Counteraction Corruption: New Challenges. Monograph 9785990803657

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ИНСТИТУТ ЗАКОНОДАТЕЛЬСТВА И СРАВНИТЕЛЬНОГО ПРАВОВЕДЕНИЯ ПРИ ПРАВИТЕЛЬСТВЕ РОССИЙСКОЙ ФЕДЕРАЦИИ

ПРОТИВОДЕЙСТВИЕ КОРРУПЦИИ НОВЫЕ ВЫЗОВЫ МОНОГРАФИЯ

Ответственный редактор академик РАН

Т.Я. Хабриева

МОСКВА 2017

INSTITUTE OF LEGISLATION AND COMPARATIVE LAW UNDER THE GOVERNMENT OF THE RUSSIAN FEDERATION

COUNTERACTION CORRUPTION NEW CHALLENGES MONOGRAPH

Chief editor Member of the Russian Academy of Sciences

T.Y. Khabrieva

MOSCOW 2017

УДК 342.5(035.3).111 ББК 67.401.02 Англ. С81

Approved at the Scientific Council of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

Editorial board: Member of RAS T.Y. Khabrieva (chief editor), Doctor of Law L.V. Andritchenko (deputy chief editor), Doctor of Law I.I. Kutcherov, PhD V.Yu. Lukyanova

С81

Counteraction Corruption: New Challenges: monograph / S.B. Ivanov, T.Y. Khabrieva, Yu.A., Tchikhantchin [et al.]; chief editor T.Y. Khabrieva. – М.: Institute of Legislation and Comparative Law under the Government of the Russian Federation. 2017. – 356 с. ISBN 978-5-9908036-5-7 This monograph sums up the results of multidisciplinary scientific research of legal and institutional fundamentals relating to combating corruption that were obtained within the National plan of combating corruption. It defines modern concepts of combating corruption with due account given to new challenges and factors which are conducive to this socially negative phenomenon. The monograph reflects theoretical and methodological rules employed to monitor corruption elements and anti-corruption measures, it also provides recommendations relating to the ways and means to liquidating the causes and conditions for corruption. Under consideration are traditional and new technologies of combating corruption, potentials of legal liability for corruption crimes. It also gives recommendations for national anti-corruption policy improvements that are based on international law tendencies and positive legal experience of international legislation development. The theses of this paper were broadly discussed at international and national science conferences, including the IV and the V Eurasian anti-corruption forums (Moscow, 2015 and 2016), and also during the sixth session of the Conference of States — members of the UN Convention on counteracting corruption (Saint Petersburg, 2–6 Nov. 2015). Theoretical conclusions and practical solutions highlighted in this publication can raise the effectiveness of national anti-corruption strategies, give a new impetus to multidisciplinary scientific studies of the legislation and law enforcement cases, and also get a greater number of people interested in this sphere – practicing lawyers, representatives of business community, graduates, and post graduates, legislative bodies, teachers, students, readers who face the problem of overcoming corruption.

УДК 342.5(035.3).111 ББК 67.401.02 Англ.

© The Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2017

CONTRIBUTORS Ivanov S.B. – Special Presidential Representative for Environmental Protection, Ecology and Transport1 – introduction. Khabrieva T.Y. – Director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation (ILCL), Vice-president of the Russian Academy of Sciences, Member of the Russian Academy of Sciences, Corresponding member of the Academy of International Comparative Law, Doctor of Law, Professor, Honored Lawyer of the Russian Federation, Honored Lawyer of the Republic of Tatarstan, member of the Presidential Committee on combating corruption, President of the Multidisciplinary committee for coordination of scientific and methodological anti-corruption provisions, member of the European Commission for Democracy through Law (Venice Commission) – Role of legal science in counteraction corruption in modern Russia (by way of the introduction); paragraph 1 chapter 1 (co-authored with V.Yu. Lukyanova); paragraph 2 chapter 1; paragraph 3–4 chapter 1 (co-authored with V.Yu. Lukyanova); conclusion. Tchikhantchin Yu.A. – Director of the Federal service for financial monitoring, Chairman of the Eurasian group on combating money laundering and financing of terrorism (EAG), Candidate of Economic Sciences, Honored Economist of the Russian Federation – paragraph 5 chapter 4. Avtonomov A.S. – Counselor – chief researcher (ILCL), Doctor of Law, Professor – chapter 6 (co-authored with N.A. Golovanova, O.I. Semykina); Andritchenko L.V. – Head of the Center for the public law studies (ILCL), Doctor of Law, Professor, Honored Lawyer of the Russian Federation – paragraph 3 chapter 2; paragraph 4 chapter 3; paragraph 3 chapter 4 (co-authored with E.E. Nikitina, E.I. Spector).

1

During the preparation of the manuscript of the monograph S.B. Ivanov held the position of the Head of Administration of the President of the Russian Federation.

3

Contributors

Golovanova N.A. – Leading researcher of the Department of constitutional, administrative and criminal legislation of foreign countries and international law (ILCL), Candidate of Juridical Sciences, Honored Lawyer of the Russian Federation – paragraph 6 chapter 4 (co-authored with A.M. Tsirin, E.I. Spector); chapter 6 (co-authored with A.S. Avtonomov, O.I. Semykina). Gravina A.A. – Leading researcher of the Department of criminal law and criminal procedure and court system (ILCL); Candidate of Juridical Sciences, Associate Professor – paragraph 2 chapter 3. Zaloilo M.V. – Senior researcher of the Department of theory of legislation (ILCL), Candidate of Juridical Sciences – paragraph 2 chapter 4. Zyryanov S.M. – Senior researcher of the Department of administrative legislation and procedure (ILCL), Doctor of Law, Professor – paragraph 3 chapter 3; paragraph 2 chapter 5. Kapustin A.Ya. – First Deputy Director of ILCL, President of the Russian Association of International Law, expert of the Group of States against Corruption (GRECO), Doctor of Law, Professor, Honored Scientist of the Russian Federation – paragraph 1 chapter 2 (co-authored with A.N. Morozov). Kashepov V.P. – Head of the Department of criminal law and criminal procedure; the court system (ILCL), Doctor of Law, Professor, Honored Lawyer of the Russian Federation – paragraph 3 chapter 5 (co-authored with T.O. Koshaeva, A.N. Savenkov). Koshaeva T.O. – Leading researcher of the Department of criminal law and criminal procedure; the court system (ILCL), Candidate of Juridical Sciences, Associate Professor – paragraph 3 chapter 5 (co-authored with V.P. Kashepov, A.N. Savenkov). Kuznetsov V.I. – Senior researcher of the Department of administrative legislation and procedure (ILCL), Candidate of Juridical Sciences – paragraph 4 chapter 5 (co-authored with Yu.V. Truntsevskii). Lukyanova V.Yu. – Head of the Department of legal analysis and forecasting (ILCL), PhD – paragraph 1 chapter 1 (co-authored with T.Y. Khabrieva); paragraphs 3–4 chapter 1 (co-authored with T.Y. Khabrieva). 4

Contributors

Morozov A.N. – Leading researcher of the Department of constitutional, administrative and criminal legislation of foreign countries and international law (ILCL), Candidate of Juridical Sciences – paragraph 1 chapter 2 (co-authored with A.Ya. Kapustin). Nikitina E.E. – Senior researcher of the Department of constitutional law (ILCL), Candidate of Juridical Sciences – paragraph 3 chapter 4 (co-authored with L.V. Andritchenko, E.I. Spector). Nozdratchev A.F. – Head of the Department of administrative legislation and procedure (ILCL), Doctor of Law, Professor, Honored Scientist of the Russian Federation – paragraph 1 chapter 3 (coauthored with A.V. Soroko); paragraph 4 chapter 4. Pavlushkin A.V. – Deputy Head of the legal analysis and forecast department (ILCL), Candidate of Juridical Sciences – tables 1–5 to chapter 1 (co-authored with O.I. Semykina, E.L. Sidorenko). Pozdnysheva E.V. – Leading researcher of the Department of civil legislation and procedure (ILCL), Candidate of Juridical Sciences – paragraph 1 chapter 5 (co-authored with S.A. Sinitsyn). Savenkov A.N. – Doctor of Law, Professor, Honored Lawyer of the Russian Federation – paragraph 3 chapter 5 (co-authored with V.P. Kashepov, T.O. Koshaeva). Semykina O.I. – Senior researcher of the Department of constitutional, administrative and criminal legislation of foreign countries and international law (ILCL), Candidate of Juridical Sciences – tables 1–5 to chapter 1 (co-authored with A.V. Pavlushkin, E.L. Sidorenko); chapter 6 (co-authored with A.S. Avtonomov, N.A. Golovanova). Sinitsyn S.A. – Leading researcher of the Department of civil legislation and procedure (ILCL), Candidate of Juridical Sciences – paragraph 1 chapter 5 (co-authored with E.V. Pozdnysheva). Spector E.I. – Candidate of Juridical Sciences – paragraph 2 chapter 2 (co-authored with A.M. Tsirin); paragraph 5 chapter 3; paragraph 1 chapter 4; paragraph 3 chapter 4 (co-authored with L.V. Andritchenko, E.E. Nikitina); paragraph 6 chapter 4 (co-authored with A.M. Tsirin, N.A. Golovanova). 5

Contributors

Sidorenko E.L. – Head of the Laboratory of criminalistic analysis and forecasting (ILCL), Professor of the Department of criminal law, criminal procedures and criminalistics of the Moscow State Institute of International Relations (University) of the Russian Ministry of Foreign Affairs, Doctor of Law, Professor – tables 1–5 to chapter 1 (co-authored with A.V. Pavlushkin, O.I. Semykina). Soroko A.V. – Director of the Department of state service and human resources of the Government of the Russian Federation, Doctor of Economics – paragraph 1 chapter 3 (co-authored with A.F. Nozdratchev). Truntsevskii Yu.V. – Leading researcher of the Department of methodology of combating corruption (ILCL), Doctor of Law, Professor – paragraph 4 chapter 5 (co-authored with V.I. Kuznetsov). Fedorov A.V. – Deputy Head of the Investigating Committee of the Russian Federation, Candidate of Juridical Sciences, Professor, Honored Lawyer of the Russian Federation, member of the Multidisciplinary committee for coordination of science-educational and methodological anticorruption policies – paragraph 5 chapter 5. Tsirin A.M. – Head of the Department of methodology of anticorruption policies (ILCL), Candidate of Juridical Sciences, Executive secretary of the Multidisciplinary committee of coordination of scientific and methodological anti-corruption policies – paragraph 2 chapter 2 (co-authored with E.I. Spector); paragraph 6 chapter 4 (coauthored with N.A. Golovanova, E.I. Spector).

6

Contents

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ROLE OF LEGAL SCIENCE IN COUNTERACTION CORRUPTION IN MODERN RUSSIA (by way of the introduction). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Chapter 1 CORRUPTION AS A THREAT TO THE SOCIETY AND STATE § 1. Corruption in the present day society and factors, which lead to it. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 § 2. Corruption and legal order: present day context . . . . . . . . . . . . . . . . . . . . 40 § 3. Legal qualification of corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 § 4. State anti-corruption policy: basic directions and new vectors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Chapter 2 DEFINITION OF CORRUPTION IN INTERNATIONAL AND NATIONAL LAW § 1. International treaties and development of Russia’s anti-corruption legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 § 2. Legislation of the Russian Federation on counteracting corruption: a system-format approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 § 3. Legislation of the constituent entities of the Russian Federation and municipal legal acts as the elements of the legal system relating to combating corruption . . . . . . . . . . . . . . . . 97 7

Contents

Chapter 3 INSTITUTIONS ESTABLISHED TO COUNTERACT CORRUPTION IN THE RUSSIAN FEDERATION § 1. The role of the President of the Russian Federation and federal executive bodies in combating corruption . . . . . . . . . . . . .110 § 2. Judicial bodies and combating corruption . . . . . . . . . . . . . . . . . . . . . . . . .126 § 3. Prosecutor’s Office of the Russian Federation and the Accounts Chamber of the Russian Federation in the national anti-corruption system . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141 § 4. Role of state power bodies of the constituent entities of the Russian Federation and bodies of local self-government in combating corruption. . . . . . . . . . . . . . . . . .151 § 5. Participation of civic institutions in combating corruption . . . . . . . . . .166

Chapter 4 PRIORITIES, WAYS AND MEANS OF COMBATING CORRUPTION IN THE RUSSIAN FEDERATION § 1. Contemporary technologies in counter-corruption practices . . . . . . .178 § 2. Formation of anti-corruption legal consciousness and law-obedient behavior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193 § 3. Establishing the system of prohibitions, restrictions and obligations with a view to combating corruption . . . . . . . . . . . . . .201 § 4. Conflict of interest and the ways to get it settled . . . . . . . . . . . . . . . . . . .215 § 5. Financial security of the Russian Federation as a factor to prevent corruption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .234 § 6. Protection of persons informing of facts of corruption . . . . . . . . . . . . . .247

