of information disclosure to the Public
216 Transparency International, “Whistleblowing in Europe. Legal protections for whistle-blowers in Europe”, p. 87, footnote 148.217 Article 22 of the Recommendations CM/Rec (2014)7 on Protection of Whistle-blowers adopted by the Committee of Ministers of the Council of Europe on April 30, 2014.218 Paragraph 8, Article 5 of the Law on protected reports on violations of the Republic of Ireland adopted in 2013. 219 Transparency International, “Whistleblowing in Europe. Legal protections for whistle-blowers in Europe” http://www.transparency.org/whatwedo/publicpublication/whistleblowing_in_europe_legal_protections_for_whistle-blowers_in_the_eu. 220 p. 22 of the Recommendations CM/Rec (2014)7 on Protection of Whistle-blowers adopted by the Committee of Ministers of the Council of Europe on April 30, 2014. https://wcd.coe.int/ViewDoc.jsp?id=2188855&Site=CM. 221 The resolution No. 2K-7-336/2010 adopted on November 18, 2010; the Resolution No. 2K-344/2013 adopted on October 1, 2013 by the panel of judges of the Supreme Court of Lithuania. 222 See the ECHR decision in the case Guja v. Moldova. Internet access: http://hudoc.echr.coe.int/eng?i=001-85016; The ECHR decision in the case Heinisch v. Germany. Internet access: http://hudoc.echr.coe.int/eng?i=001-105777.
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interest; the existence of alternative ways of submitting information; information accuracy; honest operation of a whistle-blower; the damage suffered by the person whose actions were reported.
It should also be noted that, according to the Point 5 of Paragraph of 2 Article 23 of the Law on Legal Protection of Personal Data of the Republic of Lithuania, the data subject’s rights, including the right to be informed about the processing of personal data and the right to access their personal data, may be limited if it is necessary for ensuring the protection of rights and freedoms of other persons.
Therefore, the provision of the personal data of persons that contact the authorities with reports of possibly committed corruption-related violations to third parties may be significantly limited in resolution to ensure the protection of the rights and freedoms from threats that could arise due to a public disclosure of their personal data or the fact that they submitted a report to an institution.
Nevertheless, the institutional regulation is not enough. The international practice shows that in resolution for employees to boldly share information about potential corruption or other violations of their colleagues, not only a clear procedure ensuring that it can be done safely, but also a clear position of the management promoting such organizational culture. It must be emphasized during various related staff training, it can be discussed in the internal code of ethics of the institution or in other internal guidelines.
15.6. Awareness-Raising
Awareness-raising is an important element of the whistle-blower protection system that allows changing the view of whistle-blowers, eliminating negative attitudes and positions regarding the reporting any illegal or fraudulent conduct. Among other things, it encourages whistle-blowers to understand the essence and operation of the whistle-blower protection mechanism. More talking about reports and whistle-blowers protection, for instance, in the context of health care, can improve public attitude towards the whistle-blowers as defenders of the public interest, instead of individuals that report on their colleagues.
It is agreed that an open culture of an organization and the legal regulation of whistle-blower protection must be strengthened by awareness-raising actions, communication, training, and appropriate assessment of organization processes. Clear and effective implementation of communication methods with employees can lead to mutual trust between the employer and the employee, it allows the employee to be clear about how the whistle-blower protection mechanisms and safeguard actions employed within the organization would be applied to them, thus leading them to not feel indifferent to illegal or fraudulent conduct being carried out within the organization.
In resolution for the whistle-blower protection mechanism to function properly and for the purposes intended, organizations must regularly review implemented and applied whistle-blower protection systems and assess the effectiveness of the implementation. If required, it is necessary to improve the internal regulation by optimizing the protection system in resolution for identified defects to be rectified.
A systematic statistics and information gathering would ensure the objectivity of the whistle-blower protection system assessment. In resolution to achieve this information on the number of reports received; on the decisions made (whether a report was accepted, rejected,
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investigated, proved to be true); on the reward for whistle-blowers (if the reward is provided); on conducted awareness-raising actions (indicating target groups and the number of persons); on the investigation duration of a report (the duration is calculated from the date of receipt of a report to the moment of the adoption of the final decision).
In addition to the actions, institutions or organizations may also organize and conduct studies in resolution to assess the effectiveness of whistle-blower protection mechanism.
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16. ANNEXES
16.1. Role of Diplomatic Missions of the Republic of Lithuania in Limiting Bribery Abroad
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Transparent business – responsible business
Motivating honest employees
Long-term goal
Operation in accordance with the Ethics Code
Disclosure of performance reports
Analysis of consequences of good and bad practices
Let’s promote honest business.Report about corruption-related
incidents:
by e-mail [email protected]; http://www.stt.lt/lt/
praneskite-apie-korupcija by a hot line (+370) 5 266 3333
The SIS operation:
www.stt.lt; https://www.facebook.com/LRSTT
Transparent business – responsible business
Bribery of a foreign officer is
a crime
THE SPECIAL INVESTIGATION SERVICE OF THE REPUBLIC OF LITHUANIA
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Members of the Working Group of Bribery in International Transactions of the Organization for Economic Co-operation and Development (OECD): Ireland Argentina Australia Austria Belgium Brazil Bulgaria Czech Republic Chile Denmark Great Britain Estonia Greece Iceland Spain Italy Israel Japan USA Canada Columbia Latvia Poland Luxemburg Mexico N. Zealand Norway Holland
South African Republic S. Korea Portugal France Russia Slovakia Slovenia Finland Sweden Switzerland Turkey Hungary Germany
RECOGNIZE AND MANAGE THE RISK OF CORRUPTION
How to assess a risk?
Will the transaction harm the reputation of the company?
Does the transaction cause damage to the public interest?
Does the transaction correspond to the company’s values?
Is the transaction transparent and legal?
Is the company ready to take the responsibility for its actions?
Am I ready to take responsibility for my actions?
BRIBERY OF FOREIGN OFFICERS
IT IS PROHIBITED TO BRIBE DURING INTERNATIONAL TRANSACTIONS IN RESOLUTION TO GAIN ACCESS TO A FOREIGN MARKET AND TO
OPERATE ABROAD.ACCORDING TO THE ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT (OECD) CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS:“it is a criminal offence for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in resolution that the official act or refrain from acting in relation to the performance of official duties, in resolution to obtain or retain business or other improper advantage in the conduct of international business”.
THE CONVENTION ESTABLISHES: AN OBLIGATION FOR MEMBER STATES TO FIGHT THE
BRIBERY OF FOREIGN OFFICERS. IMPLEMENTATION OF OFFENSE ACTIONS TO
NATURAL PERSONS OR LEGAL ENTITIES FOR THE BRIBERY OF FOTRIGN OFFICERS
INTERNATIONAL CO-OPERATION FOR FIGHTING CORRUPTION
MORE INFORMATION: HTTP://OECD.ORG/CORRUPTION
THE ROLE OF DIPLOMATIC MISSIONS OF THE REPUBLIC OF
LITHUANIA IN LIMITING BRIBERY ABROAD
INSTANCES OF BRIBERY OF FOREIGN OFFICERS IS INVESTIGATED BY THE
SPECIAL INVESTIGFSTION SERVICE (SIS) OF THE REPUBLIC OF LITHUANIA
DIPLOMATIC MISSIONS INFORM ABOUT POTENTIAL BRIBERIES KNOWN TO THEM:
REGARDING THE INFORMATION DENOTED IN THE MEDIA OR OTHER SOURCES THAT DISCLOSE POSSIBLE BRIBERY OR PARTICIPATION IN SUSPICIOUS TRANSACTIONS CONDUCTED BY FOREIGN OFFICERS OR LITHUANIAN ENTERPISES (INCLUDING SUBSIDIARY COMPANIES AND BRANCHES) OR THEIR REPRESENTATIVES, THE MISSIONS DIRECTLY INFORM A COMPETENT RL SERVICE.
DIPLOMATIC MISSIONS CONSTANTLY INFORM REPRESENTATIVES OF LITHUANIAN ENTERPRISES OPERATING OR INVESTING ABROAD THAT:
1. THE PROVISION OF A BRIBE TO FOREIGN NATURAL PERSONS OR LEGAL ENTITIES INCURS THE SAME LIABILITY AS IN LITHUANIA.
2. A LEGAL ENTITY IS ALSO CRIMINALLY LIABLE FOR CRIMINAL ACTIVITY COMMITTED BY A NATURAL PERSON.
3. DIPLOMATIC MISSIONS SHARE INFORMATION / LINKS ON CORRUPTION REGLAMENTATION IN A HOST COUNTRY UPON REQUESTS SUBMITTED BY BUSINESS ENTERPRISES AND ORGANIZATIONS.
Corruption prevention
Management of conflict of
interestTools necessary in
resolution to ensure transparent business
in Lithuania and abroad
16.2. Survey Intended to Identify Tolerance of Corruption Prepared by the State Tax Inspectorate Under the Ministry of Finances
1. You are employed by: o STI under MoFo Alytus CSTIo Kaunas CSTIo Klaipėda CSTIo Marijampolė CSTIo Panevėžys CSTIo Šiauliai CSTIo Tauragė CSTIo Telšiai CSTIo Utena CSTIo Vilnius CSTI
2. Your duration of employment in STI: o less than 1 yearo 2 yearso 3-4 yearso 5-6 yearso 7-8 yearso 9–10 yearso 10-15 yearso 16-20 yearso more than 20 years
3. Have you heard of corruption prevention actions employed by the STI? o Yes, I have*o No, I have not
*Please, indicate what corruption prevention actions you have heard of (write down)
4. If you have not heard of corruption prevention actions, please indicate the possible reasons : o I did not know that the STI carries out activities related to corruption prevention o For me, it is irrelevant, because it is not directly related to my worko I do not know where to find this type of informationo Other
5. Would you personally report a known case of corruption? o Yes, I would
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o No, I would noto It is difficult to say, it depends on the circumstances
5.1. Indicate the reason would you not report :o I do not know to whom to reporto There is no point in reporting, because persons related to it will not be convictedo Those who report suffer the most in the endo Everyone knows about these cases, but no one reports themo The case is so insignificant, there is no point in reporting ito I do not want to betray anyone or cause additional problemso I am not sure if it is a case of corruptiono It is difficult to submit a report, and it takes timeo I do not feel safe reporting (please indicate a reason you do not feel safe)
6. Do you know who to contact in resolution to report aa corruption-related incident ?o Yes, I do (put down the person or entity that should be contacted)o No, I do not
7. Would you like to participate in the activity related to the anti-corruption ?o Yes, I would want to participateo No, I would not want to participateo It is difficult to say, I do not knowo I am already participating
8. What do you think, is it common in the STI when a person wants to give additional reward to the STI employees and officials?
o Yes, it is commono No, it is not commono I cannot answer (I do not know)
9. Has there been a situation when you or your colleague was offered a bribe? Or have you in any other way faced corruption?
o Yes, there haso No, there has not
9.1.Have you reported that you or your colleague was offered a bribe or faced corruption in any other way?
o Yes, I haveo No, I have not
9.1.1. If you have reported it, indicate who you reported it to :o Management o Direct supervisoro The Special Investigation Service
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o Other
9.1.2. Indicate the reason why you have not reported ito I did not know to whom to reporto There was no point in reporting, because persons related to it would not be convictedo Those who report suffer the most in the endo Everyone knows about these cases, but no one reports themo The case is so insignificant, there is no point in reporting ito I did not want to betray anyone or cause additional problemso I am not sure if it was a case of corruptiono It is difficult to submit a report, and it takes timeo I did not feel safe reporting (please indicate a reason you did not feel safe)
9.2. If you faced corruption in the workplace in the future, would you report it? o Yes, I wouldo No, I would noto I cannot answer (I do not know)
9.2.1. Indicate to whom you would primarily report it : o Managemento Direct supervisoro Special Investigation Serviceo Other (specify)
10. Have you given a bribe in the last 5 years ? o Yes, I haveo No, I have not
11. How old are you? o Less than 30o 31–40o 41–50o 51–60o 61 or more
12. What is your education? o Higher university educationo Higher non-university educationo Upper secondaryo Secondary
13. Your suggestions and comments on the execution of corruption prevention by the STI: (write down)
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16.3. Disclosure of the Note of an Anti-Corruption Assessment of a Draft-Law
An assessor must log in into LIS, choose a link in the main LIS “Other documents”, choose
the link “New other document” in the section “Preparation”.
