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DOI: https://doi.org/10.34069/AI/2023.66.06.25
How to Cite:
Fedytnyk, V., Pidgorodynska, A., Sarybaieva, G., Shostak, O., & Kolomoiets, T. (2023). Actual issues of responsibility of civil
servants under special legal regimes: International legal experience. Amazonia Investiga, 12(66), 278-285.
https://doi.org/10.34069/AI/2023.66.06.25
Actual issues of responsibility of civil servants under special legal
regimes: International legal experience
Актуальні питання відповідальності державних службовців в умовах особливих
правових режимів: міжнародно-правовий досвід
Received: May 25, 2023 Accepted: June 27, 2023
Written by:
Vasyl Fedytnyk1
https://orcid.org/0000-0001-5146-927X
Anastasiia Pidgorodynska2
https://orcid.org/0000-0001-6822-2409
Ganna Sarybaieva3
https://orcid.org/0000-0003-4492-956X
Olena Shostak4
https://orcid.org/0000-0002-1625-2590
Tetiana Kolomoiets5
https://orcid.org/0000-0003-1101-8073
Abstract
The issue of reforming and modernizing the civil
service is relevant in developed European countries,
including Ukraine. The basis of this process is the
democratization of the public service, aimed at
satisfying the interests of the citizen as a client and
consumer of public services, and therefore not the
last role in this belongs to the issue of legal
regulation of the responsibility of public servants.
In the conditions of military and state of emergency
regimes, it is important to ensure the proper service
of provision of public services and the functioning
of the state mechanism. In this context, an important
role is played by the institution of the responsibility
of civil servants. Therefore, we consider it
necessary to analyze the international legal
experience of prosecution in the conditions of
special legal regimes. The purpose of the work is to
find out the relevant issues of international
experience in regulating the responsibility of civil
servants. Research methodology includes such
methods as the method of abstraction, the method
of analysis, the method of induction and induction,
the methods of formalization and idealization, the
1
PhD in Law, Associate Professor of the Department of Criminal Procedure and Organization of Pretrial Investigation, Faculty 1,
Kharkiv National University of Internal Affairs (Ukraine).
2
PhD in Law, Associate Professor of the Department of Criminal Procedure, Detective and Operative-Investigative Activities,
National University “Odesa Law Academy” (Odesa, Ukraine).
3
Doctor of Legal Science, Associate Professor of the Department of Administrative and Financial Law of the National University
"Odesa Law Academy" (Ukraine).
4
PhD in Law, Associate Professor of the Department of Criminal Law, National University “Odesa Law Academy” (Odesa, Ukraine).
5
Doctor of Legal Science, Professor, Corresponding Member of the National Academy of Legal Sciences of Ukraine. Honored Lawyer
of Ukraine, Dean of Law Faculty of Zaporizhzhia National University (Ukraine).
Fedytnyk, V., Pidgorodynska, A., Sarybaieva, G., Shostak, O., Kolomoiets, T. / Volume 12 - Issue 66: 278-285 / June, 2023
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comparative method, the system method, and the
functional method. As a result of the study, the
peculiarities of regulatory regulation of the
mechanisms of bringing civil servants to
responsibility, both in Ukraine and in foreign
countries, were analyzed. Both the general
principles of prosecution and the specific principles
of this process under special legal regimes (martial
law and state of emergency) are noted.
Keywords: responsibility, civil servants, special
legal regime, martial law regime, international legal
experience.
Introduction
In the modern realities of the instability of the
world legal order, it is important to analyze the
specifics of the civil servant's responsibility
under special legal regimes, taking into account
the specifics of both the legal regime and the
status of a public servant. A civil servant is in an
employment relationship that is characterized by
certain specifics, because the employer is the
state in the person of a specific body of state
power. At the same time, a civil servant performs
a labor function and is obliged to observe official
discipline, and in case of violation of discipline
or legal requirements - to the responsibility
provided by the current legislation.
The Law of Ukraine "On Civil Service" provides
a definition of "official discipline" which means
strict adherence to the Oath of a civil servant,
conscientious performance of official duties and
rules of internal official procedure. In order to
observe official discipline, a civil servant must
not commit acts that are incompatible with his
professional status, show a high level of culture,
professionalism, respect for citizens, treat state
property, public interests, etc. In the conditions
of martial law on the territory of Ukraine, the
Law of Ukraine "On the Organization of Labor
Relations in Conditions of Martial Law"
regulates all the intricacies of the general labor
rules of civil servants, thereby pushing aside the
labor legislation, the Laws of Ukraine "On State
Service", "On Service in Local Self-Government
Bodies" and other legislative acts regulating the
activities of civil servants and officials of local
self-government (Law 2136-IX, 2022;
Law 889-VIII, 2015; Law 2493-III, 2001).
