95Implementing “good governance” principles in the practice of public control
Yevheniia LIPIY
Poltava State Agrarian Academy, Poltava
Ukraine
ORCID: 0000-0001-9952-83X
pdau@pdau.edu.ua
Mykola KOMZIUK
Kharkiv National University of Internal Aairs, Kharkiv
Ukraine
ORCID: 0000-0002-7656-1061
khnuvs@univd.edu.ua
Anna KOMZIUK
Mykolas Romeris University, Vilnius
Lithuania
ORCID: 0000-0003-3827-5838
vti@mruni.eu
IMPLEMENTING “GOOD GOVERNANCE” PRINCIPLES
IN THE PRACTICE OF PUBLIC CONTROL
WDRAŻANIE ZASAD „DOBREGO RZĄDZENIA”
W PRAKTYCE KONTROLI PUBLICZNEJ
Abstract: The concept of secure functioning of public administration is dened, which is un-
derstood as the proper performance of its functions, which involves the implementation of
European principles and standards of good administration. In Ukraine, which aspires to beco-
me a full member of the European Union, the implementation of these principles is one of the
priority tasks, as it means the full protection of human rights and freedoms. The normative
enshrinement and content of these principles are analysed, including legality, non-discrimina-
tion, absence of abuse of power, respect for privacy, respect of condentiality, legal certainty
(judicial protection of violated rights) and appeal against decisions. It is concluded that the
implementation of these principles requires constant and eective control over the activities of
public administration, which is entrusted to all governmental entities, as well as members of
the public. The peculiarities of certain types of such control are claried: parliamentary, pre-
sidential, internal administrative (control of executive bodies), judicial, municipal and public.
Zarys treści: Zdeniowano pojęcie bezpiecznego funkcjonowania administracji publicznej,
rozumiane jako prawidłowe wykonywanie jej funkcji, co wiąże się z wdrażaniem europejskich
95
95gl;;
Nr 6 ss. 95–103 2021
ISSN 2543–7321 Przyjęto: 05.04.2022
© Instytut Bezpieczeństwa i Zarządzania, Akademia Pomorska w Słupsku Zaakceptowano: 05.04.2022
Oryginalna praca badawcza DOI: 10.34858/SNB.6.2021.008
STUDIA NAD BEZPIECZEŃSTWEM
96 Yevheniia Lipiy, Mykola Komziuk, Anna Komziuk
zasad i standardów dobrej administracji. W Ukrainie, aspirującej do pełnego członkostwa
w Unii Europejskiej realizacja, tych zasad jest jednym z zadań priorytetowych, gdyż ozna-
cza pełną ochronę praw i wolności człowieka. Analizowane jest uregulowanie normatywne
i treść tych zasad, w tym legalność, niedyskryminacja, brak nadużycia władzy, poszanowanie
prywatności, poszanowanie poufności, pewność prawa (sądowa ochrona naruszonych praw)
oraz odwołania od decyzji. Stwierdza się, że realizacja tych zasad wymaga stałej i skutecznej
kontroli nad działalnością administracji publicznej, powierzonej wszystkim podmiotom rzą-
dowym, a także członkom społeczeństwa. Wyjaśniono specykę niektórych rodzajów takiej
kontroli: parlamentarnej, prezydenckiej, wewnętrznej administracji (kontrola organów wyko-
nawczych), sądowej, komunalnej i publicznej.
Key words: public administration, functioning, European principles, security, control
Słowa kluczowe: administracja publiczna, funkcjonowanie, zasady europejskie, bezpieczeń-
stwo, kontrola
Nowadays, radical reform of practically all spheres of public administration is ta-
king place in Ukraine. The main purpose of this reform is to ensure the functioning of
a democratic state apparatus for the benet of the people and to signicantly improve
their lives, which also requires improvement in the mechanism of exercising people’s
rights and freedoms. The principles of good administration are fundamental in its fun-
ctioning as they are a guide for the practical implementation of public administration
functions and are aimed at protecting the rights of individuals when dealing with them.
In Ukraine, however, there are still many issues with regard to this, one of which is
to ensure its safe operation and thus provide for the creation of conditions for the free
and full performance of its functions and to prevent violations of the rights, freedoms
and legitimate interests of individuals, the ultimate consumers of government servi-
ces. Implementation of this requires constant and eective control over the activities
of public administration, the leading role in which belongs to civil society institutions.