After opening the tab “New other document”, the following fields need to be filled in:
1) The title: if it is copied from the note, the letters can be turned into capital by pressing
.
2) The document type: choose “The note of an Anti-Corruption assessment”.
3) Registration number and date: the registration number and the date are to be indicated.
It is a good practice if notes of an Anti-Corruption assessment have different numbers in an
institution.
4) “Preparing institution”: the workplace of the note drafter is to be indicated.
5) “The drafter”: name and surname of the note drafter (the assessor) are to be indicated.
6) “The operator”: either the name of a person who published the note or the name and
the surname of the drafter (the assessor) if the drafter (the assessor) manages the note data should be
indicated.
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7) The content of the document: choose “The main document”223 and attach signed and
saved conclusions in the format of “MS Office Word”. An additional PDF copy can also be
attached.
While completing the form, you should always indicate, that the document will be
“public”. It is not recommended to check the field “Electronic document”, because the published
note will be shown only as an electronic document and not the “MS Office Word” variant.
After all fields, have been completed, click “Save”. Saved note of an Anti-Corruption
assessment of a draft-law must be linked with the assessed draft-law, it can be done by clicking
“Manage” and “Link documents”. In the open selection window choose “Draft (link from an
accompanying document)”.
223 If the certificate of an Anti-Corruption assessment is uploaded as a separate document. If the assessed draft is uploaded as the main document, the certificate of an Anti-Corruption assessment is uploaded not as the main document, but the link “The certificate of an Anti-Corruption assessment” needs to be chosen in the system, afterwards the certificate will be linked to the assessed draft.
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An open will appear, where the draft-law has to be found, check it and click “Link (the
chosen)”.
The attached and linked can be published by clicking “Manage” and “Finish the
preparation of the draft (publish)”224.
224 The attention should be paid to the fact that after publishing the certificate of an Anti-Corruption assessment, the published data may be edited at any time.
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A note of an Anti-Corruption assessment of a draft-law may be published in the following
manner: firstly, the assessed draft-law may be published and later it can be linked with the note of
an Anti-Corruption assessment.
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16.4. Examples of Anti-Corruption Assessments of Draft-Laws of State or Municipal Institutions
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
filled in by the assessor of the draftfilled in by the
direct drafter of the draft-law
filled in by the assessor of the
draft
1. The draft-law does not create exceptional or unequal conditions for entities related to the implementation of the legal act
The draft-law does not create exceptional or unequal conditions for heads of budgetary institutions. In contrast, the draft-law seeks to establish heads of budgetary institutions working under an employment contract to be appointed to a position for a four-year term by the means of a tender. It is also envisaged that the performance of heads of budgetary institutions who work under an employment contract will be assessed annually based on pre-determined tasks, deliverables, and assessment indicators. It is also proposed to establish cases when a person cannot be a head of a budgetary institution, in resolution to achieve that only persons with impeccable reputation would be appointed to positions of heads of budgetary institutions.
□ acceptable
□ unacceptable
2. The draft-law of a legal act has no defects or provisions that will allow ambiguous interpretation and application of the legal act
The draft-law of a law has no defects or provisions that will allow ambiguous interpretation and application of the legal act
□ acceptable
□ unacceptable
3. The draft-law establishes that the entity that makes
The entity making the decision on the allocation of rights is separated from the
□ acceptable
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Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
decisions on the allocation of rights, restrictions, sanctions, etc. is separated from the entity that controls (monitors) the legality of the decisions and their implementation
entity that controls the legality of these decisions the performance assessment of a head of a budgetary institution working under an employment contract is to be carried out by an institution performing rights and duties of an owner or its authorized person. A head of a budgetary institution has the right to apply to the State Labour Inspectorate, the Labour Dispute Commission, or the courts according to a standard procedure regarding the infringement of rights.
□ unacceptable
4. The powers (rights) of an entity established by the draft-law correspond to functions (duties) being performed by the entity.
The powers of institution performing rights and duties of an owner correspond to functions performed by it (see Article 4 of the Law on Budgetary Institutions of the Republic of Lithuania).
□ acceptable
□ unacceptable
5. A final list of decision-making criteria (instances) is established in the draft-law
The draft-law establishes that heads of budgetary institutions working under an employment contract are appointed by tender to a four-year term. The performance of heads of budgetary institutions is assessed annually. A final list of instances when a person cannot be appointed to a position of the head of a budgetary institution is established in the draft-law.
□ acceptable
□ unacceptable
6. A final list of motivated cases when during the decision-making exceptions are applied is established in the draft-law.
The draft-law establishes that at the end of the first term of office the employment contract of a head of a budgetary institution working under an employment contract is renewed for a second four-year term without a tender for the position of a head of a budgetary institution if the performance during the first term was assessed as good or very good.
□ acceptable
□ unacceptable
147
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
Furthermore, the draft-law establishes that after appointing a head of a budgetary institution working under an employment contract, the annual tasks, and deliverables as well as their assessment rates are to be determined within one month of their appointment to office, except for the cases when less than 6 months remain until the end of a year. In such cases the annual tasks and deliverables as well as their assessment rates of a head of a budgetary institution working under an employment contract are to be determined by January 31 of the following year.
There is also established an exception for the performance assessment: the institution performing rights and duties of an owner or its authorized person every year by January 31 assess the performance of heads of budgetary institutions working under an employment contract of a preceding year in accordance with prescribed annual tasks, deliverables, and assessment indicators (with the exception of heads of institutions that were appointed during the last 6 months of the preceding year).
7. The draft-law establishes the procedure of decision-making and formalization, as well as the publication of the decisions.
The law itself does not establish neither the procedure of decision-making and formalization nor the publication of the decisions, however, it is established for Tender positions that are included into the list of tender positions in the description of organizational procedure
□ acceptable
□ unacceptable
148
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
approved by the Resolution No. 301 “On the Establishment of the List of Tender Positions in State and Municipal Enterprises, State and Municipal Institutions that Are Financed by Budgets of State, Municipal and State Social Insurance Funds and Other Funds Established by the State, and public institutions owned by the State of a Municipality and the Approval of the Description of the Organizational Procedure of Tender Positions Included in the Tender Positions List” adopted on March 21, 2007. The assessment of heads of budgetary institutions shall be carried out in accordance with the procedure established by the Government.
8. The procedure of decision-making on insignificance is established by the draft-law
Not regulated. □ acceptable
□ unacceptable
9. If based on the envisaged regulation, decisions are to be made by a collegial entity, the draft-law establishes the following characteristics of collegial decision-making entity:
9.1. an exact number of members that would ensure the objectivity of the operation of a collegial decision-
Not regulated. □ acceptable
□ unacceptable
149
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
making entity;
9.2. if members are appointed by different entities, the proportional share of members appointed by each entity that would ensure a proper representation of interests of the state as well as the objectivity and transparency of the operation of a collegial decision-making entity;
9.3. the mechanism of member appointment;
9.4. the rotation of members, number of terms and the duration;
9.5. the nature of the operation with respect to time;
9.6. the individual responsibility of members
10. Administrative procedures are mandatory in resolution to implement the provisions of a draft-law, a detailed procedure for their application is provided.
The appointment of a head of a budgetary institution working under an employment contract is regulated for Tender Positions that are included into the list of tender positions in the description of organizational procedure approved by the Resolution No. 301 “On the Establishment of the List of Tender Positions in State and Municipal Enterprises, State and Municipal Institutions that Are Financed by
□ acceptable
□ unacceptable
150
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
Budgets of State, Municipal and State Social Insurance Funds and Other Funds Established by the State, and public institutions owned by the State of a Municipality and the Approval of the Description of the Organizational Procedure of Tender Positions Included in the Tender Positions List” adopted on March 21, 2007.
The procedure of the performance assessment of heads of budgetary institutions working under an employment contract shall be established by the Government.
11. A final list of motivated cases when the administrative procedure is not applied is established in the draft-law.
The draft-law established that other special laws may establish a different procedure for the appointment to positions, the number of terms and the performance assessment of heads of budgetary institutions.
□ acceptable
□ unacceptable
12. The draft-law establishes specific time limits for administrative procedures and decision-making required for the implementation of its provisions.
The draft-law establishes that annual tasks are prescribed for heads of budgetary institutions working under an employment contract each year by January 31, annual tasks for new heads of budgetary institutions working under an employment contract are prescribed within one month from their appointment to a position, and if less than 6 months remain until the end of a year, annual tasks shall be prescribed by 31 January of the following year. If necessary, prescribed annual tasks for the current year may be amended or complemented once, but not later than
□ acceptable
□ unacceptable
151
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
July 1.
The draft-law also establishes that the operation of heads of budgetary institutions working under an employment contract is assessed annually by January 31 (except for heads of institutions that were appointed to their positions in the last 6 months of the preceding year).
After two subsequent unsatisfactory assessments of the performance of a head of a budgetary institution working under an employment contract, the institution performing rights and duties of an owner decides to terminate the employment contract within 10 business days from the last performance assessment without paying severance benefits.
13. The draft-law establishes motivated possibilities to suspend and renew time limits
Not regulated. □ acceptable
□ unacceptable
14. The draft-law establishes the procedure of the publication of administrative procedures
The law itself does not include the publication of decisions, however, the call for tender for a position of a head of a budgetary institution is established for Tender Positions that are included into the list of tender positions in the description of organizational procedure approved by the Resolution No. 301 “On the Establishment of the List of Tender Positions in State and Municipal Enterprises, State and Municipal Institutions that Are Financed by Budgets of State, Municipal and State
□ acceptable
□ unacceptable
152
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
Social Insurance Funds and Other Funds Established by the State, and public institutions owned by the State of a Municipality and the Approval of the Description of the Organizational Procedure of Tender Positions Included in the Tender Positions List” adopted on March 21, 2007.
15. The draft-law establishes the procedure of controlling (monitoring) the procedure and clear criteria for its implementation (cases, frequency, recording, the Publication of control results, etc.)
The draft-law does not establish the controlling (monitoring) procedure.
□ acceptable
□ unacceptable
16. The draft-law establishes actions ensuring the transparency and objectivity of control (monitoring)225
The draft-law does not establish the controlling (monitoring) procedure.
□ acceptable
□ unacceptable
17. The draft-law establishes the liability type (disciplinary, administrative, criminal, etc.) of entities related to the implementation of provisions of the draft-law.
Article 41 of the Code of Administrative Violations establishes liability for violations of labour laws.
Article 96 of the Code of Administrative Offences, which came into force on January 1, 2017, establishes liability for violations of labour laws.
□ acceptable
□ unacceptable
225 For instance, rights and obligation of a controlling entity are established clearly and in detail, standardized controlling procedure is established, a demand to record separate stages of controlling procedure ant their results, the rotation of responsible specialists, the direct contact between the entity that controls and the entity that is being controlled without witnesses is prevented, etc.
153
Seq. No.