Chapter 5 LIABILITY FOR CORRUPTION-RELATED OFFENSES § 1. Civil liability for corruption-related offenses . . . . . . . . . . . . . . . . . . . . . . . .257 § 2. Administrative liability for corruption-related offenses. . . . . . . . . . . . . .273 § 3. Criminological aspects of corruption manifestations and criminal legal methods aimed at their prevention . . . . . . . . . . . . . .281 § 4. Disciplinary liability for corruption-related offenses . . . . . . . . . . . . . . . .293 § 5. Liability of juridical persons for corruption-related offenses. . . . . . . . .310 8

Contents

Chapter 6 COMPARATIVE LEGAL ANALYSIS OF TRENDS IN FOREIGN LEGISLATIONS IN THE ANTI-CORRUPTION SPHERE § 1. Development trends in foreign legislations . . . . . . . . . . . . . . . . . . . . . . . .318 § 2. Mechanisms employed to combat corruption in public and private spheres in foreign countries . . . . . . . . . . . . . . . . . . . . . . . . . . .323 § 3. Liability for acts of corruption provided for by foreign legislations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .341

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .348

9

INTRODUCTION

Every country strives to successfully solve economic and political problems and ensure decent life standards for its people. This requires a high degree of legislation and legal awareness, strong public order. Any deviation from the rule of law is destructive for the society, the state, and the people. Corrupt offenses are especially dangerous, taking various forms and being found in various areas of social relations. Corruption evolves constantly and has no boundaries being a complex social phenomenon. It is universal and exists in all countries regardless of their social, economic and political development and it also takes new transnational forms. Its causes as well as its consequences pose a significant challenge to governments as they lead to lower efficiency of state institutions, distort the principles of the social system and diminish sharply the potential of law in state administration. Thus, the fight against corruption and anticorruption activities in Russia have been taking systemic offensive nature. The anti-corruption strategy of modern law making and law enforcement aims not just at the inevitable punishment for corrupt actions but also at consistent removal of causes for corruption. The problem of corruption is not a national problem, so international law standard are being actively developed in this area. The Russian Federation is a leader in the legal implementation of the requirements of international anti-corruption conventions along with other countries: nearly all obligations assumed under international treaties are being implemented, adopted by international organization of both global and regional level (United Nations Organization (UNO), the Council of Europe (CE), the Group of States against Corruption (GRECO), Organization for Economic Cooperation and Development (OECD)). The legal regimes of combating corruption are harmonized in the countries of Eurasia. Much attention is paid to studies of similar experience in rapidly developing countries, e.g. in the member states of the BRICS. 10

Introduction

The anti-corruption legislation of the Russian Federation is under constant improvement; it becomes more integral and systemic and is tested seriously. New global challenges foreground combating corruption as a leading function of the government. That is the reason why the National Plan for Combating Corruption for 2016–2017 sets such law making objectives as institutionalization of lobbyism, optimization of the mechanisms of settlement of conflicts of interests which makes scientific research and studies of the world practices most important. Besides, at the present stage, the science of law still has on the table the issues of implementation of provisions of international conventions as regards the institution of liability in the light of different basic approaches of national legal systems; corruption risks; establishment of legal models enabling foreseeing, prevention, identification, preclusion an neutralization of the adverse impact of corruption on the society, state, global business, economic, political and social processes. In addition, the research of regional and municipal legislation should be intensified, as well as the legal and methodological issues of development and implementation of counter-corruption technologies should be considered thoroughly. The Institute of Legislation and Comparative Law under the Government of the Russian Federation has analyzed the development of the Russian legislation and law enforcement practices for many years. The Institute developed a methodological framework in the sphere of anti-corruption measures studies which gained it the status of the Interdisciplinary Center for Coordination of Scientific, Educational and Methodological Support of Combating Corruption. Many works on this topic were issued by the Institute or under the guidance of the leading researchers of the Institute. This monograph is another milestone on the way to the Russia without Corruption state objective. The monograph contains comprehensive legal analysis of combating corruption as a social phenomenon and provides a detailed description of the systemic mechanism of counter-corruption activities. Such approach may be useful for everybody, including federal and municipal officers, businessmen, judges, deputies. A distinctive feature of the book is its truly public spirit, its commitment to the idea that every member of the society should 11

Introduction

be involved in the fight against corruption. The authors believe that the development of a high level of legal awareness and legal culture should combine with clear legislative instruments, establishment of efficient legal regimes and introduction of stringent penalties for acts of corruption. The book is based on different regulative, statistical, scientific and practical material, which made it possible to formulate recommendations on improvement of methods to struggle against cases of corruption. It makes the book useful for broad public interested in combating corruption and strengthening the rule of law.

ROLE OF LEGAL SCIENCE IN COUNTERACTION CORRUPTION IN MODERN RUSSIA (by way of the introduction) Currently, the legal science is especially interested in resolving the following tasks: examination of the role of each factor determining corruption and of their combination on the propagation of corruption; forecasting its possible evolution directions; monitoring of corrupt practices and efficiency of national and international anti-corruption policies; identification of drawbacks, inconsistencies and breaks of system interconnections in the applicable legislation which contribute to acts of corruption. It’s not just about constant improvement of the doctrine base of combating corruption, it’s also about timely identification and examination of its new forms so as to make it possible to develop an appropriate system of preventive measures and penalties matching the corruption threat. Based on its scientific legacy in the sphere of criminal law, the Institute of Legislation and Comparative Law under the Government of the Russian Federation (hereafter the Institute) has recently expanded the range of issues under examination related to combating corruption1. At the first stage, the researchers focused on the doctrinal approach to its definition, the legal basis of combating corruption in Russia, foreign countries, and at the interstate level2. This made it possible to: 1

Since 2011, the Institute coordinates the scientific and methodological support of combating corruption in accordance with the resolution of the presidium of the Presidential Council of the Russian Federation on combating corruption dated February 16, 2011 (Minutes No 22) and the resolution of the Government of the Russian Federation dated January 31, 2012 No 50.

2

Many conclusions and estimations suggested in the fundamental monograph Corruption: nature, practices, combating) (managing editor. T.Ya. Khabrieva. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012), became popular in foreign science and practice. The book was translated into Chinese and published in China.儷崌Ɲ 『崏˚塏䎗᷵⹻⯠ᾫ伾㖖ƌ⒯ⷪ憳倝⧪⋾ẓƝ㲼⽲⇡䈯䤥, 2014.

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Role of legal science in ñounteraction corruption in modern Russia

– provide a broad view of the abilities and peculiarities of the domestic legal and state system, international and foreign practices of combating corruption; – determine the issues relating to implementation of the acts constituting the legal basis for combating corruption; – determine the trends, which should be thoroughly studied to increase the efficiency of legal tools in this sphere. One the most dangerous mutations of corruption is the development of its transnational forms. According to OECD, large transnational companies as initiators of registered cases of bribery around the world attack markets, try to strengthen their positions in them, influence legal regulation, gain support of officials and drive out competitors representing different sectors of national economies. Therefore, we can speak of quality changes of corruption when it transfers from a market model based on bribes mostly to a network model, which depends on membership in elite clubs, pools, groups and families. However, the transnational forms of combating corruption do not develop efficiently enough; the cohort of international legal anti-corruption standards adopted by universal and regional international organizations is characterized by multiplicity of acts, lack of hierarchy and coherence, collisions and inconsistencies. Many control and monitoring institutes (e.g. GRECO) admit arbitrary construction of international anti-corruption standards paying no attention to the peculiarities and traditions of national legal systems1. They do so despite the fact that real corruption processes occur differently in different countries and similar regulatory measures make different effects. For example, the Institute conducted research of implementation of OECD anti-corruption standards in Russia which showed culturological specificity in understanding types and meaning of corruption practices forbidden under the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions dated November 21, 1997 and other related international acts (recommendations), which hinders

1

14

See: Naryshkin S.Ye, Khabrieva T.Ya. Mechanism for evaluation of GRECO anticorruption standards (a comparative legal study) // Journal of Russian Law. 2011. No. 9. P. 5–12.

Role of legal science in ñounteraction corruption in modern Russia

the implementation of respective provisions of the OECD anticorruption standards in the legal system of Russia1. This requires unified rules for construction of resolutions mandatory for member states of various international organizations taking into account their national interests. Such rules should have a scientific basis. The first step to its establishment has been made, the Institute developed criteria for evaluation of the recommendations adopted by international organizations in terms of their compliance with the Russian legal reality2. Another important issue is adaptation of legal norms to law enforcement practice. The Russian anti-corruption legislation is generally recognized to comply with the best international practices. However, there happen regular failures of implementation of provisions of legislative and regulatory acts. For instance, despite the directions in the federal legislative acts and the legislative acts of the constituent entities of the Russian Federation, the mechanisms of public reporting of governmental bodies do not develop efficiently, which is especially obvious at the regional level. The potential of independent experts is not used as far as it is necessary. Establishment of public control mechanisms is delayed which constitute a most important social instrument for corruption prevention. Negative trends can be traces in the anti-corruption legislation: as the legal acts increase in number, the lack of coherence between documents of different legal force and sectoral profile is getting more evident, as well as their different focus3. Meanwhile, the solution to the issue of combating corruption requires a systemic and balanced anti-corruption legislation, improvement of intersectoral systemic interrelations, prevention of collisions of anti-corruption and other industry standards. In this situation, the search for methods to increase the efficiency of legal regulation in the area of combating corruption becomes another priority for the legal science. 1

For details, see: The Anti-Corruption Standards of the Organization for Economic Cooperation and Development and their implementation in the Russian Federation / S.V. Borisov, А.А. Kashirkina, А.N. Morosov et al.; edited by T.Ya. Khabrieva, А.V. Fedorova. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015.

2

See: Program of international scientific monitoring of corruption practices (MONKOR) / V.P. Yemelyantsev, V.I. Lafitsky, O.I. Semykina et al.; under the guidance of T.Ya. Khabrieva; Institute of Legislation and Comparative Law under the Government of the Russian Federation. Moscow, 2015.

3

Those issues are considered in more detail in Chapter 1, par. 2 and Chapter 2, par. 2 of this book.

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Role of legal science in ñounteraction corruption in modern Russia

In 1960–1980s, the Institute conducted a series of fundamental studies related to the issues of efficiency of law1, but then those topics lost their importance. Now, they are in the focus again2, which is reflected, for instance, in the methods of evaluation of regulatory impact prepared by the Ministry of Economic Development of Russia and in scientific papers of applied and fundamental nature. In 2015, the Institute conducted research which showed that while evaluating and forecasting the efficiency of a legislative act, it’s necessary to take into account not just only the legal but also historical, cultural, ethnopolitical, confessional, and other peculiarities of a country, of every ethnos, or, as far as the Russian Federation is concerned, of ethnic groups3. Incomplete and/or inaccurate record of the basic regularities of social and economic development results not only in lower efficiency of legislation4 but also in that the laws and regulations cease to be the main regulator of social relations. Such comprehensive approach is especially important for combating corruption as, on the one hand, it reveals the essence and 1

See: Samoshchenko I.S., Nikitinsky V.I. On the notion of efficiency of legal norms // Bulletin of AllUnion Research Institute of Soviet Legislation 1969. Issue No. 18. P. 3–19; Samoshchenko I.S., Nikitinsky V.I. Purposes of legal norms – scale of their efficiency evaluation // Bulletin of All-Union Research Institute of Soviet Legislation. 1969. Issue No. 19. С. 46–61; Shargorodsky M.D. System of penalties and their efficiency // Soviet State and Law. 1968. No. 11. P. 54; Samoshchenko I.S., Nikitinsky V.I., Vengerov A.B. On the basics of methodology and methods of studying the efficiency of effect of legal norms // Bulletin of All-Union Research Institute of Soviet Legislation. Issue No. 25. Moscow, 1971. P. 3–40; Efficiency of legal norms / V.N. Kudryavtsev, V.I. Nikitinsky, I.S. Samoshchenko, V.V. Glazyrin. Moscow, 1980. In those studies the notion of efficiency and economic feasibility of a legal norm were strictly differentiated: the researchers believed that «a legal norm may be efficient, i.e. taking us to an objective set, but not economically feasible as the funds spent on it do not pay; similar or better results may be achieved in a different more economic way». However, in market economy the efficiency of any action, especially of a legal act aimed at combating corruption is determined not just by achievement of objectives but also by the balance of the result and the resources spent to achieve it.

