(2019) 1 Visn. Nac. akad. prokur. Ukr. 75–86
https://doi.org/10.34285/visnyknapu2019.01.075
Title of the article “Virtual Friendship” as a Reason for the Conflict of Interests
Author(s) OLHA ZAHORSKA
senior lecturer, department of continuing training of prosecutors in corruption prevention, Institute for Continuing Professional Development, National Prosecution Academy of Ukraine, Kyiv, Ukraine, zagorskaolga@ukr.net
LIUDMYLA SHMAL
lecturer, department of continuing training of prosecutors in corruption prevention, Institute for Continuing Professional Development, National Prosecution Academy of Ukraine, Kyiv, Ukraine, lydmilashmail@ukr.net
Journal Scientific theoretical and practical journal
“Journal of the National Prosecution Academy of Ukraine”
Short title
of the journal (ISSN)		 Visn. Nac. akad. prokur. Ukr.
Year 2019
Issue 1
Pages [75–86]
Language Ukrainian
Abstract The United Nations Convention against Corruption of October 31, 2003, ratified by the Law of Ukraine of October 18, 2006, No. 251-V, establishes the need to create, maintain and strengthen systems that prevent conflicts of interest. National anti-corruption legislation contains rules for preventing and resolving a potential, real conflict of interest. Private interest is the category that determines the subjective attitude of the individual towards making a decision, committing or failing to act in the exercise of powers.
Under the present conditions, the role of social networks cannot be overemphasized; they have indeed embraced the whole world, becoming one of the mainstream media. High-level officials are increasingly becoming active participants in various social networks, displaying pictures of their leisure time, publicly expressing their attitude to the events taking place in society, communicating with each other. Among them there are prosecutors.
The purpose of the article is to find out the possibility of attributing “friendship” in the social networks of the participants of the process, in particular the prosecutor, to the category of “private interest”, the identification of discussion and problem aspects, the search for solutions to them.
In the United States, there is a rather controversial practice of considering the type of dispute in question. As a result, four states – California, Connecticut, Massachusetts, and Oklahoma – apply withdrawal of judges through “friendship” with process participants on Facebook.
The Law of Ukraine “On Prevention of Corruption” establishes the procedure for action of a person in cases of doubt as to the existence of a conflict of interests. So, according to p. 5 of Art. 28 of the aforementioned Law, in the case of a person having doubts about the existence of a conflict of interest, she/he is obliged to apply for explanations to the territorial body of the National Agency. In the event that the person has not received confirmation of the absence of a conflict of interest, it acts in accordance with the requirements provided in this section of the Law. However, one can confidently state that such a mechanism is in practice ineffective, at least because the territorial bodies of the National Agency for the Prevention of Corruption have not yet been established, and the consideration of such communications is carried out within the time and procedure established for citizens’ appeals.
However, the features of the procedural nature of the activities of the prosecutor predetermine the need for an expeditious solution to the settlement of the conflict of interest. In this aspect, the experience of the United States of America, the Federal Republic of Germany, the Republic of Latvia, Romania, and the Republic of Finland is useful. If the prosecutor doubts that he/she has a private interest, including due to the fact of “friendship” in the social network, during the exercise of procedural powers in court, it is expedient to “disclose” information about this fact to the court, other participants in the process to find out about their opinion about trusting prosecutor.
Undoubtedly, under the present conditions, the question of assigning “friendship” in social networks to one of the grounds for a conflict of interests is extremely interesting and relevant, but at different stages of development of society the correct answer to it can be diametrically opposed. However, on the path to overcoming corruption, the formation of a virtuous behavior of each subject of power, increasing responsibility for actions, the mere avoidance of the possibility of any doubts about impartiality and objectivity in the exercise of powers seems to be a highly justifiable and feasible measure.
Keywords conflict of interests; private interest; doubt; friendship; social networks.
References REFERENCES
List of legal documents
Legislation
1. Kryminalnyi protsesualnyi kodeks Ukrainy [The Criminal Procedural Code of Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 13 kvitnia 2012 roku № 4651-VI. URL: (accessed: 18.02.2019) (in Ukrainian).
2. Pro zapobihannia koruptsii [On Preventing Corruption]: Zakon Ukrainy [Law of Ukraine] vid 14 zhovtnia 2014 roku № 1700-VII. URL: (accessed: 24.01.2019) (in Ukrainian).
Cases
3. Rekomendatsii dlia pratsivnykiv orhaniv prokuratury z pytan zastosuvannia antykoruptsiinoho zakonodavstva v chastyni obmezhennia shchodo oderzhannia podarunkiv [Recommendations for Officers of the Prosecutor’s Office on the Application of Anti-corruption Legislation in Relation to Restrictions on the Receipt of Gifts]: skhvaleno 24 veresnia 2018 roku, protokol № 5. URL: (accessed: 18.02.2019) (in Ukrainian).
4. Rishennia Konstytutsiinoho Sudu Ukrainy u spravi za konstytutsiinym podanniam 50 narodnykh deputativ Ukrainy shchodo ofitsiinoho tlumachennia okremykh polozhen chastyny pershoi statti 4 Tsyvilnoho protsesualnoho kodeksu Ukrainy (sprava pro okhoroniuvanyi zakonom interes) [The Decision of the Constitutional Court of Ukraine in the Case of the Constitutional Petition of 50 People’s Deputies of Ukraine Regarding the Official Interpretation of Certain Provisions of Part 1 of Article 4 of the Civil Procedural Code of Ukraine (case about the protection of law interest)] vid 1 hrudnia 2004 roku № 18-rp/2004. URL: (accessed: 24.01.2019) (in Ukrainian).
Bibliography
Dictionaries
5. Akademichnyi tlumachnyi slovnyk ukrainskoi movy [Academic Explanatory Dictionary of the Ukrainian Language] URL accessed 24 January 2019 (in Ukrainian).
Websites
6. ‘Chyslo Dunbara ye diisnym i dlia sotsialnykh merezh: liudskyi mozok dozvoliaie pospravzhnomu spilkuvatysia lyshe z 150 druziamy’ [‘Danbar Number is Also Valid for Social Networks: the Human Brain Allows You to Truly Communicate with Only 150 Friends’] URL accessed 18 February 2019 (in Ukrainian).
7. ‘Druzhba: v sotsmerezhakh, yak u realnomu zhytti’ [‘Friendship: in Social Networks, as in Real Life’] URL accessed 18 February 2019 (in Ukrainian).
8. Kibenko O, ‘Chy mozhe suddia tovaryshuvaty z advokatamy u Facebook’ [‘Can a Judge and a Lawyer be Friends on Facebook’] URL accessed 18 February 2019 (in Ukrainian).
9. ‘Sud rozhlianuv spravu shchodo “druzhby” suddi ta advokata u Facebook’ [‘The Court Reviewed the Case of the “Friendship” of a Judge and a Lawyer on Facebook’] URL accessed 18 February 2019 (in Ukrainian).
10. ‘Sud: ‘Sam po sobi fakt perebuvannia prokurora u “druziakh” v sotsialnii merezhi Facebook z uchasnykamy protsesu ne ye pidstavoiu dlia vidvodu’’ (Frunzenskyi raionnyi sud m. Kharkova, Sprava № 645/2378/17 vid 7 travnia 2018 roku) [‘Court: ‘By Itself, the Fact that the Prosecutor is Staying in “Friends” in the Social Network on Facebook with the Participants in the Process is Not a Reason for the Withdrawal’’ (Frunzenskyi District Court of Kharkiv, case № 645/2378/17 of May 7, 2018)] URL accessed 18 February 2019 (in Ukrainian).
download .PDF