The criterion
The justification (specific provisions of draft-laws or other legal acts that support a positive reply shall be
indicated or suggestions and comments on reducing the corruption risk of the
specialist who performed an Anti-Corruption assessment of a draft-law)
The amendment of the legislative act carried out in
resolution to reduce the
corruption risk or arguments
provided by the direct drafter of the draft-law on
why the comments and
suggestions were not taken into
account
The conclusion on amendments
or arguments why the draft
was not amended
18. A final list of criteria, in accordance with which penalties (sanctions) for non-performance of provisions established by the draft-law are imposed, as well as a clear procedure for their imposition are established in the draft-law.
Not regulated. □ acceptable
□ unacceptable
19. Other important criteria None □ acceptable
□ unacceptable
2. The draft-law of a legal act has no defects or provisions that will allow ambiguous interpretation and application of the legal act
In the program there are defects that will allow ambiguous interpretation and application of this program It is stated in Paragraph 14 that “the Selection Working Group after evaluating and selecting submitted applications, proposes a specific partial amount of funding to the applicants, taking into account the Municipal budgetary appropriation of the year for financing the Program approved by the Municipal Council”, however, there is no regulation as to how to distribute the total amount of appropriated funds and what part should be allotted to each of the selected applications, i.e. in accordance with what proportion and assessment,
After amending the Paragraph 14 of the Program it is established that the assessment of an application is performed in accordance with the procedure established by the Selection Working Group and clear final assessment criteria and indicators on which the amount of finding to a specific applicant will depend. The director of the Municipality Administration shall approve the form of the application assessment. While assessing and selecting submitted applications, the Selection Working Group, by making procedural decisions, considering the Municipal Budgetary Appropriation for financing the Program approved by the Municipal Council, proposes a
X acceptable
□ unacceptable
154
who deserves to get the most, less and the least out of the total amount. Essentially, this provision will allow interpreting that the Selection Working Group decides on its own discretion how much and who should receive money from the total amount.
Even though the Paragraph 6 of the Program establishes that partial financing may be provided to the applications that comply with the following criteria:
“6.1. the continuity of the submitted programs and the long-term impact intended for the improvement of the competitiveness of Kaunas;
6.2. the number of routes of direct communication with markets of targeted inbound tourism from Kaunas and to Kaunas;
6.3. The average number of routes of direct communication with markets of targeted inbound tourism from Kaunas and to Kaunas per week;
6.4. the offered number of places in markets of targeted inbound tourism in direct communication with Kaunas per month;
6.5. the number of served clients per year”,
However, if no proper comprehensive definitions and maximum awarded points are established, every criterion from this list may be interpreted ambiguously and the criteria may be “adapted” to fit the enterprise that is sought to be allotted more funds.
For instance, it is not clear what is considered to be “continuity of a program”, which method of “continuity” will be assessed as more worthy with respect to receiving more funds. It is not
specific amount of partial funding proportional to the assessment results to applicants. The information required for validating assessment criteria shall be provided by applicants during the submission of applications.
The director of the Municipality Administration approves the form of the application assessment (paragraph 20) where greatest and lowest values of each criterion are specified.
155
established what will be considered to be a “long-term impact intended for the improvement of the competitiveness of Kaunas” and how this long-term impact will be assessed, which action of a number of long-term impact actions are more worthy with respect to receiving more funds. It is not established what is “countries and markets of targeted inbound tourism”, how the number of direct communication routes to and from Kaunas will be calculated, or, for instance, routes active only for a certain time of year will be included into this number. It is not established how the number of routes will be assessed with respect to receiving more funds. It is not established how the average number of offered routes per week and per month will be estimated, how many points will be allocated for biggest numbers during the assessment, it is not clear what is more important with respect to receiving more funds: the average number of routes per week or per month. It is not clear how the greatest number of served clients per year will affect the assessment with respect to receiving more funds.
4. The powers (rights) of an entity established by the draft-law correspond to functions (duties) being performed by the entity.
In paragraph 4.2 of the plan “Kaunas tourism marketing mechanisms plan for 2015-2020”, mechanisms and responsible executors are indicated. As one of the main responsible executors, the Culture and Tourism Development Division of the Municipal Administration that does not even exist after the reorganization of the Municipal Administration Structure performed in 2015 is indicated.
The subdivision of Tourism Development of the Culture and Tourism Development Division of Kaunas Municipality that does not exist anymore is indicated as an institution
The responsible executor is replaced by the Division of Development Programs and Investments in the tourism marketing plan that was submitted for approval.
X acceptable
□ unacceptable
156
monitoring the implementation of the plan in paragraph 5 of “Kaunas tourism marketing plan implementation control and supervision mechanism”. The Culture and Tourism Development Division of the Municipal Administration is indicated as a data source for a system of indicators of plan implementation. Non-existent entities cannot have neither powers (rights) nor functions.
The responsible executor is replaced by the Division of Development Programs and Investments in the tourism marketing plan that was submitted for approval.
5. A final list of decision-making criteria (instances) is established in the draft-law
There is no clear final list of criteria and indicators, as well as their impact on the determination on the proportion (amount) of funds to be provided to a specific enterprise from the total amount of funds dedicated to financing the Program.
The criteria are established in paragraph 6, the assessment will be performed in accordance with the procedure established by the regulation of the working group. Budgetary funds dedicated to the Program shall be allocated proportionally in accordance with the assessment of the application.
X acceptable
□ unacceptable
7. The draft-law establishes the procedure of decision-making and formalization, as well as the publication of the decisions.
The draft-law establishes the formalization of decisions, decision-making on candidates complying (not complying) with tender conditions, winners of the tender, but not the publication of the decisions on tender results.
Paragraph 30 of the provisions of the public procurement for the position of the head physician of the public institution Širvintos primary health care centre states that the information on the tender winner will be published on the Municipality website.
acceptable
□ unacceptable
9.
If according to envisaged regulation, decisions are to be made by a collegial entity, the draft-law establishes the following characteristics of collegial decision-making entity:
9.1. an exact number of members that would ensure
A Selection working group that will assess and select submitted applications as well as will propose a specific amount of partial financing is envisaged by the Program, but the number of its members, proportion of their appointment, appointment mechanism, rotation, number and duration of terms, individual
A working group is established by a resolution of the Municipality mayor as it is established by Paragraph 5 Article 20 of the Law on Local Self-Government of the Republic of Lithuania; the indicated issues will be discussed in the working
X acceptable
□ unacceptable
157
the objectivity of the operation of a collegial decision-making entity;
9.2. if members are appointed by different entities, the proportional share of members appointed by each entity that would ensure a proper representation of interests of the state as well as the objectivity and transparency of the operation of a collegial decision-making entity;
9.3. the mechanism of member appointment;
9.4. the rotation of members, number of terms and the duration;
9.5. the nature of the operation with respect to time;
9.6. the individual responsibility of members
responsibility of members are not specified.
group regulation.
12. The draft-law establishes specific time limits for administrative procedures and decision-making required for the implementation of its provisions.
The time between sending a notification on the participation in candidate selection established in paragraph 14 and when the public procurement shall be organized is not specified.
Paragraph 17 of the provisions of the public procurement for the position of the head physician of the public institution Širvintos primary health care centre states that tender shall be held within 30 calendar days from the last day of document acceptance.
acceptable
□ unacceptable
19. Other important criteria
1. On the time limit indicated in Paragraphs 2 and 3 of Article 213, according to which an operator shall inform the National Public Health Centre in writing or electronically within 24
The note has been considered. The phrasing employed in the draft: “on the day of the disclosure of circumstances or, if it not a business day, the following business day”.
□ acceptable
158
hours. Is it reasonable to inform the Centre if the event occurred on Saturday, considering that the National Public Health Centre is not open for business during the weekend? It would be better to use “to inform on the same business day or no later than the following business day”.
159
16.5. Examples of Anti-Corruption Assessments of Legal Acts and Their Drafts Performed by the Special Investigative Service
On Paragraph 1, Article 681 of the Code of Civil Procedure
Legal norms. When a bailiff seizes debtor’s assets, they estimate its value in accordance with market prices, considering the depreciation and opinions of a debt collector and the debtor participating in the seizure. In the event of the owner or a debt collector disagreeing with the value estimated by the bailiff or if the bailiff has doubts regarding the value of the assets, the bailiff commissions an expert assessment.
The assessment. The meaning of the phrase “estimate its value in accordance with market prices” is not clear: should the estimation of the value performed by the bailiff be understood as statement of certain factual data (for instance, the confirmation of an asset’s market value estimated by an expert asset assessor) or as giving a bailiff a right to estimate the market value of an asset by oneself.
The activity of property valuation, basics and methods, requirements for asset assessors and their liability are regulated by the Law of the Republic of Lithuania on Property and Business Valuation Framework, which establishes that only natural persons and enterprises can perform the valuation of assets complying with relevant requirements (qualification requirements and other requirements established by the law). It is obvious that bailiffs do not meet the requirements established to asset assessors by legal acts, therefore, our opinion is that the bailiffs’ right to assess the value of an asset established by article 681 of CCP is not consistent with the provisions of the Law of the Republic of Lithuania on Property and Business Valuation Framework.
Article 681 of CCP establishes a possibility for a bailiff to commission an expert assessment of the value of a seized asset: bailiffs may commission such an assessment when they have doubts regarding the value of a seized asset, also in the event of the owner or a debt collector disagreeing with the value estimated by the bailiff or with conclusions of an already performed expert assessment. However, if an estimation of a value is performed by a bailiff and a debtor or a debt collector express objections and the amount necessary for an expert assessment to be performed is not transferred into the bailiff’s deposit account (although later incurred costs would be recovered from the debtor), the bailiff’s refusal to commission an expert assessment shall not be appealed and the asset value is estimated in accordance with the bailiff’s estimated value. Likewise, the bailiff’s right to refuse to commission an additional or repeated expert assessment shall not be appealed as well. In our opinion the provisions increase possibilities of a bailiff’s abuse of power.
In some cases, the valuation of a seized real estate in accordance with the market value is based only on the data from notes (on buildings registered at Real Property Register and Cadastre and the rights to them) provided by Real Property Register and Cadastre regarding the average market value of real estate. This data often does not correspond to the actual market value of a real estate, so in our opinion, this practice is flawed from the point of view of bailiffs’ operating efficiency.
Suggestions. To detail the procedure of asset valuation in accordance with the market value in the execution of decisions manual (for instance, to establish that a bailiff may estimate a value only of minor property (household appliances, furniture, etc.) in accordance to market value
160
and in the absence of objections from the debtor or the debt collector). To establish that the market value of other types of property shall be estimated only by expert asset assessors (except for the cases when a debtor submits documents that justify the real estate value in accordance with the market value and there is no objection from the debt collector). To give up the provisions enacting the bailiff’s refusal to commission an expert assessment to determine the value of an asset not being a subject to appeal, and to oblige the bailiff to motivate a refusal for a commission of an additional expert asset valuation.
On the Procedure Description of the Appointment to a Position of a Freelance Environmental Inspector
The legal norms. The Commission on the appointment to a position of a freelance environmental inspector shall consist of a chairperson of a Commission and at least two members. Decisions of a Commission shall be deemed adopted, if more than half of Commission members vote for them. If the Commission votes are distributed equally, the deciding vote is cast by the Commission’s chairperson. The Commission shall examine, evaluate, and make suggestions for freelance environmental inspector empowerment and extension of powers.
Meetings of the Commission on the appointment to a position of a freelance environmental inspector shall be held at least twice a year, after the receipt of at least 10 requests within 20 working days from the submission of the last application.
Minutes of meetings of the Commission on the appointment to a position of a freelance environmental inspector shall be kept. The minutes shall be signed by all Commission members who participate in the meeting.