At the same time, to what extent this decision is
correct, it is possible to find out only over time,
as well as based on the analysis of the
international legal experience of regulating the
responsibility of civil servants in the conditions
of special legal regimes.
Legal responsibility is the object of research in
many legal sciences, in particular the theory of
the state and law, criminal, civil, labor,
administrative law, and many other sciences,
since legal responsibility is a guarantee and a
mechanism for ensuring the rights and freedoms
of subjects of various legal relationships.
As the responsibility of civil servants is one of
the most urgent and debatable problems,
especially in the conditions of martial law, it
should be considered as one of the key issues that
requires special attention.
Presented in modern legal science, research on
the responsibility of civil servants, as well as
comparative legal studies of this problem, mainly
concern individual types of legal responsibility
or the comparison of individual components of
one or another legal system of the EU countries,
which does not give a comprehensive idea of the
responsibility of civil servants in the conditions
of special legal regimes, and therefore this
research is relevant.
Given the above, the tasks of the research are:
1) To analyze the international experience of
bringing civil servants to justice, in
particular in the conditions of special legal
regimes;
2) To study problematic and urgent issues of
responsibility of civil servants abroad and in
Ukraine;
3) To form conclusions regarding current
issues of responsibility of civil servants in
conditions of special legal regimes (martial
law, etc.) and possible ways of solving them.
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The object of the study is the international legal
experience of the procedure of bringing civil
servants to justice under the conditions of special
legal regimes of foreign countries. The subject of
the study is social relations that arise, change,
and cease under the application of responsibility
to civil servants in foreign countries.
Theoretical Framework or Literature Review
During the analysis of the international
experience of prosecuting civil servants under
special legal regimes, the works of the following
authors were analyzed. Thus, Andriychuk (2009)
analyzed the principle of transparency of
communication between state authorities and the
population through a conceptual vision. The
researcher concluded that transparency as a
principle of communication between state
authorities and the public is a complex
phenomenon, the meaning of which goes beyond
the simple provision of information to citizens.
The formation of the public's understanding of all
aspects of the activities of state authorities, which
this principle should provide for, makes it
possible to characterize it as the appropriate
quality of public life, a type of social relations
built on mutual understanding between these
authorities and the population.
Moreover, Aleynikova (2022) investigated the
peculiarities of civil service in the conditions of
martial law. In particular, the article notes the
rights and obligations of civil servants, as well as
the restrictions caused by the state of war in
Ukraine.
Further, Anishchenko (2022) investigated the
issue of compliance with the standards of legal
responsibility during the organization of the
procedural procedure for bringing civil servants
to disciplinary responsibility. The author
concluded that the norms of the current
legislation on disciplinary responsibility should
be revised in terms of the implementation of the
procedural procedure for bringing civil servants
to responsibility and formed in compliance with
the standards of legal responsibility, to direct
them to achieve the optimal degree of
orderliness, since disciplinary responsibility is
one of the types of legal responsibility. Also, in
the opinion of the author, the Procedure for
Conducting Disciplinary Proceedings and the
Procedure for Accounting and Working with
Disciplinary Cases need to be amended and
brought into line with the Procedure for
Accounting and Working with Disciplinary
Cases, in which it is necessary to define in detail
the procedure for familiarization with case
materials, as well as to detail the procedure for
determining the place of familiarization with the
disciplinary case and making changes to the
Procedure for Conducting Disciplinary
Proceedings and defining a separate rule in it
regarding the rights of the lawyer / another
authorized representative in the process of
conducting the disc plenary proceedings.
The problematic issues of the institute of
disciplinary responsibility of civil servants are
studied in the work of Vladovska and Trach
(2020). According to the authors, the disciplinary
responsibility of civil servants is an institution of
labor law, which consists in applying negative
consequences of a legal nature to the guilty
person in the event of a disciplinary offense
committed by him, with the aim of compensation
for damage, termination and prevention of
violations of official discipline in the future.
Also, the authors emphasize that the investigated
institute has undergone significant reform since
its creation and now needs further improvement
in the following aspects: elimination of
legislative conflict and duplication of provisions
on determining the disciplinary responsibility of
a civil servant and the grounds for bringing a civil
servant to disciplinary responsibility; canceling
the exhaustive list of types of disciplinary
offenses and establishing the possibility of their
extended interpretation; expanding the list of
disciplinary sanctions by supplementing it with a
fine; establishing the possibility of applying
alternative disciplinary sanctions for a
specifically committed disciplinary offense; to
create a specialized court for bringing civil
servants to disciplinary responsibility.