The legal literature notes the growing popularity in Ukraine of the European con-
cept of governance and its aspect of ‘good governance’, which reects the state (qua-
litative and quantitative characteristics) of key public relations between public autho-
rities and individuals, and provides a number of important indicators for a democratic
society (indexes) which assess the conditional proximity of the country to the ‘pure
types’ of principles and standards of good governance.1
At the same time, the focus is mainly on the general principles of governance
aimed at ensuring the proper functioning of public administration, such as proper
legislation, participation, transparency in decision-making, access to information,
appropriate sta, proper nancial and budgetary management and eciency, etc. We
want to address the principles of good administration, which determine the possibility
of exercising control over the activities of governmental entities in order to ensure
1 A.A. Pukhtetsʹka, Zaprovadzhennya pryntsyp i vta standartiv nalezhnoho uryaduvannya
udiyalʹnosti publichnoyi administratsiyi, http://ekmair.ukma.edu.ua/bitstream/handle/12345
6789/3840/Pukhtetska_Zaprovadzhennia_pryntsypiv.pdf;jsessionid=2CB367A63F732B45EA5
4BBBFB9708EF6?sequence=1, [access: 23.02.2022].
97Implementing “good governance” principles in the practice of public control
the safety of their functioning. These include, in our opinion, the principles of good
administration set out in the Council of Europe Recommendation CM/Rec (2007) 72
and the European Code of Good Administrative Behaviour,3 such as legality, non-
-discrimination, absence of abuse of power, respect for privacy, condentiality, legal
certainty (protection of violated rights), appeals against decisions, etc. Ensuring con-
trol over the proper functioning of public administration is also included in European
standards of good administration.
It is clear that the formulation of certain principles, standards and recommenda-
tions is the basis for their implementation in the relevant legislation, which shou-
ld ensure their actual implementation. In particular, many of them are enshrined in
the European Commission’s Code of Good Administrative Behaviour for Sta of the
European Commission in Their Relations with the Public,4 which includes legality,
non-discrimination, proportionality of measures pursued by the principles on which
relations between the Commission and the public should be based and consistency of
administrative behaviour.
It should be noted that in the national legislation of dierent countries, these principles
are reected dierently. For example, Article 29 of the Constitution of the Republic of Lit-
huania5 denes the principle of non-discrimination as follows: ‘The rights of the human
being may not be restricted, nor may he be granted any privileges on the ground of gender,
race, nationality, language, origin, social status, belief, convictions, or views’. Article 3
of the Law of the Republic of Lithuania ‘On Public Administration’6 suciently denes
the principle of absence of abuse of power, according to which public administration en-
tities are prohibited from performing public administration functions without public ad-
ministration powers granted in accordance with the procedure established by law or make
administrative decisions aimed at achieving goals other than those provided by law or
other regulations.
In the Constitution of the Republic of Poland7 many articles are also devoted to
the mentioned principles. For example, Article 7 quite succinctly and clearly enshri-
nes the principle of legality: ‘Public authorities act on the basis of and within the
law’. Article 32 also summarizes the principle of non-discrimination: ‘No one may be
discriminated against in political, public or economic life for any reason’.
2 Council of Europe Recommendation CM/Rec(2007)7 of the Committee of Ministers to mem-
ber states on good administration, https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-good-
administration/16809f007c, [access: 23.02.2022].
3 The European Code of Good Administrative Behaviour, https://www.ombudsman.europa.eu/en/
publication/en/3510, [access: 23.02.2022].
4 Code of Good Administrative Behaviour for Sta of the European Commission in Their Rela-
tions with the Public, https://ec.europa.eu/info/sites/info/les/code-of-good-administrative-be-
haviour_en.pdf, [access: 23.02.2022].
5 Constitution of the Republic of Lithuania, https://www.wipo.int/edocs/lexdocs/laws/en/lt/
lt045en.pdf, [access: 23.02.2022]
6 Republic of Lithuania Law on Public Administration, https://e-seimas.lrs.lt/portal/legalAct/lt/TA
D/6996d4c0d86111e8820ea019e5d9ad04?jfwid=-fxdp6xrf#part_3e432904ef014c3dad16d29b0
df755fa, [access: 23.02.2022]
7 Konstytucja Rzeczypospolitej Polskiej, http://www.sejm.gov.pl/prawo/konst/polski/kon1.htm, [ac-
cess: 23.02.2022].