The chairperson and members of the Commission on the appointment to a position of a freelance environmental inspector of the State Environmental Protection Authority shall be appointed by the resolution of the director of the State Environmental Protection Authority.
The chairperson and members of the Commission on the appointment to a position of a freelance environmental inspector regional environmental protection departments under the Ministry of Environment shall be appointed by the resolution of directors of the regional environmental protection departments under the Ministry of Environment.
The assessment. Paragraphs 3-7 of the procedure description regulate issues regarding the establishment and operation of the Commission on the appointment to a position of a freelance environmental inspector (hereinafter the Commission), however, in our opinion, the legal regulation established by the aforementioned provisions is insufficient and requires further improvement.
Based on paragraph 3 of the Procedure Description, the Commission shall consist of a chairperson of the Commission and at least two members. In our opinion, in resolution to ensure the transparency and objectivity of adopted decisions, the minimal number of the Commission members should be increased (for instance, to the number of five), whereas the situation when the Commission may consist of three persons, cannot always ensure the implementation of the aforementioned objectives (also see the following comments).
The Procedure Description does not establish whether the Commission may adopt decisions if not all the members are present during the decision adoption procedure (i.e. a reduced number of members of the Commission participate). In our opinion, the provision 3 of the Procedure Description establishing that decisions of the Commission shall be deemed adopted if
161
more than a half of Commission members vote for them may be understood ambiguously, for instance, the aforementioned provision may be perceived not only as the Commission’s decisions are legitimate if the majority of the Commission votes for their adoption but also that the Commission’s decisions are legitimate if they are adopted when more than a half of members are present during the adoption of the decision if the majority of participating members of the Commission votes affirmatively.
If the Commission may adopt decisions when not all Commission members participate in the decision adoption procedure, the existing legal regulation may create a situation when only two Commission members participate while adopting a decision. In our opinion, such a situation may be flawed, since in this case the vote will be determined by the vote of the Commission chairperson. An assumption that such a situation could lead to the adopted decision being biased (the decision will be affected by only the opinion of the Commission’s chairperson) or unjustified (the decision may be adopted by abusing exceptional rights, i.e. of a deciding vote) is not excluded.
We draw your attention to the fact that the Procedure Description does not establish who (what persons) may be appointed as members of the Commission. In resolution to achieve legal clarity we would propose to identify representative of what institutions or organizations (if not only employees of the State Environmental Protection Authority or Regional Environmental Protection Departments under the Ministry of Environment or their structural departments may be appointed to the Commission) may be appointed as members of the Commission.
Suggestions. Regarding aforementioned comments, we would suggest improving the Procedure Description by establishing that there shall be at least five members of the Commission. Furthermore, it should also be regulated that Commission’s decisions are legitimate when they are adopted by most the Commission that participated in the meeting, and decisions shall be adopted by the majority of votes of members that voted.
On the Project No. XIIP-1418 Amending Article 33 of the Law No. I-553 on Local Self-Government
of the Republic of Lithuania
Legal norms. Elderships may be formed from the localities or parts thereof. The project of formation of elderships shall be approved by the municipal council on the recommendation of the director of the municipal administration.
The assessment. Based on the explanatory note, the project aims at giving up a mandatory territorial organization by elderships and providing the possibility for municipal councils to adopt decisions regarding the establishment of elderships, a territorial organization by elderships in accordance with the settlement territory, population, geographical and economic conditions, opinion of settlement residents, initiative, and community interests.
Criteria that the municipal council should consider during the territorial reorganization into elderships are established in the explanatory note while setting the objectives; however, they are not established in the project and due to this reason the provision is unclear. The absence of criteria allows the adoption of an appropriate decision and reduces the possibility for a local community to directly participate in local governance and to influence local government decisions.
A suggestion. To establish criteria in accordance with which the municipal council shall organize territories into elderships.
162
On the Resolution “On the Resolution No. 69 “On the Approval of the Rules for the payment procedure and fees for secondary legal aid and coordination” adopted by the Government of the Republic of Lithuania on 22 January, 2001” adopted by the Government of the Republic of Lithuania
The legal norm. If, in the absence of important (objective and beyond the control of a lawyer) reasons (for instance, force majeure, absence owing to sickness), a lawyer does not fulfil the duty established by Paragraph 2 Article 23 of the Law on State-Guaranteed Legal Aid of the Republic of Lithuania or does not provide the court with data on estimated expenses of secondary legal aid in accordance with the procedure established by legal acts, the state-guaranteed legal aid service (hereinafter referred to as the service) adopts a decision to reduce their payment down to 30 percent from 10 to 30 percent or do not settle the payment.
The assessment. Lowering the minimal payment reduction limit of 10 percent increases the risk of corruption manifestations, because it increases the possibility of unreasonable agreements between a lawyer constantly providing secondary legal aid who, in absence of important reasons, failed to fulfil a duty established in Paragraph 2 Article 23 of the Law or paragraph 4 of the Rules and the service; furthermore, not established cases of payment reduction and non-payment to lawyers providing secondary legal aid create an opportunity to abuse power.
A suggestion. To establish a specific payment reduction amount for lawyers constantly providing secondary legal aid who, in absence of important reasons, failed to fulfil duties established in Paragraph 2 Article 23 of the Law or paragraph 4 of the Rules; criteria in accordance to which the service would decide whether to reduce or not to settle the payment for lawyers providing secondary legal aid for a failure to fulfil their duties in an absence of important reasons.
On Procedure Description on Forcible Vehicle Transportation
The legal norm. A police officer informs the police office about the adopted decision; after performing actions established in the procedure, an authorized officer calls for a tow truck and, after the forcible vehicle transportation, immediately but not later than after 3 days informs the owner or a person that has custody over the vehicle (by phone or in writing).
The assessment. In our opinion the three-day term is too long and may create preconditions for an abuse of power by a police officer, because in this case a police officer decides how much time will the vehicle be stored in a parking lot owned by an entity for which the entity receives profit.226
A suggestion. To reduce the time period for informing about a transported vehicle down to one day, except for the cases when it is impossible to establish the contact information of the owner or a person in whose custody the vehicle is and to inform them on a forcibly transported vehicle or the possibility to reclaim the vehicle.
16.6. Ensuring the Performance of the Obligation to Declare Property and Income for Employees (or Persons Seeking to be Employed) in State or Municipal Institutions
226 For instance, in Vilnius County, storage of a forcible transported vehicle costs 4 Eur per day, a forcible vehicle transportation costs 1.5 Eur per kilometre, a forcible vehicle transportation at night time costs 2 Eur per kilometre, in addition all road work fees must be settled.
163
Seeking for employees or persons seeking to be employed by a state or municipal institution to properly fulfil duties established in the Law on the Declaration of the Property of Residents and the Law on Income Tax of Individuals, including the submission of declarations in time, a head of the aforementioned institution may assign the following tasks to a person fulfilling functions of a personnel recruitment or other:
1) during the acceptance of documents of a candidate to a position of a public servant or other, to remind about the duty to declare property and income within 7 calendar days from the submission of a request to candidate to a position;
2) to encourage employees holding relevant positions to submit property and income declarations to the STI by 1 May of the current year;
In the event of doubts regarding the correspondence between the owned or managed property to received income and (or) the legality of the acquisition source of an employee working in an area with a high probability of corruption manifestations, a head of a state or municipal institution and (or) a direct supervisor may request the employee to provide explanations concerning acquisition sources of owned or managed property, and, if the employee is obligated by the law to declare property and income, to provide copies of property or income declarations or other documents to the STI as well.
An exampleA head of a state (municipal) institution (and not only he) noticed a sudden enrichment of an
employee: he comes to work in a new car, he bought an apartment in the city centre, the change of the value of his owned property is obvious in his public property declaration data as well. The employee works as a deputy of a head of a structural department in an area with a high probability of corruption manifestations. Seeking to dispel the doubts, the employee, upon a request received from a person performing corruption prevention and control, provides documents justifying the increase of the value of his owned property: the agreement of sale and purchase of a vehicle concluded with a leasing company in accordance with which partial payments are being settled and the inheritance note confirming his rights to the inherited apartment. These documents explain the change of the value of his owned property and the fact that the property is acquired from legitimate sources.
During the examination of property and income declarations, the following should be considered:
1) the acquisition method is not indicated in the declaration of property. Property may be acquired free of charge (as a gift, inheritance), therefore, the increase in its and value’s volume does not always signify expenses;
2) At the end of a year, market value changes may lead to holding gains (for instance, the value of a real item that increased during the year, changes of a foreign currency rate that is used for savings, etc.);
3) In the declaration of property, the property that is owned by a person under the right of ownership is indicated, therefore, a vehicle acquired by leasing, other assets the right of ownership of which is transferred to the purchaser after the whole price of an item is settled are not declared as owned property;
4) income of family members, not only of the employee may be used for the purchase of owned property,
In cases when submitted explanations (documents) do not dispel doubts concerning living out of possibly untaxed and undeclared funds, we recommend reporting it to the STI by the trust line 1882, in writing or by other means.