A comparative analysis of the organization of the
civil service in Germany, Australia, and Ukraine
was carried out by Geivakh (2012). The main
principles of European Union law and their
application in public administration became the
object of research by Hrytsiak (2004).
Also, Gubanov (2016) carried out a comparative
analysis of the procedure for bringing civil
servants to disciplinary responsibility in Ukraine
and Germany. Summarizing the analysis of the
disciplinary legislation of Ukraine and the
Federal Republic of Germany, the author
concluded that, in contrast to the disciplinary
responsibility of employees according to the
norms of labor law, the detailed regulation of the
procedure for bringing civil servants to
disciplinary responsibility is aimed at protecting
precisely public legal interests, ensuring the
proper level of public administration, stability
and authority of the state.
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In the work of Zubrytskyi (2021), the experience
of Germany regarding the legal regulation of the
legal responsibility of civil servants was
investigated.
Further, Derets (2022) noted the issue of
balancing military optimization and public
service. Kaida (2022) examined the features of
public service during the period of martial law.
Researcher Krupyak (2015) surveyed the general
principles regarding the organization of civil
servant activities, as well as the problematic
issues of such an organization.
Moreover, Neselevska (2018) examined the
foreign experience of legal regulation of
disciplinary liability of civil servants and
directions of its implementation in Ukraine.
Okhrimenko and Ivanova (2015) considered the
issue of social responsibility as a component of
the legal responsibility of a civil servant.
Charkina (2016) reviewed the principles of civil
service in the countries of the European Union
using the example of Poland and Germany.
Shapovalova (2022) considered the positive
experience of Germany regarding the legal
regulation of social protection of civil servants in
modern conditions of information
communications. Some issues of protection of
the rights of civil servants and their
responsibilities are analyzed in the work of Dr.
Peter Grech (2006).
Kolomoiets, Verlos, & Pyrozhkova (2018)
studied some manifestations of corruption with
the participation of civil servants, related to
giving them gifts. Kolomoiets, Kolpakov,
Kushnir, Makarenkov, & Halitsyna (2020)
analyzed the anti-corruption standards of legal
regulation of the activities of civil servants
outside the civil service. Kolomoiets, Tsybulnyk,
Moroz, Prymachenko, & Khashev (2021)
investigated the impact of corruption of civil
servants on the state of national security of the
country.
Methodology
During the study of topical issues of
responsibility of civil servants in the conditions
of special legal regimes, the method of
abstraction was used, which involves separating
a certain feature of the researched subject as a
criterion for systematizing information about this
subject. Thanks to this method, the responsibility
of civil servants was considered both in normal
conditions and in conditions of war and
emergency.
The use of analysis methods helped to break
down information about the subject of research
into constituent elements. Thus, the international
experience of prosecuting various categories of
civil servants was analyzed.
The method of abstraction along with the method
of analysis helped to fulfill the main task of the
research – to analyze the international experience
of bringing civil servants to justice, in particular
in the conditions of special legal regimes.
The help of methods of induction and deduction
can make it possible to formulate objective
conclusions and summarize information about
the international experience of bringing civil
servants to justice. Thus, deduction means
making a general conclusion based on a partial
fact, reducing the whole to a partial fact, and
induction, which means making a partial
conclusion from a more general premise, that is,
reducing a partial fact to a general basis, helped
to understand how special legal regimes in states
affect the institution of accountability. These
methods helped to fulfill one of the tasks set by
the authors of this article, namely - to form
conclusions regarding current issues of
responsibility of civil servants in conditions of
special legal regimes (martial law, etc.) and
possible ways of solving them.
The methods of formalization and idealization
helped to examine the already existing legislation
and generalize the actually available information
about the subject of research, as well as to
formulate an idea of how it could be.
The system method makes it possible to consider
public administration phenomena in the
aggregate of social relations, identify the whole
and its parts, helped to study individual
components of the public administration
apparatus in the general system of organization
of state power, as well as the place of
responsibility of the public servant in this system.
The use of this method helped to focus on the
organizational and structural forms in which
management activities are carried out and to
consider the organization of several processes in
the conditions of special legal regimes as a
holistic phenomenon, where all components are
interconnected by goals, functions, principles,
methods, structures, processes, personnel and
resource provision. So, this method, which
involves structuring and ranking problems, made
it possible to consider the phenomenon under
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study as a system, that is, many interdependent
and interconnected elements.