2

E.g., see: Radchenko V.I., Ivanyuk O.A., Plyugina I.V., Tsirin A.M., Chernobel G.T. Practical aspects of legislation forecasting and efficiency of application of the forecast norms // Journal of Russian Law. 2008. No 8; Khabrieva T.Ya. Modern legal technologies in the theory and practice of law making and law enforcement // Efficiency of law making and modern legal technologies: meeting proceedings of International workshop of young law scientists (Moscow, May 29–31, 2008). Moscow, 2009. P. 4; Legislation Efficiency in Economy: Science and Practical Research/ managing editor. Yu.A. Tikhomirov Moscow, 2010.

3

See: Efficiency of Legislation: theoretical and practical issues / Yu.A. Tikhomirov V.P. Yemelyantsev, A.A. Ayurova et al.; managing editor Yu.A. Tikhomirov V.P. Yemelyantsev. Moscow, 2015.

4

See: Kotsoev A.G. On methodology of research of economic efficiency of law// Economic efficiency of law: proceedings of the roundtable of the V International workshop of young law scientists (Moscow, May 26–28, 2010) / managing editor N.G. Doronina. Moscow, 2011. P. 44–52.

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Role of legal science in ñounteraction corruption in modern Russia

the reasons of unsolved issues and, on the other hand, it sets the limits for the applicability of legal regulators of anti-corruption activities. Corruption as a social phenomenon is determined by factors of different nature, both economical and political. Respectively, not only measures used in different areas of social life should be opposed to it but also the stable rule of law minimizing corruption practices and based on zero tolerance of the society to corruption when the corruption is viewed «not just illegal, but indecent».1 The legal science also faces another problem: to find an optimal combination of legal and non-legal regulatory methods. Both are closely related to each other and aim mostly at support of complex models of human behavior. However, in the Russian Federation such methods are often mixed up. For example, both the recommendations of various international organizations and scientific research conducted by Russian and foreign scientists emphasize the anticorruption role of ethical codes. It was specifically noted that they can increase the efficiency of legal systems but only provided that their content is not abstract but clearly targeted and reflecting the specificity of their application, and they complement but not duplicate or replace the legal norms2. Currently, such codes are adopted not only by governmental bodies but also by private entities including in the Russian Federation. However, many governmental and local authorities introduce ethical codes that are supposed to guide civil servants in their activities by orders (decrees) and event provide for legal3 liability (including

1

URL: http://www.kremlin.ru/events/president/news/4150

2

For details, see: Legal innovations in combating corruption: proceedings of the First Eurasian Anti-Corruption Forum and VII International Workshop of Young Law Scientists (Moscow, May 30–31, 2012) / T.Ya. Khabrieva, S.Ye. Naryshkin, S.V. Stepashin et al.; managing editor. L.V. Andritchenko, А.M. Tsirin. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012; Modern Standards and Technologies of Combating Corruption: proceedings of the Third Eurasian Anti-Corruption Forum (Moscow, 24–25, 2014) / S.Ye. Naryshkin, T.A. Golikova, T.Ya. Khabrieva et al.; managing editor T.Ya. Khabrieva. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015.

3

E.g., see: Code of conduct of civil servants of the Federal Tax Service approved by Order of the Ministry of Finance dated April 17, 2014 No 115; Code of conduct of civil servants of the Federal Financial Monitoring Service, approved by Order of the Federal Financial Monitoring Service dated March 25, 2011 No 109.

17

Role of legal science in ñounteraction corruption in modern Russia

criminal1) for violation of such codes. That nullifies the role of the ethical code and it becomes another operating instruction. In this respect, it is of the utmost importance to differentiate between different forms of social regulation and basis for their application. Such differentiation should be based on comprehensive examination of basic regularities of the social and economic development, arising risks and typological predictors of corruption as a social phenomenon. Corruption is a social projection of psychological laws, ideas, moral, social and cultural and other imperatives of the social activities of the people prevailing in the society. So, studying its typological predictors particularly implies studying the interrelation between the intensity of corruption practices and the continuity of the parameters of acmeological well-being of a person such as comfortable life sustenance, productivity, effectiveness, efficiency of professional development and activities, optimality of regulatory effects of motivation on the personality, creativity, psychosomatic risks. Only in this situation, both law, which, in P. Bourdieu’s apt words, is «the highest form of active discourse with the power to cause real consequences»2 and non-legal regulators of anti-corruption activities may together become a powerful tool of conscious administration of combating corruption. This task cannot be solved without the whole arsenal of the social sciences, not just law, but also philosophy, economy, history, sociology, political science. It is the interdisciplinary approach that can secure the efficiency of combating corruption. It is also important to combine the interdisciplinary and specialized approaches, applied and fundamental research. These are the principles the work of the Institute is based in the sphere of combating corruption. The Institute started its work as a research center studying crime and criminals, relations between the economic conditions of a person’s life and criminal behavior, so it has vast experience in conduct of comprehensive interdisciplinary 1

E.g., see: Code of Conduct of municipal officers of the Noginsk Municipal District approved by Order of the Head of the Noginsk Municipal District, Moscow Region, dated August 22, 2012 No 33. URL: http://ног.рф/oficialnaya_informaciya/postanovleniya_glavy_noginskogo_ municipalnogo_ rajona/

2

Bourdieu, P. The Force of Law: foundations of sociology of the legal field // Sotsialnoye prostranstvo: polya i praktiki [. Moscow, St. Petersburg, 2007. P. 104–105.

18

Role of legal science in ñounteraction corruption in modern Russia

research. The scientific studies using the tools of the legal science together with the methods of sociological and economic analysis were established in the Institute rather a long time ago. In the first decades of the XX century, professor M.N. Gernet developed a comprehensive theory of crime sociology widely recognized both in Russia and abroad1. The theoretical approaches and methods he developed are still hold sway as well as the tradition of in-field empiric research the Institute conducted in different periods of its existence. These traditions made it possible for the Institute to perform the functions of the Interdisciplinary Center for Coordination of Scientific, Educational and Methodological Support of Combating Corruption, increase its scientific potential and the number of works on this topic. Among them, we should note the monograph Legal Arrangements for Implementation of Anti-Corruption Conventions2 and a number of scientific and methodological guidebooks aimed at the studies of the practice of application of anti-corruption mechanisms3, as well as methodological approaches to identification and evaluation of the scale of corrupt practices developed within the framework of the f international scientific monitoring of corruption practices4 (hereafter MONKOR)5. 1

On the sociological law school in the Institute see: Pages of history and essays about scientific schools of the Institute of Legislation and Comparative Law under the Government of the Russian Federation / Е.А. Pryanishnikov, T.Ya. Khabrieva, V.I. Lafitsky, et al. 4th, enlarged and revised ed. Moscow, 2015. P. 365–370.

2

Legal arrangements for implementation of anti-corruption conventions: monograph/ Т.Ya. Khabrieva, О.I. Tiunov, V.P. Kashepov et al.; managing editor О.I. Tiunov. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012.

3

See: Legal protection of individuals informing of corruption events: scientific and practical guide / V.Yu. Artyomov, N.A. Golovanova, S.A. Kubantsev et al.; managing editor A.M. Tsirin, Ye. I. Spector. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2016; Conflict of interests in state and municipal service, in the activities of organization: causes, prevention, settlement: scientific and practical guide / T.S. Glazyrin, T.L. Kozlov, N.M. Kolosova et al.; managing editor A.F. Nozdrachev. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2016.

4

Program of international scientific monitoring of corruption practices (MONKOR) / V.P. Yemelyantsev, V.I. Lafitsky, O.I. Semykina et al.; under the guidance of T.Ya. Khabrieva; Institute of Legislation and Comparative Law under the Government of the Russian Federation. Moscow, 2015.

5

Correlation of anti-corruption measures and causes and conditions for its emergence: scientific and practical guide / Ye.I. Dobrolubova, А.V. Pavlushkin, E.L. Sidorenko et al.; edited by V.N. Yuzhakov, А.М. Tsirin. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2016.

19

Role of legal science in ñounteraction corruption in modern Russia

Those works confirm the necessity for constant update of doctrinal approaches to the problem of corruption which will make it possible to evaluate the abilities of the domestic legal and institutional system of the Russian society as a whole to combat corruption, identify the potential of legal arrangements and methods of legal regulation of social relations so as to establish an efficient model of prevention and preclusion of corruption and based on this to determine the priorities of improvement of legal regulation. These were the objectives the authors set to themselves when starting this book, which is in compliance with the logic of examination of the general theoretical and applied issues of increased role of law in combating corruption. Chapter one provides an evaluation of the current state of corruption and of the system of combating corruption. The social and economical, social and psychological, political and other factors determining the corruption level in the Russian society are generalized. The emphasis is laid on the use of the results of sociological research and MONKOR tools, the influence on the development of public practices and corruption level of the myths rooted in the public consciousness that banalize and fatalize corruption. Taking into account that evolution, organizational forms and dynamics of corruption require whole new approaches to the task of combating corruption, the broad context of research is offered, namely, studies of mutual influence of corruption and rule of law, and the rule of law is viewed not as the object of adverse influence of corruption which should be protected but also as an efficient means of combating corruption. The deviant nature of corruption is revealed through a delictological description of this social phenomenon. Proposals are motivated regarding adjustments of the state anticorruption policy. In Chapter two of the monograph, a detailed analysis is provided of the corpus of laws and regulations governing combating corruption in the Russian Federation. The authors provide a review of the system of international anti-corruption acts resulting in international obligations of the Russian Federation and also identify the legal problems of implementation of the norms of international conventions in the legal system of Russia as well as difficulties the implementation of the conventional provisions faces. The evaluation of the legal framework for combating corruption established at the national level 20

Role of legal science in ñounteraction corruption in modern Russia

was performed from the perspective of constitutional fundamentals of division of powers between the authorities of different territorial levels. The major stages and courses of development of the anticorruption legislation and municipal legal acts are shown taking into account the changing social and economic practices. This is important both from the scientific and practical perspective for the national policy in the area of combating corruption, improvement of law enforcement practices, forecasting legislation development. Chapter three is devoted to the study of the processes of formation and development of the organizational institutes of combating corruption in which the leading role belongs to the President as a guarantor of rights and liberties of a man and citizen. The functions and powers are reviewed of both federal executive bodies and regional and municipal authorities as well as of civil institutes. It is emphasized that a uniform state policy at all levels of power predicated the necessity for unification of the organizational models of combating corruption at the regional and municipal levels. This, however, does not exclude but rather implies peculiarities of certain regional models due to the specificity of corruption risks, structure of acts of corruption and methods of their performance characteristic of each constituent entity of the Russian Federation. Special emphasis is laid on determination of the efficiency of national and international anti-corruption regulators, applicability of new legal technologies (including legal monitoring, forecasting, expert evaluation) as well as problems of legal regulation of the system of anti-corruption restrictions and prohibitions. The authors come to the conclusion that analysis (including by computer modelling) of cash flows and their monitoring («staining» of suspicious cash flows) may be one of the most important trends of anti-corruption work as well as establishment and development of international and national arrangements of repatriation of corruption gains. The problem of conflict of interests, mostly in the state civil service and the municipal service, is also very important. The book deals with a bunch of legal programs relating to the causes and conditions of conflict of interests. A detailed study is performed of the legislation governing the relations connected with such situations and their settlement; gaps are identified in the legal provisions on the conflict of interests and drawbacks in their application; proposals are made on improvement 21

Role of legal science in ñounteraction corruption in modern Russia

of the legal mechanism for prevention, identification and settlement of conflicts of interest. All these issues are discussed in Chapter four of the monograph. It has been noted already that combating corruption requires the use of mechanisms of state coercion so Chapter five deals with the abilities of institutions of civil, disciplinary, administrative and criminal liability for corruption offenses. Many issues under examination are of polemical character and reflect the scientific positions of the authors, particularly, the institute of criminal liability for juridical persons which does not fit into the Russian legal doctrine but the introduction of which is required by international control and monitoring bodies. The modern stage of development of the human society is characterized by the expansion and intensification not only of the globalization processes which entail unification of corruption practices and methods of combating them but also of the processes or regionalization of the world which make the legal science take into account the legal and civilizational specificity of countries participating in any integration associations offering consistent legal solutions. So, Chapter six of the monograph is devoted to the comparative legal analysis of anti-corruption measures used in various countries. It deals with the tendencies of development of anti-corruption legislation of foreign countries, legal arrangements for combating corruption in the public and private spheres including legal regulation of lobbying. Altogether, the comprehensive analysis of the situation of combating corruption in the Russian Federation may become another step along the road to establishing an efficient and self-adapting anti-corruption system.