164
16.7. Focus Areas of an Institution and the Existing Corruption Risk Factors
Suggestion focus areas
Criteria determining focus areas of an institution with respect to Anti-Corruption (Paragraphs 3 and 5 of the Prevention of Corruption Law)
Cor
rupt
ion-
rela
ted
crim
inal
act
s w
ere
com
mitt
ed
Mai
n fu
nctio
ns a
re c
ontro
lling
or m
onito
ring
Func
tions
, ta
sks,
pro
cedu
re,
wor
king
and
dec
isio
n-m
akin
g pr
oced
ure,
as
wel
l as
lia
bilit
y o
f se
para
te p
ublic
ser
vant
s ar
e n
ot c
ompr
ehen
sive
ly
The
oper
atio
n is
rela
ted
to th
e pr
ovis
ion
or li
mita
tion
of p
erm
its, d
isco
unts
, ex
empt
ions
and
oth
er a
dditi
onal
righ
ts
Mos
tly a
dopt
s de
cisi
on th
at d
o no
t req
uire
an
appr
oval
by
anot
her
stat
e or
m
unic
ipal
inst
itutio
n
Info
rmat
ion
cons
titut
ing
stat
e or
serv
ice
secr
et is
use
d
The
prev
ious
cor
rupt
ion
risk
asse
ssm
ent e
stab
lishe
d op
erat
ion
flaw
s
Ther
e ha
ve b
een
atte
mpt
s to
aff
ect
empl
oyee
s of
a s
tate
or
mun
icip
al
Cor
rupt
crim
inal
act
s ha
ve b
een
det
ecte
d i
n o
ther
sta
te o
r m
unic
ipal
in
stitu
tions
per
form
ing
sim
ilar f
unct
ions
Impr
ovab
le p
erfo
rman
ce m
onito
ring
sys
tem
of
a s
tate
or
mun
icip
al
inst
itutio
n
Dec
isio
ns b
eing
ado
pted
are
rel
ated
to
mat
eria
l or
oth
er b
enef
it o
f an
in
tere
sted
par
ty
Vio
latio
ns o
f no
rms
of t
he c
urre
nt p
roce
dure
(fo
r in
stan
ce,
durin
g t
he
A s
tate
or
mun
icip
al in
stitu
tion
is a
n in
depe
nden
t man
ager
of
a bu
dget
ary
appr
opria
tion
Oth
er in
form
atio
n on
cor
rupt
ion
man
ifest
atio
ns e
xist
ing
in th
e op
erat
ion
of
a st
ate
or m
unic
ipal
inst
itutio
n
165
16.8. Examples of Municipal Focus AreasFOCUS AREAS IN ACCORDANCE WITH INDEPENDENT AND DELEGATED FUNCTIONS
I. Civil metrication; the restitution of property; primary legal aid1. Adoption registration2. Change of name, surname, nationality3. Registration of a dissolution of marriage, issuance of a divorce note4. Registration of establishment or contesting of paternity5. Correction, addition, amendment of entries in the civil registry6. Restoration of an entry in the civil registry7. Cancellation of an entry in the civil registry8. Registration of acknowledgement of paternity9. New-born birth registration10. Registration of a marriage registered in a foreign country11. Death registration12. Acceptance of a request to register a marriage and marriage registration13. Registration of a dissolution of marriage performed in a foreign country14. Issuance of notes of marital status to a person seeking to enter a marriage in a foreign country15. Registration of marriage contracted by the procedure established by the church16. Registration of birth of a child born in a foreign country17. Issuance of copies, transcripts, extracts from entries in the civil registry18. Primary legal aid19. Registration of a dissolution of marriage
II. Allocation, rent and maintenance of social housing
20. Issuance of consents on the declaration of residence or removal of records on declaration of place of residence in apartments owned by a municipality
21. Short-term lease contracts for the period of privatization procedures22. Amendment, renewal and conclusion of lease contracts of municipal residential premises 23. Exemption from residential premises rent payment24. Issuance of consent for declaration of a place of residence or its removal from the registerIII. Culture; education; youth; sports25. Admission of applications for a tender for children’s summer recreation programs 26. Leasing of non-residential premises of educational and scientific institutions for sports, educational
and scientific activities during the period of time when the premises are not used for their intended purpose27. Registration of state, municipal and non-state (private) educational and research institutions and
freelance teachers in the Education and Science Register 28. Allocation of minimum or medium care actions for children29. Admission of applications for a competition of youth programs 30. Admission of applications for a competition for street youth projects funding 31. Children’s admission to pre-school or pre-primary educational groups in municipal educational
institutions32. Admission of applications for a competition of youth programs33. Granting of social support to pupils34. Centralized children’s admission to general education schools to classes 1, 5, and gymnasiums to
classes I, III35. Centralized children’s admission to pre-school and pre-primary educational special groups in
educational institutions 36. Approval of projects regarding public external works of art37. Cultural projects funding38. Individuals consulting on the issues in the competence of the Department of Culture39. Consults and information on the issues in the competence of Physical Education and Sports Division40. Project proposals on the management of cultural heritage objects41. Preparation of acts on the investigation of conditions of cultural heritage objects42. Consults and information on the issues in the competence of Cultural Heritage Division IV. Taxation; tax overpayment43. Acceptance of requests for tax exemptions from natural persons44. Acceptance of requests for refund of land lease overpayments and refund or crediting incorrectly
paid taxes
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45. Acceptance of requests for notes on payments for state land lease for natural and legal persons 1.46. Acceptance of declarations on land lease payments of legal persons 1.47. Acceptance of inquiries and documents regarding declaration from state land lease tax payers (legal
persons)48. Acceptance of inquiries and documents regarding tax calculation from state land lease tax payers
(natural persons)49. Acceptance of requests for tax exemptions from legal personsV. The protected greenery; environment and ecology; animals50. Issuance of permits for cutting and pruning protected trees and bushes51. Issuance of permits for cutting, replanting, removing or other elimination work protected trees and
bushes52. Adjustment of installation conditions for a complementary waste collection system of the waste
management system organized by a municipality53. Funding of environmental projects from the municipal Environmental Protection Support Special
Program funds54. Adjustment of applications for Integrated Pollution Prevention and Control (hereinafter - IPPC)
permits55. Submission of a conclusions on the Environmental Impact Assessment (the EIA) report56. Funding of environmental education projects from the Municipal Environmental Protection Support
Special Program funds57. Organization of public labour58. Determination of damages caused by game animalsVI. Social housing59. Issuance of notes regarding the inclusion to the list for the lease of social housing60. Consults on the inclusion of persons (families) to the list for the lease of social housing61. Inclusion of persons (families) to the list for the lease of social housing62. Lease of social housing63. Conclusion of rent agreements for social housing for a fixed period of time64. Dormitory rent and extensions of lease contracts65. Housing for returning political prisoners and exiles 66. Consults on state-supported housing loans67. Issuance of notes regarding the right to state-supported housing loansVII. Social benefits68. Granting of social assistance benefits for a mother with many children69. Application of compensations for heating, hot water, cold water, wired phone subscription fee, other
services, consumed natural gas, electricity, and solid fuel in a single housing where a place of residency of an independent defender is declared
70. Granting of a social assistance pension to a mother with many children71. Granting of a social assistance pension to a person who reached the effective retirement age72. Granting of a social assistance pension to disabled73. Granting of a social assistance pension to orphans74. Granting of a targeted compensation for nursing expenses75. Granting of a compensation for social assistance benefits76. Social assistance pension payments for a care work for a disabled person at home designated before
April 1, 2004 77. Issuance of a note of a receiver of compensation for social assistance benefits or social assistance
(social) pension78. Granting of benefits for a death of a benefits receiver to person who berries them79. Granting of a compensation for technical adaptation of an acquired spec. vehicle80. Granting of one-time child benefits81. Granting of child care allowance82. Granting of a benefit to a child of a serviceman of the initial mandatory military service83. Granting of guardianship and care benefits84. Granting of lump sum benefits for pregnant women85. Granting of social benefits86. Granting of refunds for heating, drinking water and hot water87. Granting of refunds for utilities to unemployed, disabled88. Allocation of compensation for persons injured during the compulsory military service in the Soviet
army
167
89. Granting of a compensation for transport expenses90. Granting of a targeted guardianship (curatorship) benefit91. Granting of burial benefits92. Granting of a lump sum benefit for settling down93. Granting of a targeted compensation for nursing (aid) expenses94. Regarding loan and interest payments in accordance with an application submitted by a general use
facility manager95. Regarding a note for paying a loan and interest fee96. Submission of a note on the income being received (or not being received) by a person97. Provision for a second-degree state pensions to be granted98. Granting of a lump sum benefit for a partial compensation for the local toll for municipal waste
collection and management99. Granting of a lump sum benefit in the case of an accident, serious illness, and other cases to a
deprived person100. Granting of a compensation to defenders of independence of the Republic of Lithuania who have
become disabled due to Soviet Union aggression during January 11-13, 1991 and at later times and their families101. Issuance of a note of a receiver of compensation for social assistance benefits or social assistance
(social) pension102. Granting of a compensation for transport expenses103. Granting of lump sum benefits to the participants in the armed resistance – volunteer soldiers
wounded during armed fights, interrogation and imprisonment as well as for their funeral 104. Granting of lump sum benefits to families of participants who died in the resistance to the
occupations of 1940-1990 – freedom fighters 105. Conclusion of contracts on travel reimbursement106. Acknowledgement of a legal status and issuance of a note of a person disabled due to Soviet Union
aggression during January 11-13, 1991 and at later timesVIII. Social services107. Granting of benefits for the repatriation of remains of a citizen of the Republic of Lithuania who
died (was killed) abroad108. Provision for a second-degree state pensions to be granted109. Housing adaptation for a disabled person110. Submission of a request to acknowledge a person incapable (diminished capacity) and to provide
care to an incapable person care111. Submission of a request to establish guardianship over a capable (diminished capacity) person112. Issuance of a note of a disabled person113. Acknowledgement of a legal status and issuance of a note of an independence defender114. Acknowledgement of a legal status and issuance of a note of an injured person115. Referral of persons not insured by compulsory health insurance to ambulatory care institutions116. Determination of special needs and their level117. Granting of lump sum benefits in the amount of up to 3 BSB (114 Eur)118. Provision of technical aid119. Personal hygiene and care services120. Transport services121. Issuance of a temporary identification card122. Help at home services123. Granting of daily social care services for adults with disabilities and elderly persons124. Granting of long-term (short-term) social care services for adults with disabilities and elderly
persons125. Services of accommodation in independent living houses for adults with disabilities, elderly persons,
social risk adults and their families and social risk families126. Issuance of a note allowing to use public transport with a 80 percent discount to independence
fighters127. Granting of lump sum benefits in the amount of 4 to 48 BSB (152-1824 Eur)128. Granting of a long-term (short-term) social care services for social risk children and children left
without parental care129. Granting of a long-term (short-term) social care services for children with disabilities130. Granting of daily social care services for children with disabilities131. Granting of social support to pupils132. Granting of lump sum benefits in the case of a birth of triplets or more children
168
133. Granting of daily social care in a person’s home134. Granting of financial assistance to families acting as guardians (curators) or the ones who oversee
children not related to them by blood135. Determination of special needs level for pensioners and the issuance of a note of disability136. Services of accommodation in hostels for social risk individuals who do not have a place of
residence137. Granting of a temporary lodging138. Granting of catering to adults139. Granting of social skills training and support services140. Granting of psychosocial aid141. Granting of crisis management assistance to childrenIX. Territory planning; construction; architecture; communication142. Approval of tasks of project proposals143. Informing the society about expected building designs144. Approval of project proposals145. Determination of special architectural requirements146. Acceptance of requests to place ads on the spatial planning and their publication on the website147. Issuance of a summary of territorial detailed planning conditions148. Issuance of building permits149. Approval of projects on tombstones and graves installation 150. Approval of projects on outdoor cafés, outdoor trade (service) sites and shopping kiosks (pavilions)
installation.151. Approval of installation projects of memory (information) boards, remembrance signs152. Issuance, replacement or cancellation of addresses and numbers of land objects (buildings or
complexes of buildings), premises (apartments) and the naming of streets and squares.153. Issuance of planning conditions for the preparation of area-wide special planning document (for the
project of formation and reorganization)154. Completion of an act on condition audit of a cultural heritage site155. Determination of cultural value of a building156. Mediation between managers of cultural heritage buildings, objects and other immovable items in
the cultural heritage territory or vicinity and the Department of Cultural Heritage157. Drafting and implementation of land plot forming and reorganization projects158. Approval of installation projects of small architectural and urban decoration objects159. Provision and receipt of spatial data on designed buildings covered by a construction permission
document160. Installation, renovation, and repair of lighting in public areas of a city161. Provision of the information regarding the determination of valuable properties of immovable
cultural heritage objects162. Consults on the real objects of cultural heritage (historic buildings) and objects in the cultural
heritage territory or vicinity163. Consults on the organizational procedure of building maintenance provision164. Consults on an inventory of asbestos, an asbestos removal program165. Re-registration of building permits166. Leasing state land, transferred to municipalities on fiduciary basis, not by an auction and transferring