98 Yevheniia Lipiy, Mykola Komziuk, Anna Komziuk
These principles are reected in the Constitution of Ukraine8. In particular, p. 2 of
Art. 19 in a generalized form denes the concept of legality in the activities of public
authorities: ‘public authorities and local self-governments, their ocials are obliged
to act only on the basis, within the powers and in the manner prescribed by the Consti-
tution and laws of Ukraine’. Other articles discuss non-discrimination, condentiality,
protection of violated rights, appeals against decisions, etc.
Thus, from the above we can conclude that in legal documents of dierent levels
the principles of good administration, including those relating to the security of public
administration, have been systematically enshrined. The task is for their full and pro-
per implementation and eective control over this process in order to identify and eli-
minate possible violations. The literature emphasizes the importance of implementing
these principles by states seeking to have a good and ecient administration, which
should be carried out, inter alia, on the basis of their proper understanding9.
It is necessary to elaborate in more detail on the content of these principles and the
system of control over their observance. Thus, legality is the leading constitutional
principle of the functioning of public administration, which includes security. The de-
nitions of this concept in the Constitutions of Ukraine and of the Republic of Poland
were discussed above. The analysis of their provisions allows us to summarize that
legality in the eld of public administration means: a) accurate and uniform imple-
mentation of laws by all its subjects; b) compliance of administrative actions with the
state will, which is expressed in laws; c) decision-making by the specied subjects
within their competence, in an established order and a certain form; d) the impossi-
bility of changing the competence of the subject of power by said subject of power;
e) eective control over observance of laws.
Article 2 of the above-mentioned Council of Europe Recommendations also de-
nes the principle of legality in great detail. It stipulates that public authorities must
act in accordance with the law; they should not take arbitrary measures, even in the
exercise of discretion; they must comply with national law, international law and the
general principles of law governing their organization, operation and activities; they
must act in accordance with the rules governing their powers and the procedures set
out in their rules of management; they exercise their powers only if the established
facts and current legislation allow them to do so and only for the purpose for which
they were provided10.
The principle of non-discrimination was also mentioned above. Article 5 of the
European Code of Good Administrative Behaviour deals with ensuring equality.
Thus, when considering public requests and making decisions, the ocial ensures
8 Konstytutsiya Ukrayinyvid 28 chervnya 1996 r., https://zakon.rada.gov.ua/laws/show/
254%D0%BA/96-%D0%B2%D1%80#Text, [access: 23.02.2022].
9 M. Batalli, A. Fejzullahu, Principles of Good Administration under the European Code of Good
Administrative Behaviour. Pécs Journal of International and European Law - 2018/I, http://ceere.
eu/pjiel/wp-content/uploads/2018/08/28_pjielPJIEL1801.pdf, [access: 23.02.2022].
10 Council of Europe Recommendation CM/Rec(2007)7 of the Committee of Ministers to mem-
ber states on good administration, https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-good-
administration/16809f007c, [access: 23.02.2022].
99Implementing “good governance” principles in the practice of public control
compliance with the principle of equality. If there is any dierence in treatment, the
ocial must ensure that it is justied by the objectively relevant features of the par-
ticular case. In particular, the ocial shall avoid any unjustied discrimination be-
tween members of the public on the basis of nationality, sex, race, colour, ethnic or
social origin, genetic characteristics, language, religion or belief, political or any other
opinion, belonging to a national minority, property, birth, disability, age or sexual
orientation.11
Article 7 of this Code also discloses the content of the principle of absence of abu-
se of power: powers are exercised exclusively for the purposes for which they were
granted by the relevant provisions. In particular, an ocial should avoid using those
powers for purposes which have no basis in law or which are not motivated by any
public interest.
The principle of respect for privacy and condentiality is disclosed in Article 9 of
the Council of Europe Recommendation CM/Rec (2007) 7, according to which pub-
lic authorities must respect condentiality, especially when processing personal data.
When public entities are authorized to process personal data or les, in particular by
electronic means, they must take all necessary measures to ensure condentiality. The
rules concerning the protection of personal data, in particular the right to access perso-
nal data and to ensure the correction or deletion of any data that is inaccurate or should
not be recorded, apply to personal data processed by public authorities.12 Article 21 of
the European Code of Good Administrative Behaviour adds that an ocial must avoid
the processing of personal data for unlawful purposes or the transfer of such data to
unauthorized persons.13
The protection of infringed rights and the right to appeal against decisions is en-
shrined in Article 22 of the Council of Europe Recommendation CM/Rec (2007) 7,
which stipulates that individuals have the right to request, directly or exceptionally,
a judicial review of an administrative decision directly aecting them, their rights and
interests. Administrative appeals, prior to judicial review, may, in principle, be po-
ssible. In some cases, they may be required. They may concern an appeal on the merits
or an appeal against the legality of an administrative decision. Individuals should not
suer from prejudices on the part of public authorities to appeal an administrative
decision.14
It is necessary to highlight that we directly link the proper implementation of
governance with ensuring the security of functioning of public administration. This
conclusion can be made, in particular, from the analysis of the so-called security
11 The European Code of Good Administrative Behaviour. https://www.ombudsman.europa.eu/en/
publication/en/3510, [access: 23.02.2022].