22

Chapter 1 CORRUPTION AS A THREAT TO THE SOCIETY AND STATE § 1. CORRUPTION IN THE PRESENT DAY SOCIETY AND FACTORS, WHICH LEAD TO IT

Corruption is a complex multi-aspect social phenomenon, which adversely affects all spheres of the state and society and not just decreases the efficiency of state institutes but also undermines the authority of the government and the prestige of the country. Starting from the second half of the XX century, transnational or international acts of corruption occur more frequently, they take place in the sphere of international and interstate relations endangering the stability of the functions of the state as a participant of such relations. Also the «corrupt nature of the regime» becomes often a reason for applying pressure to the state or interfering into its affairs by other states of interstate associations. Thus, high corruption level threatens the sovereignty and safety of the state. Corruption makes a similar destructive impact on the internal policy: in accordance with the principle of holographicity, i.e. unity and diversity of the world1, corrupt governmental bodies and even their individual representatives are perceived by the public opinion as the reflection of the state in general. Thus, corruption «undermines the very basis of the human civilization, interferes with the normal course of development of all spheres of the human life, decreases their morals and material well-being and makes worse a crisis which is among the most dangerous for normal human life and for business, crisis of trust»2.

1

This principle was first formulated by B. Pascal in XVII century and was further developed in the works of the modern French philosopher E. Morin. For details, see: Morin E. Method. Moscow, 2005.

2

Naryshkin, S.Ye. International community in combating corruption // Legal innovations in combating corruption: proceedings of the First Eurasian Anti-Corruption Forum and VII International Workshop of Young Law Scientists (Moscow, May 30–31, 2012) / managing editor L.V. Andritchenko, А.M. Tsirin. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012. P. 36.

23

Chapter 1.

Corruption as a threat to the society and state

One of the priority areas of improvement of the quality of public administration and ensuring progressive development of the country is development of a system of measures of combating corruption. In a long-term perspective such system of measures can be efficient only if it is aimed not only at the decrease of corruption offenses but also at the identification and removal of causes for their emergence and propagation1. Although corruption is beyond the legal model of social practice, it still reflects the processes taking place in the society, common political, social and economic problems of the country, so it is necessary to examine social and economic, organizational and legal phenomena among the social factors stimulating corrupt practices.

1

24

To support this position, we can note that according to a survey conducted by the All-Russia Public Fund «Public Opinion» in December 2014 in 45 constituent entities of the Russian Federation, the proportion of individuals estimating the corruption level in the country as high, decreased compared to the proportion in March 2012 by 14 points (to 66%). People would say less often that corruption increases and more often that its level does not change. For instance, in 2014, 22% of the respondents spoke of increased corruption levels and another 50% thought that the corruption level did not change. In 2010, those figures were 28 and 40% of the respondents, respectively. Similar results were received by the Russian Public Opinion Research Center (VCIOM). According to this organization, in 2015 the Corruption Perception Index indicating how successfully, in the opinion of the Russian people, the nation’s leadership fights with corruption, moved from negative to positive for the first time in ten years. About one half of our compatriots see positive results of the government’s activities in the sphere of combating corruption (48% compared to 30% in 2005) and the index demonstrating how high the respondents believe corruption to be in their neighborhood decreased by 8 points from March to October, 2015 to 56 points in October (historic minimum). But many (even too many) respondents believe the incidence of corruption in their native city/town lower than in the society in general. People from Moscow and Saint Petersburg make such estimates more often than people from smaller cities (64% versus 43%). This data may be interpreted as follows: individuals who estimate corruption in their native place lower than in the society in general, normally do not encounter corruption practices personally but «know» that the Russian society or at least it governmental bodies are «totally corrupt». They know it from mass media, which make up and support the image of corruption as a powerful and invincible system implanting a behavior model stimulating corrupt behavior. As a result, the Russian society is rather indifferent to corruption crime. For example, according to a survey performed by the All-Russia Public Fund «Public Opinion» in December, 2014 in 45 constituent entities of the Russian Federation, 61% of Russian people condemn people taking bribes (in March, 2012 that figure was 67%) 29% do not condemn them. People giving bribes are condemned by 42% and not condemned by 45% of our compatriots. 23% of respondents admitted giving a bribe to an official. The attitude of the people to prostitution is more negative than to corruption: 37% of respondents justify bribery and only 25% justify prostitution. See: Official website of the Russian Public Opinion Research Center (VCIOM): URL: http://wciom.ru/index.php?id=236&uid=115440; Official website of independent sociological service Public Opinion Fund (FOM): http://fom.ru/ Bezopasnost-i-pravo/11912; http://fom.ru/Bezopasnost-i-pravo/138; Yegorshin V.М. Economic crime and security of the present-day Russia (theoretical and criminological analysis): extended abstract of Doctor of Sci. (Law) dissertation. St. Petersburg, 2000. P. 32.

§ 1. Corruption in the present day society and factors, which lead to it

The main factors determining corruption are social and economic factors. The current stage of development of the Russian society is determined by transition form planned to market economy, which is accompanied by many adverse consequences. Among them the following should be specifically noted: – income inequality of the people. The interdependence of the criminalization of the society and a package of social and economical factors is shown in many economic1 and criminologic studies which show that «... the most adverse state of crime can be observed in the region where the standards of life are better by most significant indicators (average wages, per capita money and real income, etc.) but the contrast (gap ratio) in the level of well-being of different social groups is more significant»2. According to the Federal State Statistics Service3, in 2013 the income of 10% of wealthiest individuals exceeded the income of 10% of the poorest individuals by over fifteen-fold, however, no efficient measures to decrease the gap between the social groups inside the country have been developed yet. This situation provides favorable conditions for both the shadow economy which, according to some estimates, includes up to 50% of economic turnover4 but also for people’s deviant behavior, including corruption; – compliance of individuals and business entities with the «efficiency ethics inherent to capitalism which is based on capital calculation»5. According to this ethics, in the situation of market 1

E.g., see: Bekker G.S. Human behavior: economic approach. Selected works on economic theory. Moscow, 2003; Barsukova S.Yu. Informal economy: economic and sociological analysis. Moscow, 2004; Barsukova S.Yu. Merger of shadow economy and shadow politics (as exemplified by financing electoral campaigns and activities of political parties) // Shadow economy – 2007: economic analysis of criminal and law enforcement activities / edited by. L.N. Timofeeva. Moscow, 2008; Gilinsky Ya.I. Socio-economic inequality as a criminogenic factor (from K. Marx to S. Olkov) // Economy and law. Saint Petersburg, 2009; Olkov S.G. Analytical criminology. Kazan, 2007; Shipkova О.Т. Socio-economic determination of crime (evidence from the constituent entities of the Siberian Federal District)) // Shadow economy – 2007: economic analysis of criminal and law enforcement activities / edited by. L.N. Timofeeva. Moscow, 2008.

2

Sakharov А.B. Social conditions and crime // Methodological issues of studying social conditions of crime. Moscow, 1979. P. 29.

3

Official website of the Federal State Statistics Service: URL: http://www.gks.ru/free_doc/new_ site/population/urov/urov_32g.htm

4

Quoted from: State policy of combating corruption and shadow economy in Russia: monograph in 2 vol./ edited by. S.S. Sulakshin. Vol. 2. Moscow, 2009. P. 47–49.

5

Kozlovsky P. Farewell to Marxism-Leninism. On the logic of transition from developed socialism to ethical and democratic capitalism. St. Petersburg, 1997. P. 69.

25

Chapter 1.

Corruption as a threat to the society and state

economy every natural or juridical person should, on the one hand, strive to maximize its profit and, on the other hand, externalize its costs, putting them on the society or other market participants. These objectives can be achieved by application of corruption arrangements, e.g., non-market preferences, destruction of competitors using administrative resources; – periodical economic and financial crises and unemployment. Instability and weakness of the Russian economy, financial and economic crisis, deficiencies in the sphere of manufacture and distribution of material values influence many adverse processes in the society including crime. As for unemployment, it may have not just economic consequences consisting in receiving less profit by a person or lower gross domestic product. At the individual level, the non-economic consequences of unemployment consist in that if an individual cannot find a job for a long time, it often leads to psychological stress, despair, nervous and cardiovascular diseases, family breakup. Loss of stable source of income provokes deviant antisocial behavior. At the level of the society, this leads to the increase in social tension, insecurity and, as a consequence, to the «as if there were no tomorrow» ideology. According to many researchers1, increase in the number of corruption offenses is also due to the fact that the majority of the people are not ready to the new economic reality because of which people do not know the whole set of rights and obligations they have, procedures for execution of certain transactions, they are not aware of the guaranties in the sphere of civil circulation, etc. It should be noted that the socio-economic system developing in Russia since early 1990s does not have much in common with the «ethical capitalism based on the economic theory of social and ethical market business and on the political theory of parliamentary democracy»2 as they declared at the initial stage of transformation of the Soviet society. In this respect, from the perspective of the economic science, corruption payments in the present-day Russia should be viewed not as specific redundant transactional costs 1

E.g., see: Grib V.G., Adamyan R.E. Factors influencing the struggle with theft and corruption // Russian investigator. 2015. No. 13.

2

Kozlovsky P. Principles of ethical economy. St. Petersburg, 1999.

26

§ 1. Corruption in the present day society and factors, which lead to it

but as relations of withdrawal (redistribution) of surplus product characteristic of archaic forms of economy that emerged in Russia at the turn of the XXI century.1 That is why the «indecent» forms of social behavior, including corruption will disappear only after elimination of the economic basis for such relations, i.e. the archaic forms of economy. This shows the necessity for rapid modernization of the Russian economy so as to achieve the level of economic and social development appropriate for the status of Russia as a major power of the XXI century taking leading positions in the global economic competition, ensuring national security and constitutional rights of its citizens2. Speaking about the political factors of corruption, it should be noted that understanding of this category changes as time passed. For a long time the idea prevailed, that the problem of combating corruption should be solved by law enforcement bodies. But at the turn of the XXI century it was clear that the law enforcement bodies alone cannot cope with corruption as its increase was also due to serious misjudgments made in the course of reforms of the social and political order of the country and of the principles of economic and other activities. For example, under Regulation of the Council of Ministers of the RSFSR dated February 22, 1991 No 112 Issues of the State Committee for the Supervision of Safety Practices in Work in Industry and Mining Supervision under the Council of Ministers of the RSFSR,3 the bodies of Gosgortechnadzor could perform business activities, i.e. provide paid services to associations, enterprises and organizations and other business entities. Regulation of the Government of the RF dated June 24, 1999 No 688 On Additional Sources of Financing Expenditures to Support Territorial Bodies of the Federal Mining and Industrial Inspectorate of Russia4 specifying the respective norms suggested that Gosgortechnadzor should use 1

E.g., see: Nikolaeva U.G. Corruption as a type of socio-economic relations in the present-day Russian society // Combating corruption as the major condition for establishment of a lawgoverned state. A.I. Komarov. Moscow, 2009. V. 1 (39). P. 93–94.

2

See: Concept of long-term socio-economic development of Russia till 2020, appr. by Decree of the Government of the Russian Federation dated November 17, 2008 No 1662-r // Official Gazette of the Russian Federation. 2008. No. 47. Art. 5489.

3

ConsultantPlus Legal Reference System. The document has not been published.

4

Official Gazette of the Russian Federation. 1999. No. 27. Art. 3375.

27

Chapter 1.

Corruption as a threat to the society and state

the funds received from delivery of paid services for its own benefit to support its territorial bodies (except expenditures on monetary pay to federal public servants) as well as for sectoral purposes. That means that a governmental authority performing control and supervision over compliance with safety requirements on behalf of the government and entitled to suspend or stop the activities of any economic agent if the latter violated safety rules had the right to have exchange relationships with that agent. It is not just that it had such right; it actually had to earn money to support its territorial bodies. It is obvious that such situation did not favor efficient performance by Gosgortechnadzor of its functions to prevent accidents and industrial injuries, to protect public interests but rather made corruption common and banalized it in the public consciousness. The Regulation of the Government of the RF On Additional Sources of Financing Expenditures to Support Territorial Bodies of the Federal Mining and Industrial Inspectorate of Russia was invalidated only in 2004.1 But the reality shows that some bodies of Rostechnadzor still deliver some «paid services», now unofficially, via «trusted» juridical persons. In particular, it was revealed in investigations conducted by the bodies of the Investigative Committee of the RF in regard of officials of the Central Administration of Rostechnadzor, Lower Volga Interregional Administration of Engineering and Environmental Supervision of Rostechnadzor and some others2. This example is not unique which is emphasized by provisions of the National Security Concept of the Russian Federation approved by the President of the RF in 1997: «Serious misjudgments made at the initial stage of reforms the economic, military, law enforcement and other areas of governmental activities, weakening of the system of government regulation and control, inadequacy of the legal framework and lack of strong state policy in the social sphere, lower spiritual potential of the society are the major factors determining increase in... corruption. The consequences of those misjudgments show in weaker legal control over the situation in the country, merger of certain elements of the executive and legislative power with criminal 1

See: Regulation of the Government of the RF dated July 13, 2004 No 349.