for use free of charge167. Leasing state land, transferred to municipalities on fiduciary basis, by an auction168. Consults on special architectural requirements and design169. Coordination of installation projects of summer outdoor cafés, outdoor trading venues170. Coordination of projects on the installation of Memorial (information) boards, remembrance signs171. Issuance of street names172. Provision of technical documents of reclamation facilities and other information to owner’s other
users of reclaimed land173. Organization of pebble street installation with residents paying 50% of the value of the work174. Installation organization of road signs175. Examination and coordination of projects on outdoor advertising image replacementX. Child rights protection176. Placing a child deprived of parental care under temporary guardianship (curatorship)177. Placing a child temporarily deprived of parental care under temporary guardianship (curatorship) in
accordance with parents’ request
169
178. Issuance of a document on the registration of a family a social risk family with children179. Issuance of a document regarding granting a compensation (social assistance pension) to a mother
with a large number of children180. Setting of the procedure of the children’s contact with the parents181. Setting of the procedure of the children’s contact with their close relatives182. Organization of the Inclusion of citizens of the Republic of Lithuania residing in the Republic of
Lithuania in the list of prospective adoptive parents183. Organization of permanent guardianship (curatorship) for children deprived of parental care184. Preparation of mediation documents regarding a request to issue (replace) an identification card or a
passport to a child under 18185. Preparation of conclusions on the suitability of a natural person to accept a child under the
guardianship (curatorship) of an institution for a temporary stay186. Acceptance of requests or issuance of documents or conclusions to persons with children under 18
seeking to conclude a family or child real estate transaction agreement187. Preparation of draft resolutions on inclusion or exclusion from the list of social risk families188. Provision of conclusions regarding a reduction of legal age of consent to marriage189. Consults on issues regarding child rights protection190. Receipt of requests on receiving a permit for the acceptance of a child under the guardianship
(curatorship) of an institution for a temporary stay191. Complex assistance to families raising children from birth to 7 years of ageXI. Public resolution; events coordination; coordination of flights; dog ownership192. Coordination of meetings (peace rallies, pickets, demonstrations, processions, marches, and other
peaceful unarmed meetings)193. Investigation of complaints, requests, reports regarding public resolution infringements194. Issuance of permits of keeping an aggressive dog in a city
XII. Agriculture; transport195. Amendment of data after buying agricultural machinery already registered in Lithuania 196. Registration of tractors, self-propelled and agricultural machinery, and their trailers 197. De-registration of tractors, self-propelled and agricultural machinery, and their trailers 198. Issuance of a duplicate registration note of a tractor, self-propelled machinery (trailer)199. Issuance of registration numbers for tractors, self-propelled and agricultural machinery, and their
trailers 200. Issuance of technical inspection notes for tractors, self-propelled machinery (trailers)201. Registration and update of agricultural property in the Register of Agricultural Holdings and Rural
Enterprises of the Republic of Lithuania202. Registration of a farmer’s holding203. Transfer of a farmer’s holding from a city to another district204. De-registration of a farmer’s holding205. Amendment of data on a farmer’s holding206. Consults on the issues of the provision of agricultural services207. Receipt of annual declarations on direct sales milk production and realization208. Receipt of support requests from bee-keepers for an additional bee feedingXIII. Burial; cemetery maintenance209. Organization of burials of unidentified persons, single persons, persons without a permanent place of
residence, when death is declared in the city territory210. Consults on issues in the competence of the Cemetery Maintenance Subdivision of the Division of
City ManagementXIV. Sanitation and hygiene211. Municipal sanitary control (non-routine by individuals’ requests, statements, and complaints) in
accordance with the procedure established by the municipal director212. Provision of information and consults on the sanitation, hygiene and public health issues213. Determination and assessment of sanitation, hygiene and public health risk factors in the living
environment214. Determination of administrative violations, handling of cases of administrative violations,
imposition of administrative penalties and the control over their administrative penalties and their execution control in accordance with areas established by Article 239³ of the Code of Administrative Violations
XV. State language usage215. Provision of information and consults on language issues
170
216. Investigation of complaints regarding the state language usage and correctnessXVI. Apartment buildings; real estate217. Consults on issues regarding the municipality’s share of the payment procedure for the
refurbishment or renovation of apartment building common facilities218. Issuance of notes of the right to settle payments for the loan and interest for refurbishment
(modernisation) of an apartment building 219. Appointment or dismissal of an administrator who shall manage and use objects of joint ownership220. Organization of car parking areas’ installation in residential neighbourhoods, provided residents pay
50% of the work value221. Organization of the repair, reconstruction and (or) construction of utility networks in vicinity of
apartment buildings with the participation of natural and (or) legal persons222. Organization of the repair, reconstruction and (or) construction of utility networks in vicinity of
apartment buildings with the participation of natural and (or) legal persons223. Appointment or replacement of administrators of property of joint ownership that belongs to owners
of apartments and other premises224. Selection of persons standing as candidates to provide administration services of objects of joint
ownership in apartment buildings in the city municipal territory 225. Disconnection of a building’s heat equipment from heat transmission networks or selection of a
heating method for newly constructed buildings226. Disconnection of a heat (hot water) equipment of an apartment or other premises from heat
transmission networks227. Sales of municipal dwellings and auxiliary buildings and their parts228. Sales of municipal real estate and the privatization of shares by an auction229. The adoption of the ownership of non-residential and residential premises
previously owned by legal and natural personsXVII. Heat supply230. Awarding of grants to heat suppliers231. Consults on heating and hot water supply, charges for heat and hot water and the renewal procedure
of heat sector232. Consults on the disconnection of heat equipment from heat transmission networks by the user’s
initiative233. The adoption of the ownership of engineering networks and equipment previously owned by legal
and natural personsXVIII. Permits; licenses; applications234. Issuance of digging and fencing permits235. Extension of digging and fencing permits236. Issuance of applications for digging and fencing permits237. Termination of validity of digging and fencing permits238. Permits to install water boreholes239. Issuance of a license authorizing retail trading of bulk petroleum products240. Issuance of a license authorizing wholesale trading of bulk petroleum products241. Addition, adjustment, issuance of a duplicate license authorizing trading of
petroleum products242. Suspension of validity, cancellation of validity suspension, termination of validity of
a license authorizing trading of petroleum products by an enterprise’s request243. Issuance of a licence authorizing a seasonal retail trading of alcoholic beverages the
ethyl alcohol by volume of which does not exceed 22 % and a licence authorizing a seasonal retail trading of beer, beer blends with non-alcoholic beverages and naturally-fermented cider of not more than 7.5 % ethyl alcohol by volume during the holiday, recreation and tourism season
244. Issuance of a licence authorizing a retail trading of beer, beer blends with non-alcoholic beverages and naturally-fermented cider of not more than 8.5 % ethyl alcohol by volume in pavilions
245. Adjustment of a licence authorizing a retail trading of alcoholic beverages 246. Addition to a licence authorizing a retail trading of alcoholic beverages 247. Issuance of a duplicate licence authorizing a retail trading of alcoholic beverages 248. Issuance of a licence authorizing a retail trading of alcoholic beverages in public catering
establishments and retail establishments249. Termination of validity of a licence authorizing a retail trading of alcoholic
beverages by an enterprise’s request250. Issuance of a single licence authorizing a retail trading of alcoholic beverages
171
251. Issuance of a single licence authorizing a retail trading of alcoholic beverages at exhibitions and fairs which are held in permanent buildings
252. Issuance of a licence authorizing trading (providing services) during events253. Issuance of a licence authorizing a retail trading of tobacco products254. Adjustment of a licence authorizing a retail trading of tobacco products255. Addition to a licence authorizing a retail trading of tobacco products256. Issuance of a duplicate licence authorizing a retail trading of tobacco products257. Termination of validity of a licence authorizing a retail trading of tobacco products
by an enterprise’s request258. Issuance of consents to establish a gaming house (casino) in a city
259. Issuance of a licence to provide service by recreational equipment
260. Handling and provision for consideration of requests to provide non-residential premises by a rental or lending
261. Handling of requests to purchase real estate owned by a municipality in accordance with Article 24 of the Law on State Assistance for the Acquisition or Rent of Housing of the Republic of Lithuania
262. Handling of requests to allow major repairs or reconstruction of rented non-residential premises on the balance sheet of Department of Finance by lessees
263. Issuance of a licence to carry out passengers by passenger taxi cars
264. Issuance of permits authorising the installation of an indoor advertisement
265. Issuance of a license authorizing retail trading of liquefied petroleum gas
266. Issuance of a license authorizing wholesale trading of liquefied petroleum gas
267. Issuance, amendment, addition, revoking, issuance of a duplicate of a license authorizing retail trading of liquefied petroleum gas
268. Issuance of permits authorizing trading (providing services) from a kiosk, pavilion269. Issuance of permits authorizing trading (providing services) in an outdoor café
270. Issuance or permits authorizing event organization271. Issuance of permits authorizing filming film272. Issuance of applications for digging and fencing permits
273. Issuance of digging and fencing permits
274. Extension of digging and fencing permits
275. Revoking of digging and fencing permits
276. Issuance of a licence authorizing the installation of service or informative road signs on city streets277. Issuance of consent to reserve vehicle parking places278. Issuance, replacement, and extension of validity of licences and duplicate licences authorizing
engaging in passenger transport by buses by local communication routes279. Agreements on designing and (or) construction of engineering structures
280. Issuance of conditions of the connection to utility networks
281. Composing conditions of connection agreements
282. Issuance of permits to provide a new burial place in a city cemetery
283. Issuance of permits to bury a family member in a city cemetery
172
284. Issuance of permits to transport remains
285. Issuance of a licence authorizing supplying heat286. Issuance, amendment, extension of validity of licence copy authorizing to transport
passengers by a vehicle by local communication routes287. Issuance of permits to expand a burial place in a city cemetery288. Written consent for designed buildings in the zone of street red lines (road
protection)289. Issuance of permits to ride city streets in large and (or) heavy vehicles (or their combination)290. Receipt of applications for direct payments for declared land of agricultural use and
crops, marking land boundariesFOCUS AREAS OF MUNICIPALITIES IN ACCORDANCE WITHINTERNAL
ADMINISTRATION FUNCTIONS291. Procurement planning, initiation, organization, implementation, and maintenance:1) Proper organization of goods, services and work carried out by a municipality;2) Proper organization of procurement not covered by the requirements of the Law on Public
Procurement Procedure;3) Management of the operation of structural departments of the Municipal Administration and
Purchasing Organizations managed by the Municipal Council, promotion of competition in supply, the objective of efficient and rational use of procurement funds, procurement organization cost reduction;
4) implementation of prevention actions in procurement field in resolution to enhance the efficiency of procurement performance and reduce violation possibilities of a procurement performance procedure established by the Law on Public Procurement;
5) preparation of Municipal legal acts that regulate a procurement and establish an effective basis of procurement performance;
6) implementation of the provisions of the Law on Public Procurement of the Republic of Lithuania;292. Management of human resources1) planning of Municipal personnel strategies and implementation of personnel policy;2) analysis of the functional operation of Administrative structural departments, the workload, and the
provision of suggestions in effective use of human resources;3) Administration staffing by employees capable of implementing programs provided in Municipal
strategic plans and fulfilling the objectives;4) Management organization of Municipal Council Secretariat and Municipal Administration, heads of
Municipal Budgetary and Public Institutions and Enterprises, the objective of ensuring payments, holiday, pensions and other social guarantees of public servants and employees working under an employment contract;
5) drafting of legal acts regulating internal procedures that constitute a basis for an effective operation of the Administration;
6) implementation of the provisions of the Law on Public Service of the Republic of Lithuania;7) ensuring proper personnel administration;8) ensuring gender equality and equal opportunities;293. Record keeping:1) Employment, transfer, temporary replacement, dismissal, provision of holiday and formalization of
business trips within the country of public servants and employees working under an employment contract as well as heads of Municipal Budgetary and Public Institutions and Enterprises;
2) personal case management of Public servants and employees working under an employment contract as well as heads of Municipal Budgetary and Public Institutions and Enterprises;
3) formalization of issuance of bonuses and premiums;4) management of personnel records and register of public servants;5) provision of reports to SODRA;6) aid in planning requirement for wages;7) formalization of gratitude issued by the mayor and Administration director;8) organization of congratulating on personal or work anniversaries;9) accounting and monitoring of property, obligations, financing amounts, income and expenses of a
municipality and appropriation managers;10) accounting and controlling settlements for Municipal property undergoing privatization by receiving