With the help of the functional method, paying
attention to the specifics of the content of the
institute of responsibility of civil servants,
objectively necessary functions of state
administration at this stage of state formation,
and finding optimal options for their distribution
in the state administration apparatus, were
identified.
An important role in this study was played by the
comparative method, which contributed through
the study and use of the practice of bringing civil
servants to justice in the conditions of special
legal regimes - made it possible to identify the
trends and directions of development of public
administration, its relationships with other
subjects of public power, and to determine its
place in the state mechanism in conditions of war
and emergency. Through the application of this
method, it became possible to search for the
optimal model of executive power, and local self-
government, and to test successful foreign
mechanisms for solving urgent issues. This
method helped to fulfill one of the tasks of this
research, in particularly – to compare
problematic and urgent issues of responsibility of
civil servants abroad and in Ukraine.
Results and Discussion
The current conditions of the military aggression
of the Russian Federation on the territory of
Ukraine made it necessary to review the issue of
the responsibility of civil servants. Such a
situation is justified and is observed in countries
where the war is ongoing and has been. Given
this, we consider it necessary to consider the
experience of foreign countries regarding the
responsibility of civil servants under special legal
regimes. At the same time, it is equally important
to pay attention to the experience of progressive
countries regarding this issue.
First of all, let's find out how such regulation is
currently carried out in Ukraine. The Law "On
the Organization of Labor Relations in the
Conditions of Martial Law" (Law 2136-IX,
2022) defines key issues regarding the
performance of duties by employees, including
military personnel. Civil servants are liable for
violations of legality and official discipline, non-
performance or improper performance of their
official duties.
But before starting a detailed consideration of
each of the issues we identified, let's consider the
concept of the standard of legal responsibility
and examine the importance of this term for
disciplinary proceedings. Thus, it seems logical
to state that the processes that take place within
the limits of various types of legal responsibility
(among which are traditionally distinguished
constitutional, administrative, criminal, civil,
disciplinary, and material) should meet certain
general standards, i.e. have typical form and
content. However, we agree with the opinion that
such standards should consist of a set of signs and
principles of legal responsibility and features of
the procedural design of the responsibility
procedure.
In particular, the signs of legal responsibility
include:
1) the fact of committing an offense is the basis
for legal liability;
2) legal responsibility is expressed in the legal
obligation of the offender to suffer
deprivation of certain values that belonged
to him;
3) is carried out within the framework of legal
relations voluntarily or by decision of a court
or other jurisdictional body;
4) measures of state-authority influence, as it
revealed, are applied in a procedural-
procedural manner;
5) is a negative reaction of the state to the
offense and the subject guilty of its
commission;
6) is a legal fact and gives rise to legal
consequences (for example, a criminal
record) (Vladovska & Trach, 2020).
Disciplinary responsibility must correspond to
the above signs of legal responsibility. Therefore,
it is appropriate to conclude that the standard of
legal responsibility can be defined as generalized
rules for the organization of procedural and
procedural order, based on general features and
principles of legal responsibility, the purpose of
which is to observe the legality, completeness of
consideration and objectivity of the decision on
the case.
At the same time, the grounds for civil servants'
liability under special legal regimes, as well as
the procedure itself, may change. Thus, despite
the principle of stability of the civil service, it is
possible to introduce changes that will be
justified to ensure national security.
Let's consider the issue of the responsibility of
civil servants in foreign countries in more detail
(Table 1).
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Table 1.
Comparative legal analysis of the prosecution of civil servants in foreign countries.
Country
Features
Israel
include:The main problems
● bureaucratization of the civil service corps;
● excessive centralization (administrative, political, financial); making process.-● insignificant role of citizens in the decision The constant military threat stands in the way of the adoption of successful reforms in the field of civil
making is often a matter of "life or-service. In Israel, we are used to the fact that the speed of decision
death". However, this approach was erroneously extended not only to the defense industry, where no
one doubts its usefulness but also to the rest of the spheres, where it is not needed at all. In conclusion,
d prevents it the lack of public administration reform is one of the features that holds Israel back an
from being compared to other developed countries that are constantly improving their public
administration (in terms of innovation, openness, inclusiveness, etc.). At the same time, the
responsibility of civil servants is distinguished by their brutality.