2

URL: http://sledcom.ru/search?q=%D0%A0%D0%BE%D1%81%D1%82%D0%B5%D1%85% D0%BD%D0%B0%D0%B4%D0%B7%D0%BE%D1%80

28

§ 1. Corruption in the present day society and factors, which lead to it

structures, their penetration in the sphere of administration of the banking business, large-scale industry, commercial organizations and commodity distribution networks So combating... corruption is not just a legal but also a political issue»1. Under the influence of these factors as well as a series of criminological and other scientific studies of corruption in late 1990s and early 2000s, the idea got a foothold in the public opinion that to fight corruption the political will is the most important factor, i.e. the will of the state leadership to purposefully and consistently combat corruption-related crimes. However, the evidence from practice shows that in the absence of support from all strata of society even the most perfect anticorruption legislation is doomed to be a declaration and the work of the law enforcement bodies will be an imitation of anti-corruption activities. For example, according to the Supreme court of Russia, in 2008–2010 most corruptionists were officers of law enforcement agencies, doctors and teachers, it was mostly the so called bottom corruption when people were accused for bribes in the amount of 2–3 thousand rubles, sometimes even less, in more than one hundred cases the bribe amount did not exceed 500 rubles2. At the same time the decision on criminal prosecution of high ranking officers were often made not based on the legal grounds but on the political practicability, partisan interests, proximity of the person to senior leadership. The slogan of combating corruption was used to fight with political rivals. That is why the President of the RF noted in his Address to the Federal Assembly of the RF of December 12, 2012 that active civic participation and efficient public control is a necessary condition of efficiency of combating corruption3. In other words, to combat corruption, the political will of the leadership is not enough, all mechanisms and institutes of democratic society should function 1

Rossiyskaya Gazeta. 1997. December 26. The document was invalidated on May 12, 2009 in relation to the issue of the Decree of the President of the RF dated May 12, 2009 No 537.

2

Rossiyskaya Gazeta. 2009. January 29. See also: Nikitin D.A. State and dynamics of bribery in the present-day Russia // Burning issues of combating corruption and organized crime: collection of scientific papers following the results of science and practical seminar in the Moscow University of the Ministry of Internal Affairs (April 29, 2009 г.) / edited by professor. N.G. Kadnikov and М.М. Malykovtsev. Moscow, 2009.P. 154.

3

Rossiyskaya Gazeta. 2012. December 13.

29

Chapter 1.

Corruption as a threat to the society and state

consistently. Sovereign democracy, combination of sovereignty and democracy, presupposes that the people perform the administration of state and public affairs through the civic institutes empowered by the people and the public authorities, which are most important channels of democracy being formed democratically and under control of the people1. This concept is based on the principle enshrined in Art. 3 of the Constitution of the RF, which determines the key role of the multinational Russian people in execution of political power in the Russian Federation. Currently, efforts are made in the Russian Federation aimed at increase of involvement of various public institutes in anticorruption activities. Federal laws have been adopted, like Federal Law dated May 7, 2013 No 77-FZ On Parliamentary Control2, Federal Law dated July 21, 2014 No 212-FZ (On the Basics of Public Control in the Russian Federation3 which determine the organizational and legal mechanisms people may use to supervise the activities of state government bodies, local government bodies, state and municipal organizations, as well as control, analyze and evaluate the acts they adopt and the decisions they make. Additionally to Federal Law dated April 4, 2005 No 32-FZ On the Public Chamber of the Russian Federation4 regulating the activities of the respective public institute at the federal level, Federal Law dated June 23, 2016 No 183-FZ On the General Principles of Organization and Activities of Public Chambers of Constituent Entities of the Russian Federation5 was adopted which aims at establishment of equal conditions for functioning of regional public chambers in the territory of the Russian Federation, unification of their status, procedure for establishment and tasks resolved. Federal Law dated May 7, 2013 No 73-FZ On Business Rights Commissioners in the Russian Federation6 jointly with the 1

See: Avakyan S.А. Reference point – the people // Sovereign democracy from the constitutional and legal perspective: collection of articles and materials. Moscow, 2007. P.34; Comment to the Constitution of the Russian Federation (clause by clause). 2nd enlarged and revised edition/ edited by L.А. Okunkov. Moscow, 1996. P. 18–19.

2

Official Gazette of the Russian Federation. 2013. No. 19. Art. 2304.

3

Official Gazette of the Russian Federation. 2014. No. 30 (p. I). Art. 4213.

4

Official Gazette of the Russian Federation. 2005. No. 15. Art. 1277.

5

Official Gazette of the Russian Federation. 2016. No. 26 (p. I). Art. 3852. This Federal Law will take effect on January 1, 2017 г.

6

Official Gazette of the Russian Federation. 2013. No. 19. Art. 2305.

30

§ 1. Corruption in the present day society and factors, which lead to it

acts of the President of the RF, federal executive bodies, government bodies of constituent entities of the Russian Federation determines the legal status, major tasks and competence of the Business Rights Commissioner under the President of the Russian Federation as well as business rights commissioners in constituent entities of the Russian Federation. A number of legal acts are aimed at making the activities of public agencies for the people. The concept of minor bribe was introduced in the Criminal Code of the RF (hereafter RF CC). Under Art. 291.2 of the RF CC1 acceptance or giving of bribe personally or through an intermediary in the amount below 10 thousand rubles is punished by penalty in the amount of up to 200 thousand rubles or in the amount of wages for the period of up to three months or by correctional tasks for the period of up to one year or by restraint for the period of up to two years or by confinement for the period of up to one year. The person giving such bribe may be released from criminal liability if such person actively assisted the disclosure and/or investigation of the crime or bribe extortion took place in regard of such person or after committing the crime, the person informed voluntarily the authority entitled to open a criminal case of the giving of the bribe. Generally, we can say that further development of democratic government institution and higher efficiency of the court system of the Russian Federation are necessary. Legal factors have significant influence on the corruption levels and on the efficiency of combating corruption but this influence is of double nature. On the one hand, adoption of a special federal law, legislative acts forming the legal basis for anti-corruption activities of state government and local government bodies gave strong positive momentum to combating corruption2 and clear determination by normative legal acts of the functions and powers of the state government and local government bodies helps to decrease the level of corruption in the country by restriction of discretion of officers of such bodies. The normative determination of procedures 1

Introduced by Federal Law dated July 3, 2016 No 324-FZ On Amendments to the Criminal Code of the Russian Federation and the Criminal Procedure Code of the Russian Federation // Official Gazette of the Russian Federation. 2016. No. 27 (p. II). Art. 4257.

2

The legal basis for combating corruption in the Russian Federation are discussed in Chapter 2 of this book.

31

Chapter 1.

Corruption as a threat to the society and state

sets the limits of legal activities of the government bodies thus being a major condition for the lawfulness of activities ensuring accounting and maintaining the balance of different interests in the process of taking respective decisions. Such was the opinion of the participants of a joint Russian-French study conducted by the Institute and L’Université Paris 1 Panthéon-Sorbonne1. On the other hand, situations are possible when legislative recognition of guaranties of the rights of certain categories of individuals results in the growth of latency of corruption offenses2 as establishing guaranties is normally accompanied with introduction of legal bans and restrictions for law enforcement bodies and their officers and of procedures hindering suppression of acts of corruption committed by persons abusing their guaranties. Another significant factor increasing the intensity of corrupt practices is the inadequacy of the existing legislation system. Research conducted by the Institute demonstrates that within the last two decades the number of legislative acts adopted by the government bodies of the Russian Federation has increased incrementally. The fundamental rule is forgotten that legal standards should ensure «relative stability»3 of social relations. Such situation results in lower quality of law making. The elaborate text of an act is a most important condition and a sign of its quality, facilitates correct understanding of the content of norms and legal actions provided under them. On the contrary, cloudy texts, non-legal language, disregard for the rights of compilation and approval of draft documents, inconsistencies in the use of legal terms decrease the efficiency of the legal system and make favorable conditions for corruption. The substantive aspect of the matter is also important where a law or any other legal act is meant to really establish stable legal norms

1

See: Marcou G. Administrative acts and procedures in Russia and other countries of Europe // Administrative procedures and control in the light of European experience / edited by. T.Ya. Khabrieva and G. Marcou. Moscow, 2011. P. 22. Les procédures administratives et le contrôle à la lumière de l’expérience européenne en France et en Russie, sous la direction de Talia Yaroulovna Khabrieva et Gérard Marcou, Р., 2012.

2

See in more detail par. 2 of this Chapter.

3

Bratus’ S.N. Role of Law in the Development of the Soviet Economy. Moscow, 1971. P. 15.

32

§ 1. Corruption in the present day society and factors, which lead to it

and help to solve different social problems1. Otherwise if the acts adopted are not sufficiently elaborate they may worsen the situation they were supposed to solve. For instance, many researchers believe that for many people petty corruption is a common norm of social relations particularly because of the provisions of Art. 575 of the Civil Code of the Russian Federation (hereafter RF CivC), which actually legalize the receipt by employees of educational and health care organization of gifts the value of which does not exceed 3 thousand rubles. Thus, the value of the gift becomes the qualifying element for criminal liability. Many experts believe this position to be wrong2 as the difference between a gift and a bribe is not in the different value of the transferred property but in the motives and purposes of such actions. So, in evaluation of corrupt practices the causal relationship between the receipt of financial benefit (including the receipt of gifts cheaper than 3 thousand rubles) and performing certain actions in favor of the giver of the bribe. «Regardless of its value, a bribe is neither a common gift, nor a gift of any other kind. Insignificant value of the bribe should not release from liability for bribery»3. Gaps, collisions and inconsistencies between normative legal acts including laws regulating similar relationships, absence of regulation of many issues or sometimes excessive regulation stimulate bureaucracy, arbitrary rule of officials and corruption-related crime and hamper the activities aimed at combating those phenomena. The lack of efficient arrangements for implementation of many anti-corruption normative acts and their declarative nature result in inaction of law. The legal factors may also have an adverse impact on the level of corruption in the country in the event of inconsistency of reforms of different spheres of the Russian society. Sometimes, the reforms are 1

See: Scientific concepts of development of the Russian legislation: monograph. 7th, enlarged and revised ed. / S.Ye. Naryshkin, T.Ya. Khabrieva, A.I. Abramova et al.; managing editor T.Ya. Khabrieva, Yu.A. Tikhomirov; Institute of Legislation and Comparative Law under the Government of the Russian Federation. Moscow, 2015. See also: Legal writing: textbook on preparation of draft laws and other normative legal acts by executive bodies / edited by. T.Ya. Khabrieva, N.A. Vlasenko. Moscow, 2009.

2

E.g., see: Dmitriev D.A., Kudashkin А.V. The conflict of interests starts with a ... gift!? // Citizen and Law. 2010. No. 7.

3

Koryakin V.М. Corruption in the Armed Forces: theory and practice of combating. Moscow, 2009. P. 170.

33

Chapter 1.

Corruption as a threat to the society and state

limited by development and adoption of federal laws and regulations of the Government of the RF while the no sufficient attention is given to the analysis and control of their practical implementation. As a result, establishment of necessary legal framework is not followed by efficient law enforcement practice. Organizational factors also affect significantly the corruption levels in the country. Ill-considered organization of control over the activities of public servants, excessive protection and sometimes unreasonable corporate solidarity of most government bodies, weak internal departmental control create favorable conditions for corruptionrelated crime. As a rule, such conditions are caused objectively by imperfection of the state administration mechanism and subjectively by the fact that many public servants are quite satisfied with this situation. Having no clear and open procedure for the performance of their functions makes it possible for many officials to interpret the procedure for their activities based on their interests. Abundance of authorities inspecting (licensing) entrepreneurial activities and, consequently, multiple instructions and regulations governing their activities also promote corruption. It is necessary to seamlessly combine reasonable control of business by the government and restriction of excessive interference of government bodies in the economy. Some steps were made in the Russian Federation in this area: an administrative reform is being conducted in which the industry principle of formation of the system of executive bodies is complemented with the functional principle thus distributing the functions of formulation of state policy and legal regulation, function of provision state services and management of state property and supervision and control functions between different categories of executive bodies. Public councils are established under most of them, whose activities are also aimed at corruption minimization in the respective bodies. The number of licensable activities decreased significantly from 104 in 2001 to 49 in 2016. Measures are taken aimed at improvement of other components of the licensing system of the Russian Federation1. In many spheres of business activity 1

34

For details, see: Licensing system in the Russian Federation: scientific and practical guidebook / L.Yu. Akimov L.V. Andrichenko, Ye.A. Atyemyeva et al.; managing editor A.F. Nozdrachev. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015.