data from Property Management and Business Services Department;11) preparation of financial reports, a budgetary implementation and preparation of other reports
regarding a municipality and appropriation managers, their provision to the Ministry of Finances, Municipal Control and Audit Service, the Municipal Council, and other institutions in accordance with the established procedure;
173
12) revision and processing of reports, preparation of summaries, consolidated financial, budgetary implementation and other reports regarding agencies subsidiary to managers of municipal appropriation;
13) information provision to interested parties in accordance with the procedure established by legal acts;
14) accounting management, performance organization, preparation of compilation of reports on the Privatization Fund;
15) accumulation and transfer of Municipal non-budgetary funds for the purposes established in the legal acts;
16) preparation and control of payment resolutions, information provision on funds in bank accounts;17) accounting of an investment program funds;18) development of scoreboard of municipal receivables-to-payables register 19) management of municipal budgetary expenses according to appropriation managers and funding of
programs;20) controlling the usage of Municipal budgetary funds in resolution to ensure their usage for the
implementation of programs only approved by the Municipal Council21) financing of projects approved in Municipal and State investment programs22) submission of financing applications for receiving funds for investment projects financed by the
State Privatization Fund23) granting of special state support for acquiring residential houses, apartments, financing the return of
Political Prisoners and Exiles and their family members to Lithuania as well as provision of social care and development programs of the Social Housing Fund;
24) submission of financing applications to the Ministry of Finance of the Republic of Lithuania for receiving funds for settling an unreturned part of a loan and interest, in accordance with data provided by the bank, payable by socially disadvantaged individuals who exercised their right to a preferential housing loan; the implementation of programs on the return of Political Prisoners and Exiles and their family members to Lithuania as well as provision of social care for them and Social Housing Fund development;
25) municipal loan repayment accounting;26) Compilation of a Municipal loan register.294. Archive administration:1) Ensuring safekeeping, proper maintenance, record keeping, use, preparation and transfer to state
safekeeping of documents included into the state archive fund;2) Ensuring transfer, proper safekeeping and use of municipal documents (of Council, Council’s board
panel, mayor, Administration director and subsidiary departments, services, and departments);3) receipt for safekeeping and use of Municipal documents (of Council, Council’s board panel, mayor,
Administration director and subsidiary departments, services, and departments) as well as transfer of permanent safekeeping records to state safekeeping in accordance with procedures prescribed by legal acts;
4) submission of long-term or short-term safekeeping documents of liquidated legal entities of the city in the absence of direct successors of their functions;
5) record administration of stored documents that ensures their management, the development of information search systems;
6) assessment of a physical condition of stored documents and the implementation of preservation ensuring actions;
7) temporary issuance of cases and documents in accordance with the established procedure;8) issuance of Archive notes, document copies and extracts to citizens of the Republic of Lithuania and
other countries as well as institutions in accordance with stored documents;9) consults on issues of methodological assistance in management of documents and formation of cases
for archival safekeeping, as well as the provision of the aforementioned assistance;10) provision of data regarding the composition of Archive funds and quantity changes to state archive.295. Ethics investigations as well as investigations of violations, imposition of penalties;1) Developing and updating the Municipal corruption prevention program and the implementation
action plan;2) Coordination of the operation of executors determined in the implementation action plan of the
Corruption Prevention Program;3) Development of rules of conduct for individuals employed by the municipality and the compliance
control;4) Development of recommendations for conduct for members of the Council and employees of the
Municipality;5) organization of Anti-Corruption education, staff training on ethical conduct;6) annual assessment of fields of Municipal focus with a high probability of corruption manifestations
and the submission of motivated conclusions;7) regulation of Municipal internal work ethics;
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8) investigations of professional misconduct of administration public servants, violations of work ethics by employees and heads of institutions, preparation of conclusions;
9) analysis of professional misconduct and violations of work ethics, provision of suggestion on their prevention;
296. Document record keeping:1) Developing and updating the municipal corruption prevention program and the implementation
action plan;2) Coordination of the operation of executors determined in the implementation action plan of the
Corruption Prevention Program;3) Development of rules of conduct for individuals employed by the municipality and the compliance
control;4) Development of recommendations for conduct for members of the Council and employees of the
Municipality;5) organization of Anti-Corruption education, staff training on ethical conduct;6) annual assessment of fields of Municipal focus with a high probability of corruption manifestations
and the submission of motivated conclusions;7) regulation of Municipal internal work ethics;8) investigations of professional misconduct of administration public servants, violations of work ethics
by employees and heads of institutions, preparation of conclusions;9) analysis of professional misconduct and violations of work ethics, provision of suggestion on their
prevention;
297. Legal operation:1) representation of the municipality in defending its interests in court, in other state authorities;2) provision of legal assistance for Municipal administration departments in their operation on legal
issues related to their operation;3) in accordance with the competence, consideration of requests, complaints and proposals submitted
by institutions, organizations, individuals;4) provision of information on current court proceedings for Municipal administration departments and
the accountability for the accuracy and correctness of the information;5) performance of other functions necessary for the implementation of tasks of the department, as well
as the execution of resolutions issued by the mayor, a director of the Administration and a director of the Legal Department;
6) provision of state-guaranteed primary legal aid. 298. Management, use and disposal of assets:1) ensuring proper provision of administrative and economic services by Municipal administrative
departments;2) ensuring effective management of tangibles by Municipal administrative departments;3) ensuring the compliance with fire safety regulations, safety instructions and industrial sanitation
requirements as well as ensuring the security of Municipal departments and premises;4) ensuring a proper exploitation and maintenance of a municipal administrative building and other
facilities;5) satisfying the municipality road transport requirements;6) planning of providing short and long-term assets, services, and labour demand of Municipal
administrative structural departments;7) ensuring the compliance with fire safety regulations, safety instructions and industrial sanitation
requirements as well as ensuring the security of Municipal departments and premises;8) ensuring the maintenance of public resolution in the city Municipal administrative building;9) partially satisfying the municipality road transport requirements;10) provision of official vehicles for municipal employees;11) Ensuring the security of tangibles; participation in inventorying and write-off tangibles.
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16.9. ABC of Corruption Prevention
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Corruption prevention ABC: what to know?
Corruption is an abuse of an official position in resolution to obtain benefit. This concept includes corruption in both Public and Private-sectors.
What is it? Examples of corrupt violations of the law are the following: active or passive bribery including benefits as incentives to perform an action, proposal, offer, acceptance or a request that is illegal or violates the ethics code. The benefit may take different forms, for instance, gifts, loans, taxes, bribes, rewards (“in commission”), reduction of taxes, issuance of a visa, services, support and gifted property.
Is it a crime?Corruption crimes are the following:Acceptance of a bribeProvision of a bribeTrading in influenceAbuse of powerNon-performance of official dutiesAnd other violations of legal acts
What to do?An effective corruption prevention allows avoiding criminal actions. An institution must implement actions for corruption prevention:Properly assess corruption risks;Carry out an anti-corruption program and its actions;Contact the SIS to get acquainted with the reputation of candidates;Do not tolerate corruption and report on known incidents
How to ensure an anti-corruption environment? The Guide of An Anti-Corruption Environment (GAE) initiated by the SIS and prepared together with partners will aid in creating and maintaining an anti-corruption environment in the Public-sector. The Guide also includes detailed information on the implementation of corruption prevention actions, legal regulation, practical advice and recommendations. GAE may be found on: …
Whom to contact when encountered corruption?If you have questions on corruption, you may contact a person within the institution that is responsible for corruption prevention or you may leave a message to the SIS (anonymity is guaranteed): [email protected]/7 “hotline” (8 5) 266 3333
16.10. NPA: A Transparent Support Administration - Without Gifts or Bribes227
227 Internet access: https://www.nma.lt/uploads/files/dir911/dir45/dir2/15_0.php.177
HOW TO THANK?
BY A GOOD WORD AND A SMILE!
Do you want to thank a civil servant? Never make him/her or yourself feel uncomfortable, do not offer any items, products, money or services.
If a civil servant accepts items, products or other type of benefit, he/she may receive a disciplinary, administrative or criminal penalty. If a civil servant refuses to accept offered items, products or services, he/she does the right thing. Legal acts oblige a civil servant to inform law-enforcement agencies about a bribe, i.e. an illegal act, being offered.
If you want to thank a civil servant for a high-quality, pleasant, caring, polite service, we would recommend to fill in a questionnaire on the service quality assessment that may be found in the central National Paying Agency, in territorial subdivisions, as well as on the internet on the website www.nma.lt.
YOUR POSITIVE REVIEW IS THE BEST AND THE MOST TRANSPARENT WAY TO ASSESS A WORK OF A CIVIL SERVANT.
IMPORTANT!
A person may be held criminally liable even for a promise, an agreement or a provocation to give or accept a bribe.
If you are demanded to give a bribe or you are aware of cases when bribes were demanded, you may inform the Special Investigation Service of the Republic of Lithuania either personally or anonymously via tel. (8 5) 266 3333 or the police via an emergency telephone number 112. If you come across possibly non-transparent actions of an employee of the agency, you may report it via the “Trust line” of the agency (8 5) 260 7901 or via the website www.nma.lt, the column “Trust line”. When reporting non-transparent actions you help transparently and legally administrate the support intended for the Lithuanian Rural Development Program of 2014-2020.
If you want your reported information to help fight the corruption, base it on facts – specify the date, time, location, a bribe, names and surnames, positions of people related to the incident and other details.
TRANSPARENCY is one of the most important values of the National Paying Agency.
National Paying Agency under the Ministry of Agriculture
17 Bindžių St, Vilnius 08111
Tel. (8 5) 252 6999Fax (8 5) 252 6945E-mail [email protected]
WWW.NMA.LT
TRANSPARENT support administration – WITHOUT GIFTS OR BRIBES
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The Lithuanian Rural Development Program of 2014-2020 consists of more than 70 areas of operation and support actions intended for rural development.
More and more Lithuanian citizens apply for a financial support each year in resolution to implement supported investment projects on agriculture and rural development with the aid of support funds or while declaring utilised agricultural area and other plots of land in resolution to receive support in accordance with Lithuanian rural development support actions of 2014-2020.
In resolution to ensure that the supported projects are implemented and administrated transparently or effectively, we recommend familiarizing with main transparency guidelines.
WHAT IS CORRUPTION?
It is a negative social phenomenon; a part of the society agrees with it seeking benefits and not caring about the damage caused to other people and the state.
FORMS OF CORRUPTION
Most common forms of corruption are offering a bribe, accepting a bribe, trading in influence (when a person acts as a mediator between a person receiving and a person giving a bribe).
HOW TO DIFFERENTIATE BETWEEN A BRIBE AND A GIFT?
A bribe is understood as “bribery gift”, it is not only money, items, groceries, alcohol, but also services, exemption from property obligations, etc. For instance, a free car ride, renovation of premises, debt cancellation or a provided opportunity to be able, free of charge, utilize services of rural tourism that are provided during the fulfilment of the obligations of one of the actions of the Lithuanian Rural Development Program of 2014-2020 “Support for investments for setting up and development of economic activities” or so).
A bribe is considered to be any kind of benefits when it is given or received for decisions made, being made or to be made of a civil servant.
Therefore, if a civil servant is given chocolate, coffee, fruit, alcohol, dinner or money, an illegal activity is taking place.
This kind of gratitude is treated as illegal gratification, corrupt behavior or a bribe by the law and other legal acts. If a bribe is given both before and after a performance of certain actions, it is a crime, offering a bribe. If a bribe is accepted, it is an act of receiving a bribe.
A BRIBE AND LIABILITY
If a bribe is offered, the person offering it is liable (for instance, a farmer that operates in accordance with the operation area “Main services and village renewal in rural areas” of a action of the Lithuanian Rural Development Program of 2014-2020 “Farm and business development” gives a sum of money, brings a bag of potatoes, tills a plot of land belonging to an employee of the Institution or his or her relatives without a charge, etc.). This action is called offering a bribe and according to the Criminal Code of Lithuania it is a criminal offence and the following penalties may be incurred: a fine, an arrest, a restriction of freedom or an imprisonment for up to 7 years. A penalty depends on the value of the bribe.