12 Council of Europe Recommendation CM/Rec(2007)7 of the Committee of Ministers to mem-
ber states on good administration. https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-good-
administration/16809f007c, [access: 23.02.2022].
13 The European Code of Good Administrative Behaviour. https://www.ombudsman.europa.eu/en/
publication/en/3510, [access: 23.02.2022].
14 Council of Europe Recommendation CM/Rec(2007)7 of the Committee of Ministers to mem-
ber states on good administration. https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-good-
administration/16809f007c, [access: 23.02.2022].
100 Yevheniia Lipiy, Mykola Komziuk, Anna Komziuk
legislation of Ukraine, primarily the Law of Ukraine ‘On National Security of Ukra-
ine’ of 21 June 2018 № 2469-VIII15 and the National Security Strategy of Ukrai-
ne approved by the Decree of the President of Ukraine of 14 September 2020
№ 392/2020.16 For example, the mentioned Strategy recognizes, as threats to the na-
tional security and national interests of Ukraine; insucient eciency of state bo-
dies, crime, inconsistency and incompleteness of reforms, corruption and insucient
protection of property rights, etc. Among the main directions of the state’s internal
political activity to ensure its national interests and security, the Strategy stipulates
that Ukraine is determined to establish the constitutional principle of the rule of law
and equality before the law. The state will, in particular, ensure transparency and acco-
untability of state bodies, integrity of ocials, eective access to justice and improve
pre-trial investigation of criminal oences as well as trials of criminal proceedings
and execution of sentences imposed by courts. The declaration of the principle of zero
tolerance for corruption, ensuring the eective operation of bodies that prevent and
combat corruption oences is also declared. Thus, the prospects are outlined quite
accurately and correctly. The main thing is that they are just as clearly and consistently
turned into a real practice of public administration.
Control over compliance with the principles of good administration in Ukraine
is exercised by virtually all governmental entities, especially law enforcement and
regulatory agencies, as well as members of the public. The mentioned Law of Ukraine
‘On National Security of Ukraine’ denes the principles of democratic civil control,
its principles, subject and system. Hence, the system of civil control consists of con-
trol exercised by the the following; the President of Ukraine, the Verkhovna Rada of
Ukraine, the National Security and Defence Council of Ukraine, the Cabinet of Mini-
sters of Ukraine, executive bodies and local self-government bodies, judicial control
and public oversight. The allocation of control by the National Security and Defence
Council of Ukraine is not entirely clear, as this Council is headed by the President of
Ukraine, so in the theory of administrative law it is considered an element of presi-
dential control.
In its essence, such a system of control reects the structure of public authorities
and local self-government, supplementing them with public actors. It should be emp-
hasized that in Ukraine there is no specic, specialized controlling body at the highest
level of state power, unlike, for example, the Republic of Poland, which in Art. 202
of the Constitution provides for the establishment of the highest body of state control
– the Supreme Chamber of Control. According to Article 203 of the Constitution
of the Republic of Poland, this Chamber supervises the activities of governmental
bodies, the National Bank of Poland, state legal entities and other state organi-
zational units in terms of legality, economy, expediency and good faith. On the
same grounds, the Supreme Chamber of Control may control the activities of other
15 Pro natsionalʹnubezpekuUkrayiny, zakon Ukrayinyvid 21 chervnya 2018 roku № 2469-VIII,
https://zakon.rada.gov.ua/laws/show/2469-19?lang=en#Text, [access: 23.02.2022].
16 Stratehiya natsionalʹnoyi bezpekyUkrayiny: zatverdzhena Ukazom Prezydenta Ukrayinyvid
14 veresnya 2020 roku № 392/2020. https://www.president.gov.ua/documents/3922020-35037,
[access: 23.02.2022].