§ 1. Corruption in the present day society and factors, which lead to it

self-regulatory mechanisms are used1, scientists and businessmen are invited to estimate the regulatory effects of draft normative legal acts. It is planned to introduce a procedure for examination of actual effect of normative legal acts, which will involve not only state and municipal officials but also scientists, representatives of business, etc. The above measures and other measures aimed at improvement of legal regulation have reduced the breeding grounds for corruption practices. The trend is also promoted by the broad use of information technologies in the performance by public authorities of state functions and provision of state services, which ensures «anonymity of work relationships on the basis of science and law»2. But in many cases government measures can be deemed excessive. For instance, development and approval of administrative regulations of performance of state functions and provision of state services were believed to be an important part of the administrative reform as they supposed that normative and regulatory consolidation of procedures, establishment of strict procedural framework, algorithms for making managerial decisions and their implementation would make the government administrative process more open and efficient. As a result, from the commencement of the administrative reform in Russia over 1800 administrative procedures were issued at the federal level alone (currently 1165 of them are in force). The executive bodies of the constituent entities of the Russian Federation and local government bodies adopted nearly 200 thousand administrative procedures. Obviously, it is impossible to establish control over this huge corpus of acts, so, while admitting the importance of the «regulatory» law from the prospective of combating corruption, it should be noted that excessive regulation of activities of government bodies has also significant adverse consequences. The problems 1

E.g., see: Federal Law dated December 01, 2007 No 315-FZ On Self-Regulated Organization // Official Gazette of the Russian Federation. 2007. No. 49. Art. 6076; Town-planning Code of Russia dated December 29, 2004 No 190-FZ // Official Gazette of the Russian Federation. 2005. No. 1 (p. I). Art. 16. Federal Law dated July 3, 2016 No 372-FZ On Amendments to the Townplanning Code of Russia and certain legal acts of the Russian Federation // Official Gazette of the Russian Federation. 2016. No. 27 (p. II). Art. 4305; Federal Law dated July 29, 1998 No 135-FZ On Assessment Activities in the Russian Federation // Official Gazette of the Russian Federation. 1998. No. 31. Art. 3813.

2

Weber М. Selected works. Moscow, 1990. P. 473–8.

35

Chapter 1.

Corruption as a threat to the society and state

degrading the anti-corruption effect of administrative regulation include: – uncertainty of information on the activities of the government body described in the respective regulation; – non-performance or formal performance of the requirements of the normative legal act; – legal deficiencies of the texts of the «regulatory» acts. Another problem is that in the Russian legal doctrine a regulation, particularly an administrative one is generally considered an act of legal regulation of the procedural aspects of the activities of a government body containing the description of actions (administrative procedures) of that body aimed basically at the regulation of its internal activities1. At the same time, little attention is paid to regulation of interrelations of different government bodies in the course of execution by them of their powers. For instance, in furtherance of the norms of Art. 7 of Federal Law dated December 26, 2008 No 294-FZ On the protection of legal entities’ and individual entrepreneurs’ rights in the course of state control (supervision) and municipal control,2 which establish the necessity of interaction between the state control (supervision) bodies, municipal control bodies in organization and performance of audits, only eight administrative regulations were adopted. We believe that this situation reflects a more serious problem constituting another group of organizational factors determining corruption. It consists in lack of coordination between the executive bodies, both horizontally and vertically. The factors of this group are weak interaction of the government bodies; contradictions in the competence of the bodies combating crime, nonconformity of the system of anti-crime measures to the purposes of fighting the crime; overload of the criminal justice system; low professionalism in the system of law enforcement agencies, low material support of those bodies. Such inconsistency and lack of coordination of the law enforcement agencies promotes propagation of corruption-related crime aimed at receiving profit by any means. 1

See: Khabrieva T.Ya. Administrative procedures and administrative barriers: in search of an optimal model of relations // Administrative procedures and control in the light of the European experience / edited by T.Ya. Khabrieva and G. Marcou. Moscow, 2011. P. 105–107.

2

Official Gazette of the Russian Federation. 2008. No. 52 (p. I). Art. 6249.

36

§ 1. Corruption in the present day society and factors, which lead to it

In the area of prevention of and combating corruption, the majority of the problems can be solved by economic, political, technical and administrative means and methods but the efficiency of those methods depends on the people, their qualification, selected forms and methods of administration, culture, moral and ethical principles. That is why the National Strategy of Combating Corruption1 (hereafter the National Strategy) names personnel issues among the priorities of combating corruption. That said, this Strategy and other normative legal acts list among the measures for improvement of personnel management establishment of a system of check of information provided to government bodies by persons taking official positions, state civil servants, municipal servants and other persons; systemic identification and rewarding best workers; prompt analysis and forecasting of future staffing needs, recruitment of new personnel so that that staff complied with those needs; introduction of a system of continuous training of the personnel so that state and municipal servants could maintain and develop their professional skills; attention of the leadership to career progress of state and municipal servants by improvement of the requalification systems and individual development plans; improvement of internal state and municipal servants efficiency and performance evaluation systems, etc. Great attention devoted to the personnel issue is due to the fact that any mistakes in selection and professional training of state servants and, as a result, their low professionalism and incompetence also promote corruption in the Russian Federation. Insufficient social protection of state servants also promotes corruption although we believe that this factor is not a crucial one. So demonstrates the evidence received by the Institute in the course of implementation of the MONKOR program. For instance, stable connections between bribery and indexes of per capita income discovered in the course of the study confirm that economic well-being growth to a substantial degree determines positive dynamics of corruption. That is in conformity with the economists’ idea that during the transitional

1

Approved by Decree of the President of the RF dated April 13, 2010 No 460 (Official Gazette of the Russian Federation. 2010. No. 16. Art. 1875).

37

Chapter 1.

Corruption as a threat to the society and state

stage of the national economy (the stage of accumulation and reallocation of values) corruption increases. Weak correlations were established between bribery and the number of poor people. Still weaker correlations were discovered between bribe taking (giving) and the unemployment level. Some thought is provoked by the reverse correlation of corruption and economic expectations of the people. There emerges a new sociological regularity: improvement of people’s perception of their living standards inevitably leads to decline of corruption and vice versa, worsening of living standards is followed by corruption growth. Taking bribes, abuse of functions or office and forgery are seen by criminals as an opportunity to improve their circumstances. But taking bribes is not a priority method of enrichment. It gives way to abuse of functions. Being in close systemic connection to the index of personal wealth, corruption still shows weak to medium dependency of expected changes in the personal financial situation and consumer confidence index (Table 1). It shows that despite its mercenary character, corruption is not seen as the main source of income. That means that raising officials’ wages is not an efficient means to suppress bribery. Table 1 Correlations between corruption and indicators of economic well-being of the people Indicators of economic wellbeing of the people

Personal well-being index Actual changes in personal well-being Expected changes in personal well-being Favorable conditions for large purchases Favorable conditions for savings Consumer confidence index

38

Art. 285

Articles of the RF CC providing for liability for corruption offenses Art. Art. Art. Art. Art. Art. Art. 285,1 285,2 286 290 291 292 293

–0,99 –0,95 –0,86 –0,98 –0,79 –0,01 –0,93 –0,59

Art. 291,1 0,65

–0,4

–0,54 –0,43

–0,3

–0,4

–0,51 –0,27 –0,11 –0,57

–0,1

–0,24 –0,18

–0,1

–0,14 –0,67 –0,14 –0,005 –0,38

–0,47 –0,64 –0,71 –0,55 –0,64 –0,67 –0,27 –0,19

–0,2

–0,48 –0,58 –0,59 –0,63 –0,48 –0,67 –0,35 –0,11 –0,08 –0,43 –0,55 –0,32 –0,25 –0,38 –0,76 –0,19 –0,05 –0,34

§ 1. Corruption in the present day society and factors, which lead to it

Systemic dependencies were found in the course of analysis of crime dynamics of persons working in government and local government bodies who got an additional (including anticorruption) education; people taking state positions and positions of federal public servants, public servants of bodies of constituent entities of the Russian Federation and municipal servants. Contrary to expectations, higher educational level is directly related to bribery although this dependency is not functional. Still, it is alarming that receipt by officials of anti-corruption education is actually a factor that makes corruption-related offenses easier. Forgery seems to be an exception: here additional professional training leads to minor decrease of the number of registered offenses. However, that may signify higher level of their artificial latency. The correlation between the number of officials and dynamics of office abuse provides grounds for positive middle-term and long-term forecasts. Being within the mean reverse dependency, it indicates high preventive potential of internal organizational control, which strengthens as the number of administrative staff grows. Simultaneously the direct dependency between the officials number growth and dynamics of such offenses as abuse of functions and bribery is consistently high. But this dependency is rather of statistic than of systemic character. Prevention subjects should pay special attention to the fact that the number of persons working in government and local government bodies is in nearly absolute reverse dependency on intermediation in bribery. This may signify that the need for intermediation arises only when an official is in the public eye. In bodies with complex structure where there is no shortage of personnel, officials and bribe-givers do not need intermediaries and prefer to contact directly. Federal state civil servants make an exception. Here the correlation between the number of government staff and intermediation in bribery is near the upper bound of determination. Municipal servants use mediation least frequently which can be explained by the nature and amounts of bribes at the local level (Table 2).

39

Chapter 1.

Corruption as a threat to the society and state

Table 2 Interrelation between corruption, and number and structure of government staff Number and structure of government staff

Number of persons working in government and local government bodies Persons with supplementary vocational education All persons taking official positions and positions of federal public servants All persons taking positions in the bodies of constituent entities of the Russian Federation Municipal servants

Articles of the RF CC providing for liability for corruption offenses Art. Art. Art. Art. Art. Art. Art. 285,1 285,2 286 290 291 292 293

Art. 291,1

–0,46

0,99

0,95

0,94

0,6

0,93

0,67

–0,99

0,55

0,46

0,33

0,59 0,0007 0,51

0,3

–0,28

0,74

0,32

0,3

0,05

0,31

0,05

0,73

0,08

–0,03 –0,15

0,82

0,72

0,62

0,33

0,79

0,74

0,74

0,01

0,93

0,65

0,52

0,35

0,73

0,75

0,89

–0,05 –0,84

Art. 285

0,81

–0,03

Generally speaking, this demonstrates multiplicity of factors determining corrupt practices and necessity of differential application of different measures, e.g. economic, educational, punitive, etc. § 2. CORRUPTION AND LEGAL ORDER: PRESENT DAY CONTEXT

Public order is among the necessary conditions for the contemporary civilized society. It represents the real system of organized social relationships formed on the grounds of law. Corruption affects adversely the public order; it influences it as a destabilizing factor. Where it takes a systemic nature, it changes the public order, which threatens loss by the law of its regulatory role and loss by the order of its function of social relationships organization. Propagation of corruption may become a precondition for a crisis of the legal system and destruction of the state. So, it is important to bring about several issues which require doctrinal elaboration: 1) what distortions order can suffer under the 40

§ 2. Corruption and legal order: present day context

influence of corruption; 2) which of them can lead to the crisis of the legal system; 3) what the crisis of the legal system is, how it can be diagnosed and forecast; 4) what the critical limit is after which the destruction of the legal system begins. Obviously, when formulated so, these scientific issues go beyond the purely anti-corruption topic. Paradoxical as it may be, the order not only opposes corruption but also is an obstruction in combating it. The guaranties of rights of individuals, organizations, business entities, officials established within its framework in many cases hinder the work of law enforcement agencies, which must increase the efficiency of their activities on protecting order and suppressing corruption practices. The more the government is trying to strengthen the order providing the subjects of social relationships guaranties of their rights, the more its agencies, especially the law enforcement agencies face legal bans, restrictions and procedures which interfere with suppression of corruption practices. This regularity makes important the scientific task of finding a balance of interests of an individual, the society and the state, optimal combination and interrelation of legal mechanisms of strengthening the public order and combating corruption. National public orders of the majority of the countries of the world are characterized with high dynamics of their individual bases, e.g. normative, institutional, subjective, ideological basis, etc., which change actively under the influence of different factors. Fighting corruption is one of the priorities of the modern state policy aimed at reinforcement of the public order. Combating corruption becomes a fundamental element of state activity. To a great extent it determines changes in the content of legislation as well as of the institutional basis of the order (system and structure of executive bodies, distribution of their competence); involvement of civic institutions in the sphere of protection and reinforcement of the public order (expansion of the subject composition); transformation of the content of the legal ideology (not just legal), system of education, including legal. The government activities on establishment and protection of national public orders is not limited to combating corruption. Still, we should admit that it is this priority that influences so much the strategy of state and legal development of many countries. It concerns integration processes between countries and state associations and 41

Chapter 1.