If a bribe is received, the person receiving it is liable (for instance, if a civil servant accepts money, production, uses a transport without a charge, etc. belonging to a farmer that operates in accordance with the operation area “Investments in to agricultural holdings” of an action of the Lithuanian Rural Development Program of 2014-2020 “Investments in tangible assets”). This action is called receiving a bribe and according to the Criminal Code of Lithuania it is a criminal offence and the following penalties may be incurred: a fine, an arrest or an imprisonment for up to 8 years. A penalty depends on the value of the bribe.
Therefore, in both cases, persons offering, giving, accepting, asking for a bribe are to be punished in a manner prescribed by law.
16.11. NPA Transparency Guide228
228 Internet access: https://www.nma.lt/uploads/images/dir911/dir45/dir2/13_1.php.179
A TRANSPARENCY GUIDE
Dear colleague,
transparency is one of main values of the Agency. While fostering this value remember the following advice that will allow you to act confidently, safely and professionally:
Refuse any gift given for your work; Be aware that civil servants may accept gifts only officially in
accordance with the law; Tell the person that wishes to thank you that a smile and a good word
is enough; Propose to give the gifted goods to penurious families, senior citizens,
the disabled, etc., and avoid awkward situations; Consider the so-called “gifts”, “expressions of gratitude”, “presents”,
etc. as bribes; Be aware that both the receiver and the giver of the illegal
gratification are born responsible; Be aware that a criminal offence may include a promise, an
agreement, a provocation, a demand, a proposal to give a bribe, mediation;
Inform your immediate supervisor about the “gifts” or bribery attempts, inform Corruption Prevention Specialists or law-enforcement agencies;
Inform the Special Investigation Service or other law-enforcement agencies by calling 112 if someone is demanding money from you, or a commitment of criminal acts;
Consult Institution Corruption Prevention Specialists on the transparency issues;
Be an example for colleagues by behaving transparently;
16.12. Recommendations on Customs Officers’ Actions When Cash Money Is Found or Given During Customs Control or Control
APPROVEDBy the resolution, No. 1B-711 adopted on 18 September, 2015 by the general director of the ministry of finances of the Customs Department of the Republic of Lithuania
RECOMMENDATIONS ON CUSTOMS OFFICERS’ ACTIONS WHEN CASH MONEY IS FOUND OR GIVEN DURING CUSTOMS CONTROL OR CONTROL
1. Recommendations on customs officers’ actions when cash money is found or given during customs control and control (hereinafter referred to as Recommendations) regulate actions of customs officers in the event of cash money being found or given during the performance of official duties, customs control or control.
2. Control is an inspection of vehicles and goods carried by them, their documents and individuals carried out by officers of the department of Customs Mobile Groups on the whole customs territory of the Republic of Lithuania.
3. A bribe is an illegal, improper advantage that is offered, promised, agreed to be provided or being provided for customs officers in resolution for the officer to adopt a decision favourable to the individual. A bribe is not only money but also other material valuables (various goods, services, and other items).
4. Bribery is active actions of an individual by performing which it is sought to bribe a customs officer who is, in the opinion of the individual, competent in performing (not performing) actions while exercising their authority that the bribe giver is interested in. If a bribe giver is mistaken regarding the competence in performing (not performing) actions of a customs officer being bribed, offering, promising, agreeing to give, providing a bribe to such persons is completed bribery.
5. Bribery is completed when a bribe is offered, promised, agreed to be given or is being given to a customs officer.
6. An offer to give a bribe is a request, a persuasion, an encouragement of a given customs officer to perform (not to perform) specific actions while exercising their authority in the interest of the bribe giver for a reward.
7. A promise to give a bribe is actions of a bribe giver that essentially are the same as the actions executed while offering a bribe, but at the same time the decision of the customs officer receive a bribe while being provided certain guarantees, that the bribe will definitely be given, that it will be done safely and it will be useful, is strengthened.
8. An agreement to give a bribe is a situation when a bribe giver offers a bribe to a customs officer and the officer, respectively, agrees to accept the bribe and to perform (not to perform) desired actions while exercising their authority in the interest of the bribe giver. While agreeing on giving a bribe, the form of a bribe, time and manner of its provision may be arranged, in other cases it may only be abstractly agreed on the fact of the provision and receipt.
9. Provision of a bribe is actions of a bribe giver upon which the bribe is handed over to the customs officer being bribed for performance (non-performance) of desired actions while exercising their authority.
10. In the event of cash money being found or given during the performance of official duties, customs control or control, customs officers shall perform the following actions:
10.1. to figure out the person’ intentions, because a direct transfer of money, leaving it among the submitted for processing customs or identification documents, putting it into a pocket of the uniform of the officer, leaving it on seats of official vehicles or vehicles being inspected or on cargo pallets or provision of money in other ways may show the person’s intentions; it is necessary to figure out whether a person’s actions are intentional and intended to bribe a customs officer. In the event of suspecting that the cash money was left unintentionally, it is necessary to warn the person about the impending criminal liability.
10.2. not to try “to help to decide”: it is important to behave with confidence, the refusal must be short and clear, unnecessary discussions should be avoided. If the money was left unintentionally, it is necessary to ask to take it back. It is prohibited to demand or provoke to give a bribe.
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10.3. To inform the post shift supervisor (officers of the department of Customs Mobile Groups inform the senior officer of the Customs Mobile Group brigade) about a possible bribery. A detailed inspection of a vehicle the driver if which gave cash money during customs control or control and, after the senior officer of the Customs Mobile Group brigade assesses the risk and existing technical capabilities and the post shift supervisor decides to perform a detailed cargo inspection, a detailed cargo inspection shall be performed.
10.4. In the event of identifying an act of bribery, it is necessary to write down exact personal data of the potential bribe giver from identification documents, to memorize their appearance and clothing, escort the potential bribe giver to official premises and to inform them that they must wait until a pre-trial investigator arrives. It is important to ensure that the potential bribe giver would not flee the scene.
10.5. to take notice of the object of a bribe: to memorize how many and what bills were detected (denomination, currency, size), what were they packed into, with what items presented, etc. to try keeping the bribe in a place that a potential bribe giver could see, but could not access.
10.6. To protect the scene: if cash money was left on a table, seats of official or inspected vehicles, cargo pallets, put into a drawer, a pocket of a uniform of an officer or thrown to the ground and a potential bribe giver fled the scene, the money shall be left where it was found and it shall be not touched by hands.
10.7. To try to identify witnesses of the incident that may have seen the potential bribery (it may be other customs officers, customs clients, or other by-standers) and write down their data and contact numbers, if it is possible, to ask to wait until a pre-trial investigator arrives.
10.8. To write a detailed official report, in which it is necessary to specify the exact time, place of the incident, object of a bribery (amount of money, currency, bills), witnesses, actions of the person giving the bribe, possible bribery motives, causes indicated by them and other relevant circumstances.
10.9. To submit the gathered data to a pre-trial investigator who arrived to the scene of the incident, follow their instructions, provide as much information as possible and give a truthful testimony about what happened.
11. The recommendations are applicable in the event of material valuables (various goods, services and other items) being found or given during the performance of official duties, customs control or control as well.
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REGISTRATION FORM OF RECEIPT OR DETECTION OF MONEY DURING CUSTOMS CONTROL OR CONTROL
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16.13. A Guide for Public Servants and Persons Equated to Them on Being Offered or Given a Bribe
Corruption is an abuse of authority in resolution to obtain benefit for themselves or other persons.
A bribe is an illegal, improper advantage in a form of material or any other personal gain to themselves or other persons (material or not, having economic value on the market or not) for legal or illegal performance or non-performance of desired actions by public servants or persons equated to them while exercising their authority.
1. A public servant or a person equated to them must conduct themselves in a way that would not create an impression that bribery is being provoked, and:
1.1. in the event of receiving an offer for a performance or non-performance of official duties, one shall:
1.1.1. not accept the bribe regardless of its value; 1.1.2. if possible, make a video, audio recording of the conversation;1.1.3. clearly state to the visitor and express by own conduct that no improper advantage or
gifts are tolerated;1.1.4. explain to the visitor that their actions may be considered as criminal and result in
criminal proceedings;1.2.5. warn the visitor that the direct supervisor and a pre-trial investigation agency229 will
be informed about the offer of a bribe; if possible, do not to let the visitor flee the scene and quickly inform the direct supervisor, a pre-trial investigation agency by phone;
1.2.6. before pre-trial investigation officers arrive, keep calm, prepare a written explanation concerning circumstances of the offer or promise to give a bribe, not serve other visitors;
1.2.7. before pre-trial investigation officers arrive, behave in accordance with the instruction given by pre-trial investigation officers;
1.2. in the event of the visitor having given a bribe, one shall:1.2.1. not take the bribe into hands regardless of it value; 1.2.2. if possible, make a video, audio recording of the conversation, make a photo of the
bribe placed on the table or any other place;1.2.3. clearly state to the visitor and express by own conduct that no improper advantage or
gifts are tolerated;1.2.4. explain to the visitor that their actions may be considered as criminal and result in
criminal proceedings;1.2.5. warn the visitor that the direct supervisor and a pre-trial investigation agency will be
informed about the provision of the bribe; if possible, do not to let the visitor flee the scene and quickly inform the direct supervisor, a pre-trial investigation agency by phone;
1.2.6. before pre-trial investigation officers arrive, keep calm, prepare a written explanation concerning circumstances of the provision of the bribe, not serve other visitors;
1.2.7. before pre-trial investigation officers arrive, behave in accordance with the instruction given by pre-trial investigation officers;
1.3. in the event of receiving an offer to affect another public servant or a person equated to them in resolution for that person to perform or not to perform accordingly during or outside business hours, one shall:
229 Police, the SIS or another pre-trial investigation agency that is authorized to investigate certain corruption-related criminal activities.
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1.3.1. not accept an offer or a bribe for a promise to affect another public servant or a person equated to them;
1.3.2. if possible, make a video, audio recording of the conversation;1.3.3. clearly state to the visitor and express by own conduct that such behaviour is not
tolerated;1.3.4. explain to the visitor that their actions may be considered as criminal and result in
criminal proceedings;1.2.5. warn the visitor that the direct supervisor and a pre-trial investigation agency will be
informed about the provision of the bribe; if possible, do not to let the visitor flee the scene and quickly inform the direct supervisor, a pre-trial investigation agency by phone;
1.2.6. before pre-trial investigation officers arrive, keep calm, prepare a written explanation concerning circumstances of the provision of the bribe, not serve other visitors;
1.2.7. before pre-trial investigation officers arrive, behave in accordance with the instruction given by the officers;
2. If an improper advantage was offered, promised or demanded, a threat to perform certain actions (either legal or illegal) was transmitted by e-mail, phone or other means of communication (via social network accounts), a public servant or a person equated to them:
2.1. shall take actions in resolution to save the evidence: not delete e-mails, messages, if possible, make a video, audio recording of the person offering an improper advantage;
2.2. if an improper advantage was sent as a postal consignment or by a courier, take photographs of unpacking the consignment of its content. They can provide additional information for the identification of the bribe giver;
2.3. shall inform the direct supervisor, a pre-trial investigation agency.3. In the event of informing the SIS, it is recommended to take into account the Report
Submission to the Special Investigation Service of the Republic of Lithuania Description, internet access: https://www.e-tar.lt/portal/lt/legalAct/TAR.51E21CA8C304/yDkdvjnYsD.
4. More information on possibilities to submit a report may be found:https://www.adb.org/news/features/how-deal-bribes-workplace;https://www.stt.lt/lt/praneskite-apie-korupcija/palikite-pranesima-cia/#turinys; http://skaidrumolinija.lt/.
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