101Implementing “good governance” principles in the practice of public control
entities such as local self-governments, communal and other organizational units
and entities within the limits in accordance to which they use state or municipal
property and funds.17
Presidential control in Ukraine is divided into direct and indirect control. The rst
is carried out when solving personnel issues, in the rule-making sphere, etc. Indi-
rect presidential control is exercised through auxiliary structures whose activities are
aimed at verifying the implementation by public administration entities of decrees
and orders of the President through the Oce of the President (both in general and
through specialized departments, as well as special entities, such as the President’s
representative in the Cabinet of Ministers of Ukraine).
Parliamentary control is exercised by the Verkhovna Rada of Ukraine and its stru-
ctural subdivisions. Specialized subjects of parliamentary control are committees of
the Verkhovna Rada of Ukraine, temporary special commissions and temporary inve-
stigation commissions. The Accounting Chamber of Ukraine is a permanent body that
carries out activities to control the use of funds from the State Budget of Ukraine. The
Commissioner for Human Rights of the Verkhovna Rada of Ukraine exercises control
over the observance of human and civil rights and freedoms in the activities of public
administration. Finally, control is exercised in the activities of individual deputies (the
right of parliamentary request, participation in verication of compliance with the law
by the subjects of public administration, the requirements for a particular subject of
public administration, etc.).
Internal administrative control (control by executive bodies) includes control of
bodies of general competence – the Cabinet of Ministers of Ukraine, local state ad-
ministrations; departmental control – control carried out by central executive bodies,
their structural subdivisions in relation to subdivisions organizationally subordinated
to them; supra-departmental control – control carried out in relation to things that are
not organizationally subordinated to the subject of control (individual ministries and
other central executive bodies); administrative supervision – the implementation of
special state bodies (state inspections) control and supervisory functions for com-
pliance with various bodies, enterprises, institutions and organizations and citizens,
regardless of their subordination to the rules, norms and standards established in re-
gulations in the relevant eld.
Judicial control is a law-based activity of courts of all types and levels to verify the
legality of acts and actions of public administration entities and their ocials.
Self-governing (municipal) control is exercised in two ways: control over the acti-
vities of local self-governments themselves in the exercise of public administration
activities (a kind of internal control) and control over the activities of local execu-
tive bodies (local state administrations are accountable to the relevant councils for
socio-economic and cultural development programmes and budgets which are held
accountable and under control in terms of the powers delegated to them by the re-
levant councils).
17 Konstytucja Rzeczypospolitej Polskiej, http://www.sejm.gov.pl/prawo/konst/polski/kon1.htm,
[access: 23.02.2022].
102 Yevheniia Lipiy, Mykola Komziuk, Anna Komziuk
It is worth paying attention to the regulation of public control, which in the Law
‘On National Security of Ukraine’, given its specics, is called supervision, because
its subjects have no control (in the classical sense) powers, including the right to in-
terfere in the operational activities of subjects public administration and the right to
prosecute independently. Members of the public mostly detect violations of the law
in the activities of government entities but, nevertheless, cannot undertake personal
measures to address them on their own.
Hence, Article 10 of the above mentioned Law stipulates that citizens of Ukraine
participate in civil control through public associations of which they are members,
through deputies of local councils, personally by appealing to the Verkhovna Rada
Commissioner for Human Rights or state bodies. A public association registered in the
manner prescribed by law is guaranteed a number of rights to exercise public super-
vision. In accordance with the Constitution and laws of Ukraine, as well as statutory
provisions, they may:
1. receive in the prescribed manner from state bodies information on their activi-
ties, except for information with condential access;
2. carry out research on national security and defence, publicly present their results
and create public funds, centres and teams of experts;
3. conduct a public examination of draft laws, decisions, programmes and submit
their conclusions and proposals for consideration by the relevant state bodies;
4. participate in public discussions and open parliamentary hearings on the acti-
vities and development of the security and defence sector, issues of legal and
social protection of military personnel and employees of intelligence and law
enforcement agencies.18
It is clear that these rights of public associations are not limited to the security and
defence sector, there are similar rights in all spheres of life of the state and society.
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Yevheniia Lipiy, Mykola Komziuk, Anna Komziuk
103Implementing “good governance” principles in the practice of public control
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Summary
Ensuring the safe functioning of public administration involves the proper performance of its
functions, which in a concentrated form is reected in the European principles and standards
of good administration. In Ukraine, which aspires to become a full member of the European
Union, the implementation of these principles is one of the priority tasks, because it means
the full protection of human and civil rights and freedoms. The implementation of this task
requires constant and eective control over the activities of public administration, which is
entrusted to all governmental entities, as well as members of the public.