Corruption as a threat to the society and state

becomes a condition for participation in regional and international organizations (e.g. European Union, etc.). In this respect, it is important to emphasize the importance of unification of legal approaches and means of combating corruption in the territory of Eurasia. Further integrations of Eurasian countries determines the need for gradual and careful unification of legal decisions not just in the economic sphere (within the Single Economic Space or the Customs Union, etc.1) but also in the legal sphere. It is important for the stability and efficiency of economic relations. Even within existing associations, the goals of economic integration determine the need for common understanding of the standards of combating corruption as corruption impacts adversely the economic situation, the transparency of business conditions, etc. The unification of the mechanisms of combating corruption in the Eurasian region could help solution of more important problems and promote the integration to a new level. The formation of the Eurasian Union requires legislation approximation in the public law sphere. Some acts supporting such integration have entered into force already, e.g. the Customs Code of the Customs Union2, which replaced the Customs Code of the RF in the Russian legal system3. This positive experience should be developed. Besides, it will be necessary to develop universal legal measures of combating corruption4. In different spheres of social life where unification of legal measures or legal regulation in general takes place, there is always multiplicity of legal standards arising. It is especially obvious in the area of combating corruption. Anti-corruption standards have been adopted by many international organizations (OECD, GRECO, Council of Europe, etc.). 1

So stipulates the Eurasian Economic Union Treaty (signed in Astana on May 29, 2014). URL: http:// www.pravo.gov.ru

2

See: Annex to the Eurasian Economic Union Treaty adopted by Resolution of the Interstate Council of the Eurasian Economic Community at the highest level dated November 27, 2009 No 17 // Official Gazette of the Russian Federation. 2010. No. 50. Art. 6615.

3

Customs Code of the Russian Federation dated May 28, 2003 No 61-FZ // Official Gazette of the Russian Federation.

4

For details, see: Legal means of combating corruption: scientific and practical guide / N.A. Vlasenko, S. A. Gracheva, Ye.Ye. Rafalyuk et al; managing editor N.A. Vlasenko М.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012.

42

§ 2. Corruption and legal order: present day context

Up to this moment, there is no hierarchical relations between them. International advisory acts become more popular in the relations between states and they touch upon various areas including the ones, which used to be in exclusive internal competence of the states. We may say that there is no single understanding (not even common approaches to understanding) of the said standards, which hampers their uniform application and leads to collisions. Certain subjects of international legal relations use this situation to appropriate the right to construe them. One of the ways to improve the situation may be to make clear the rules of construction of the acts mandatory for the countries participating in the integration process. The function of any legal doctrine is to renovate the theoretical concepts on the ways and methods of interpretation of law. Respective work is going on already. In particular, there are assessments of the modern trends in the theory of interpretation of law1, there are some results of deep analysis of the interpreting activities of new international subjects of interpretation of norms of national law2. National public orders respond to new challenges of corruption among which the following should be noted: 1) qualitative changes in corruption3 – its transfer from the market model to the so-called network model; 2) development of transnational forms of corruption (which is determined by its universal nature)4;

1

See: Lazarev V.V. Interpretation of law: classics, modern, postmodern // Journal of Russian Law. 2016. No. 8.

2

See: Khabrieva Т.Ya. Venice Commission as a subject of interpretation of national law // Journal of Russian Law. 2016. No. 8.

3

For details, see: Doronina N.G. Role of Combating Corruption for Attraction of Foreign Investments in the National Economy // Role of Business Structures in Combating Corruption: scientific and practical guidebook / edited by. N.G. Semilyutina, Ye.I. Spector. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012. P. 35; Program of international scientific monitoring of corruption practices (MONKOR) / V.I. Lafitsky, V.P. Yemelyantsev, O.I. Semykina et al.; under the guidance of T.Ya. Khabrieva Moscow, 2015. P. 9–10; Tsirin A.M. Topical issues of corruption risks minimization // Gosudarstvennaya Sluzhba [Government Service]. 2014. Issue No. 1 (87).

4

According to OECD, large transnational companies often initiate registered cases of bribery around the world. They attack developing markets trying to take root in them, influence the development of legal regulation, receive support from influential officials and drive out competitors representing different sectors of national economies. The political establishment of developed economies fully supports it trying to put trusted persons to the key positions in the businesses they control.

43

Chapter 1.

Corruption as a threat to the society and state

3) criminological transformation of corruption, which shows in that it becomes closed off, «professional», turning actually into a kind of abuse of office; 4) functional isolation of corruption, which demonstrates inefficiency of traditional measures of combating crime. More frequent become the situations when bribes are given to third parties, not just relations or friends (colleagues, fellow students), but also intermediaries, including foreign ones, who are formally not related to the takers of bribes. In such situations, it is more difficult to identify the corruption offenses and to hold the persons guilty of them liable for them; 5) establishment of corruption as an institutional social and legal formation having typical features and stable tactical models. Those specific features of corruption and trends of its transformation should be taken into account in the selection of measures and methods of combating that phenomenon. Anti-corruption legislation is being developed within the framework of national public orders. Its implementation is ensured, without limitation, by issuance of bylaws. As a whole, the anticorruption norms in such laws and bylaws form a specialized normative corpus of acts, which becomes relatively separate within the normative basis of the public order. In Russia, the anti-corruption legislation is mostly formed (Tables 3, 4). We can say that it is: 1) among the most up-to-date in the world; 2) very sensitive to all new challenges and international requirements; 3) actively takes into account recommendations of the scientific and expert community and improves under the intensive influence of the legal doctrine; 4) shows high development dynamics (and that’s a case when such dynamics should be welcomed), expansion of the sphere of legal regulation; 5) has a mechanism of implementation of the laws constituting it by means of a vast corpus of bylaws and non-legal regulations (codes of conduct, etc.).

44

§ 2. Corruption and legal order: present day context

Dynamics of establishment of the federal anti-corruption legislation in the Russian Federation Table 3 Acts Year

Federal Laws

of the President of the RF

of federal executive bodies

of the Government of the RF

of other bodies and organizations

2008

25

0

0

1

1

2009

1

4

0

42

3

2010

0

3

1

104

12 10

2011

42

1

0

91

2012

34

0

0

44

6

2013

34

4

3

67

34

2014

12

2

0

91

16

2015

13

5

1

365

32

2016

3

1

0

27

1

Table 4 Acts Federal Laws

of the President of the RF

of the Government of the RF

Prevention and settlement of conflict of interest

79

0

0

167

26

Ban on foreign accounts

22

0

0

61

1

Control over matching expenses and revenues

22

0

0

2

1

Provision of information on revenues

23

6

3

172

29

Anti-corruption expert examination

10

0

1

84

9

Functioning of trust line

0

0

0

22

10

Code of conduct

0

0

0

73

10

Subject of legal regulation

of federal executive bodies

of other bodies and organizations

Still, there are some deficiencies, which should be identified and understood to plan further work. The anti-corruption legislation of the Russian Federation at this stage demonstrates: 45

Chapter 1.

Corruption as a threat to the society and state

1) multiplicity of the normative legal acts of different legal force and different sector profile1; 2) multidirectionality of those acts (public and private spheres); 3) lack of balance of the number of acts aimed at combating corruption in the public and private spheres (most acts are aimed at combating corruption in the public sphere)2; 4) lack of uniform principles of legislative regulation of combating corruption in the public and private spheres3; 5) low systematization level. Many countries expand the degree of interference in the private sphere in their desire to combat corruption4. For instance, in the USA and the UK the legislation requires that commercial companies should arrange for good practices that do not concede corruption practices. We are talking about the Sarbanes-Oxley Act of 2002 (USA) and Bribery Act of 2010 (UK). The British act includes the provision on liability of commercial organizations for improper arrangement of their activities that led to bribery performed on behalf of the company by any related persons (managers, employees, agents, intermediaries, advisors, etc.). Analysis of the Russian legislation demonstrated that in Russia the government regulation of combating corruption in the private sphere is not sufficiently developed. Its reinforcement should involve determination of the limits of government interference in the private sphere and observance of the balance of public and private interests. Development of anti-corruption legislation both in Russia and in other countries determines the need for doctrinal understanding of its character and prospects. In this regard, it is necessary to determine the role of this normative corpus within the legislation. Then we can 1

79 federal laws, 20 acts of the President of the RF, 5 acts of the Government of the RF, 830 acts of federal executive bodies, 112 acts of other bodies and organizations.

2

79% of the total number are acts aimed at suppression of corruption in the public sphere, while only 18% concern the sphere of business.

3

International anticorruption conventions require uniform principles of combating corruption in the public and private spheres which include openness and transparency of activities, non-admission of conflict of interests, control and responsibility, international cooperation (see: Khabrieva Т.Ya. Scientific and legal problems of combating corruption // Journal of Russian Law. 2012. № 7. С. 7–14).

4

See: Khabrieva Т.Ya. Corruption and law: doctrinal approaches to the articulation of the issue // Journal of Russian Law. 2012. No 6. P. 5–17; Khabrieva T.Ya. Scientific and legal problems of combating corruption // Journal of Russian Law. 2012. No 7. P. 7–14.

46

§ 2. Corruption and legal order: present day context

answer the question how it should be improved in future. Should we establish a separate sector of the national legislation or should the anticorruption standards be included in other areas of law? The search for the trajectory of the anti-corruption legislation is a burning issue for many countries including for the Eurasian region. Its determination is necessary for the purposes of interstate integration. To achieve them, the countries participating in the Eurasian integration should develop a uniform scientifically based concept of development of national anti-corruption legislation. For Russia, it is still important to ensure the efficiency of the legislation of the constituent entities of the Russian Federation where a legal basis for combating corruption is formed already. The central place in it belongs to the laws adopted in all constituent entities. Along with the laws, there are a lot of regional acts containing standards of mostly administrative law and regulating the relationships in the sphere of joint jurisdiction of the Russian Federation and its constituent entities (e.g., state civil service, municipal service). They determine the status of individual government bodies of the constituent entities of the Russian Federation and provide the lawmaking activities of those bodies. In the constituent entities of the Russian Federation, there is a constant monitoring of the legislation and practice of combating corruption (the anti-corruption monitoring). This ensures the correlation of plans and concrete events on combating corruption. Still, the problem of propensity of the regional normative legal acts for corruption persists. This is confirmed by the results of the monitoring conducted by the Ministry of Justice of the RF. For instance, during the period from January 1 to October 1, 2015, territorial bodies of the Ministry carried out an anti-corruption expert examination of 109,806 normative legal acts of the constituent entities of the Russian Federation. In 1132 of them, 1748 corruptogenic factors were identified. The opinions of the territorial bodies of the Ministry of Justice of the Russian Federation following the results of the anticorruption expert examination were sent to the executive bodies, which accepted them and to the prosecution agencies. Following the results of examination of those opinions, the government bodies of the constituent entities of the Russian Federation removed 931 factor in 594 normative legal acts. 47

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Corruption as a threat to the society and state

Within the last two years, significant positive modifications of the institutional basis for combating corruption took place in the constituent entities of the Russian Federation, in particular, a unification was conducted following the issue of the Decree of the President of the RF dated July 15, 2015 No. 364 On Measures to Improve Organization of Anti-Corruption Activities1. Increase of efficiency of law enforcement is significant for reinforcement of the public order and successful combating corruption. At this stage, the following are promising areas of improvement of law enforcement activities: – development of social control over propagation of corruption, consistent embedding of civic institutions and business community associations in the mechanism of combating corruption; – establishment and implementation in the law enforcement practice of corporate mechanisms of combating corruption; – improvement of quality of monitoring of combating corruption; formation of anti-corruption legal consciousness. Let us consider each of the areas in more detail. Development of social control over propagation of corruption, consistent embedding of civic institutions and business community associations in the mechanism of combating corruption. Active stand of the society is an efficient measure restraining corruption. Social protests provide certain positive results. But in many cases they turn into personal PR-campaigns. We believe that additional solutions are necessary in regard of organization of active participants of such movements. A good example here is the activity of the All-Russia People’s Front. For the purposes of further development of such practice, rules of additional rights of civic organizations (labor unions, artistic associations, etc.) should be included in Federal Law dated December 25, 2008 No 273-FZ On Combating Corruption (hereafter the Law on Combating Corruption). Research shows that they are ready to receive such competence. Governments should actively involve the business community to anti-corruption policy. Employers’ associations implement already anti-corruption events. E.g., in 2012 the Anticorruption Charter of 1

48

Official Gazette of the Russian Federation. 2015. No. 29 (p. II). Art. 4477.