Germany
Republic of Germany defines that officials in the Federal Republic of The Basic Law of the Federal legal -Germany are a special group of people performing public service, bound to the state by public
relations of service and loyalty. Persons employed in the public service of the Federal Republic of
Germany are divided into three categories: officials, employees, and workers of state institutions. The
procedure for bringing civil servants to disciplinary responsibility in the Federal Republic of Germany
is regulated by the Federal Disciplinary Statute of the Federal Republic of Germany dated July 9,
2001. The Federal Disciplinary Statute of the Federal Republic of Germany, under paragraph 1,
applies both to civil servants and to retired civil servants in the event of the discovery of disciplinary
offenses committed by them during their former employment in the civil service. According to
paragraph 5 of the Federal Disciplinary Statute of the Federal Republic of Germany, the following
types of disciplinary sanctions may be applied to civil servants: 1) reprimand; 2) fine; 3) salary
reduction; 4) reduction in position; and 5) dismissal from a civil service position, and disciplinary
measures against retired civil servants are: 1) reduction of pension; and 2) deprivation of pension.
Poland
The most important changes in public authorities in Poland during the reform period are as follows: qualitative changes in relations between politics and administration (allocation of political —
positions, civil servants); strengthening the principle of subsidiarity; — implementation of the dominance of the territorial principle over the branch principle —making process, tasks, and funds, limitation of the size of the state -(decentralization of the decision
apparatus); making process;-detailed regulation of the decision — increasing the transparency of the activities of authorities and access to public information; — replacement of hierarchical relationships with horizontal ones (both within individual institutional —
structures and between them); transition from quantitative to qualitative criteria for evaluating the activities of executive —
authorities; introduction of social dialogue mechanisms into the process of making important decisions (for —
example, the tripartite commission mechanism); the creation of guarantees of proper behavior of officials. — Informing citizens about the administration's intentions to improve the provision of services, holding
competitions, and other measures aimed at improving work has become a constant direction of the
work of Polish authorities. Within the program. Thus, the projects implemented by the Polish
authorities initiate changes in administrations, especially regarding the dissemination of the
experience of openness of actions and provide citizens with information about the most important
bodies, the direction of services, documents, and payment. In Poland, procedures of administrative
information managers include all state and local government bodies, as well as those institutions that
use funds from the budgets. Refusal to provide information in Poland can only be due to its
confidentiality (personal data protection, right to privacy, state, professional, financial, statistical).
The refusal is made in the form of an administrative decision. Also, in Poland, the following
disciplinary sanctions are applied to civil service employees: warning, reprimand, deprivation of the
possibility of assigning a rank for 2 years, reduction of the basic salary by no more than 25% for no
more than 6 months, reduction of the rank of the civil service, suspension from the civil service. The
following disciplinary sanctions are applied to persons holding senior civil service positions and civil
service employees: warning; reprimand; reduction of the basic salary by no more than 25% for no
more than 6 months; suspension from work, which may result in termination of employment. In our
opinion, the list of Ukrainian disciplinary sanctions could be supplemented with such types of
disciplinary sanctions as a reduction of the basic salary by no more than 25% for no more than 6
months and a reduction in rank.
Data provided by Tsina Derzhavy (2016); Geivakh (2012); and Charkina (2016).
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From the above analysis, it can be said that there
are different approaches to the responsibility of
civil servants in foreign countries. At the same
time, special legal regimes make corrections to
the usual state of affairs, which leads both to
changes to the procedure for bringing
responsibility (prompt response to violations),
and to strengthen the responsibility of civil
servants for committing offenses. Effective
regulation of the responsibility of civil servants
and the procedure for carrying out official
investigations in conditions, for example, of
martial law, plays an important role in bringing
the guilty person to justice.
Conclusions
As a result of the analysis of current issues of the
responsibility of civil servants in the conditions
of special legal regimes, the following
conclusions were drawn based on international
experience:
1) Summarizing the analysis of the disciplinary
legislation of Ukraine and the Federal
Republic of Germany, Israel, and Poland, it
can be concluded that, in contrast to the
disciplinary responsibility of employees
according to the norms of labor law, the
detailed regulation of the procedure for
bringing civil servants of foreign countries
to disciplinary responsibility is aimed at
protecting precisely public legal interests,
ensuring the proper level of public
administration, stability and authority of the
state. This is important for Ukraine to take
into account, especially in the conditions of
martial law or a state of emergency.
2) The list of disciplinary sanctions of foreign
countries is extended, compared to the list
determined by the Ukrainian legislator. The
majority of disciplinary sanctions in Ukraine
are aimed at establishing restrictions of a
moral, social, and organizational nature for
civil servants.
3) To carry out effective state administration in
wartime conditions, it is important to
promptly detect violations of legislation
committed by civil servants, conduct
investigations of offenses and bring them to
justice.
In general, the objective of the research has been
achieved.
Concerning further scientific research, we
consider it necessary to analyze the specifics of
criminal liability of state liability of civil servants
under martial law and the problematic issues of
its application.
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