§ 2. Corruption and legal order: present day context

Russian Business was signed by the CCI of Russia, RSPP, Delovaya Rossiya [Business Russia], Opora Rossii [Support of Russia]1. For consistent legalization of such activities it is advisable to directly specify in the Law on Combating Corruption the possibility of performance by business associations of monitoring of observance by their members of anti-corruption standards. Establishment and implementation in the law enforcement practice of corporate mechanisms of combating corruption. Organizers of criminal business still rely on bribery of the bureaucratic elite at all levels of the government power, officials of local governments, regulatory and supervisory authorities and law enforcement agencies. Highly intellectual groupings develop new corruption technologies used by business and replicated. Artificial structuring of business is used for corruption and other illegal purposes, which involves allocation of business activities to several, up to dozens of juridical persons. For example, one juridical person may own the fixed assets, another one performs production, still another performs the sales and procurement operations while the fourth one always balances on the edge of bankruptcy. There are no measures to oppose this practice in Russia yet. In this situation, it is crucial to establish efficient corporate compliance procedures and reliable organizational and contractual relations which rest on observance of international anti-corruption standards. Russia and other countries of the Eurasian region actively make attempts to implement European and American practices in their own practice2. While such borrowing is generally positive, the countries participating in the Eurasian integration should not give up attempts to find and establish their own legal arrangements. We believe that it is necessary to establish legal standards, which would urge business structures to disclose to government bodies information on involvement of business entities to corruption and fraud. The legislation should also include the rule of obligatory inclusion of an anti-corruption clause in agreements, which would help to establish legal obligations of the parties in regard of the anti1

URL: http://against-corruption.ru/ru

2

See: Gaydayenko Sher N.I. Establishment of a system of alternative dispute resolution mechanisms: conflict-free society as a basis for combating corruption: scientific and practical guidebook / managing editor N.G. Semilyutina. Moscow, 2015.

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corruption behavior in performance of each agreement of which violation will entail property liability of the guilty party. This will establish a legal basis for counterparties monitoring in the course of performance of the agreements as regards observance of the anticorruption obligations as the counterparties will be clearly informed of the anticorruption policy of any company. The Law on Combating Corruption, the civil legislation hardly use the main corporate resource, i.e. the internal control bodies, components of the internal audit system. The RF CC does not establish general regulation of the respective relationships. Even Federal Law dated December 26, 1995 No 208-FZ On Joint-Stock Companies,1 which is the most advanced in this sphere does nor provide for systemic regulation and does not include any rules aimed at combating corruption. Specialists have been speaking about the necessity to use this resource for a long time already2. Evidently, it is time for practical implementation of such measures. However, those issues were not discussed when reforming the civil legislation. We believe that now that the work is going on bringing special laws to conformity with the reformed RF CC, adjustment of the legal regulations of those social relationships could be performed. Besides, the anti-corruption legislation and the legislation on juridical persons require integration as regards the definition of conflict of interests, interest, personal interest and other similar concepts to determine adverse consequences (recovery of losses, declaration of transaction invalid, administrative or other liability) in the event of conflict of interests or interest. Improvement of quality of monitoring of combating corruption. During the last two decades, the problem of combating corruption has turned from a common criminal problem into an image-building indicator of efficiency of public administration. Every country and the international community in general need a uniform indicator (ratio) to measure corruption, which would take into account not just only criminal statistics and corruption perception index, but could 1

Official Gazette of the Russian Federation. 1996. No. 1. Art. 1.

2

See: Corruption: nature, manifestations, combating; monograph / managing editor T.Ya. Khabrieva. Moscow, 2012.

50

§ 2. Corruption and legal order: present day context

also track finest fluctuations in the dynamics of official crime and determine the sore spots of national anti-corruption policy. Despite the diversity of corruption estimation methods, most of them solve just a part of the tasks. The absence of uniform estimation criteria and their focus on individual aspects of corruption practices result in that anti-corruption ratings of different countries sometimes do not correspond to each other and sometimes event contradict each other. For the purpose of settlement of those contradictions, the Institute initiated the MONKOR program,1 which includes a method of calculation of a public order index based on the indicators of bribery and corrupt payment. In the course of appraisal of this method, preliminary results of the public order index calculation not just at the national level, i.e. in the Russian Federation, but also for the member states of the Eurasian Economic Union (EAEU). The criminological indicators of registration and detectability of corrupt payment, giving and taking bribes were used as a basic for the calculation. For instance, based on the criminological indicator of detectability of such crimes in 2015, the public order index plate for the EAEU countries included countries with a high (positive) index of bribery and corrupt payment detection (Russia, Armenia, Kyrgyzstan) and countries with a low (negative) index (Belarus, Kazakhstan). A distinguishing feature of the method developed by the Institute is broad use of mathematic methods of estimation of corruption and its systemic relationships with the social, political and economic characteristics of different countries (corruptometric estimation). Identification of average correlating indicators of some regions makes it possible to emphasize their geopolitical specificity and rank the criminological data in accordance with those systemic indicators. Besides, identification of covert stable dependencies between corruption level and certain social and political characteristics helps to diagnose on a real-time basis any deviations in the corruption dynamics that go beyond the margin of error and adjust the anticorruption policy on the basis of those indicators. 1

Program of international scientific monitoring of corruption practices (MONKOR) / Lafitsky V.I., Yemelyantsev V.P., Semykina O.I. et al.; under the guidance of. T.Ya. Khabrieva. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015.

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The analysis of corruption indicators in 10 regions of the Russian Federation on the basis of the MONKOR method and the corruptometry performed in the Institute helped to establish a direct causal relation between the corruption indicator, number and stability of the government staff, availability of natural resources, development of certain sectors of economy (construction, transport, excavation and processing of natural resources, travel business, etc.). The findings confirm the efficiency of the method and determine the need for its further development. Formation of anti-corruption legal consciousness. While performing consistently measures on combating corruption, the potential of law should not be overestimated. Legal regulation and law enforcement activities of the government bodies do not guaranty efficient resolution of the task of combating corruption. This is an issue of ideology or even of world outlook. Systematic work is necessary to form anticorruption legal consciousness and legal culture of an individual and the society. Legal education and anticorruption awareness campaigns play an important role in the achievement of such goals. No matter how trivial those things seem, they should not be disregarded. More than that, it is necessary to implement actively anti-corruption standard in education. The Ministry of Education and Science of the RF could lead this work. The work on increasing anti-corruption awareness should be performed with regard to positive foreign experience. Active interaction of the government and the civic society, expansion of the information field with the help of modern information technologies, including the Internet, multimedia and electronic connection, feedback channels between government bodies, local government bodies, including by establishment of special independent web-portals is an important precondition to reach good result in formation of antagonism to corruption in the society. Widespread involvement of young people in combating corruption could be achieved by massive use of modern information technologies including by means of: 1) anti-corruption campaigns in social networks (e.g. best antcorruption poster, banner, demotivator competitions); 2) establishment of anti-corruption groups in social media; 52

§ 2. Corruption and legal order: present day context

3) development, quality execution and popularization of internet memes aimed at creation of non-tolerance to corruption; 4) more active use by the government of the potential of the blogosphere and various web forums (including with invitation of IT specialists who would professionally promote the ideas of nontolerance to corruption at different websites and speak about real facts of combating corruption); 5) use of the opportunities provided by the YouTube service and similar services which make it possible to create such resources in the Internet network and place anti-corruption content there. Anti-corruption education should be provided not just among the young people and in the educational environment but also in the state and municipal service. Also the ethical regulators of behavior should be reinforced. Many foreign countries are following that path where state and municipal servants must obey strictly controlled ethical and disciplinary norms and codes of conduct. It is advisable to have specific educational anti-corruption programs for different categories of state and municipal servants. An important aspect of countering the adverse impact of corruptogenic factors on the Russian society is foregrounding of the safety thinking issue when an individual becomes an object and a subject of social protection. For instance, proliferation and implantation in the public consciousness of myths justifying, fatalizing or banalizing corruption is a common case of harmful information proliferation. Consequently, the struggle with this should be performed as part of solution to a larger problem, i.e. enforcement of an individual’s right for protection from undesired information among other intangible values protected by law. Development of the potential of safety thinking as a direction in science and understanding of its importance from the perspective of establishing an efficient mechanism of combating corruption should become a component of such research This is not a complete list of possible events, which are advisable for the purposes of formation of anticorruption legal consciousness of the people. Obviously, this issue is just as important as establishing regulatory, institutional and other bases of the modern public order. Integration of legal ideology and legal psychology of the people of different countries is a precondition for their successful development. 53

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§ 3. LEGAL QUALIFICATION OF CORRUPTION

Both legal science and law enforcement practice use different approaches to understanding corruption. But the complexity and grand scale of this social vice predetermine the necessity of taking measures originating from the government and guarantied by its power. Analysis of foreign experience demonstrates that those countries succeeded in combating corruption, which employed a comprehensive approach to combating corruption, which involves application of political, legal, organizational, economic, promotional and other measures. Combating corruption is traditionally performed in two basic areas: 1) fighting corruption practices and corruptionists by direct impact on participants of corruption relations by any lawful means including by legal coercion for the purposes of suppression of their illegal activities. 2) prevention of corruption, establishment and execution of preventive anti-corruption policy as a separate function of the government. Research shows that a purely repressive approach is inefficient due to several reasons. First, the existing Russian legislation, including in the sphere of combating corruption, is not perfect so the question arises of greater involvement of the legal science in its improvement. Second, the «war strategy» the repressive approach turns into in most cases is often strongly opposed and not just by corruptionists. Third, as mentioned earlier, corruption evolves quickly thus giving participants of corrupt relations a chance to avoid liability. Forth, this approach fights the consequences and not the causes while in a long-term perspective combating corruption can be efficient only if aimed not only at the decrease of corruption offenses but also at the identification and removal of causes for their emergence and propagation. In this respect the preventive strategy of combating corruption (elimination of administrative barriers, optimization of the state procurement system, anti-corruption standardization in the sphere of public service, etc.) can be deemed a priority trend of state anti54

§ 3. Legal qualification of corruption

corruption policy development. Even China where corruption is nearly an integral part of the Chinese government machine and where traditionally they fought with the symptoms of the problem, i.e. the corruptionists and not with corruption, makes rather successful efforts to establish a new system of combating corruption based on a combination of preventive and radical measures1. This does not mean that measures of legal liability should be abandoned but the global experience demonstrates that the socioeconomic effect from removal of factors facilitating corruption is much greater. But before speaking about measures of combating corruption we should make clear what we mean by that term. There are two major approaches to definition of corruption in the scientific literature. Broadly speaking, this notion covers the negative social phenomenon consisting in deliberate use by state and municipal servants, other persons authorized to perform public functions of their official position, status and authority of the occupied position for lucrative purposes for personal profit or group interests2; in a strict (purely legal) sense corruption is the total of all elements of offense which are distinguished by the important qualifying element of use by and official of its public status for lucrative purposes for personal profit or group interests, abuse of office3. If we speak about the legal qualification of corruption, there are lots of definitions of this phenomenon. For instance, in international law the broad understanding of corruption is used as of lucrative abuse of office which is not restricted to bribery of public servants. For instance, in the Civil Law Convention on Corruption (ETS No 174)4 the following definition of corruption is provided: «requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, 1

For details, see: Makarov A.V. Corruption: an experience of China’s successful struggle and the reality of contemporary Russia // Gosudarstvennaya vlast i mestnoye samoupravleniye [State power and local government]. 2012. No. 3.

2

For details, see: Ashavsky B. International code of conduct of public officials // Chistye ruki [Clean hands]. 1999. No. 2. P. 97–98; Burlakov V. N. Criminology: textbook for law schools / edited by. V.N. Burlakov, S.P. Salnikov. St. Petersburg, 1998. P. 317.

3

For details, see: Aminov D.I., Gladkikh V.I., Solovyev K.S. Corruption as a social and legal phenomenon and methods to combat it: textbook. Moscow, 2002; Criminology / edited by. V.N. Kudryavtseva and V.Ye. Eminova. Moscow, 2002. P. 369.

4

ConsultantPlus Legal Reference System.

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which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof». The UN Convention against Corruption1 adopted in New York on October 31, 2003 by Resolution 58/4 of the 51 plenary meeting of the 58 session of the General Assembly of the UNO and the Council of Europe Criminal Law Convention on Corruption2 concluded in Strasbourg on January 27, 1999 do not include any definition of corruption but they establish the list of actions which should be criminalized for the purposes of combating corruption. Such actions include not only offering and promising bribes and bribery but also «embezzlement, misappropriation or other diversion by a public official for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position3, abuse of office4, accounting offense5, etc. The approach used in those international legal acts may be seen as universal as it concerns not only the public sphere but also the private sphere. For instance, Art. 12 of the UN Convention against Corruption prescribes that under the norms and principles of national legislation the participant states should «take measures to prevent corruption involving the private sector, enhance accounting and auditing standards in the private sector and, where appropriate, provide effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures». In Arts. 7 and 8, the Council of Europe Criminal Law Convention on Corruption establishes the obligation of contracting parties to take measures to recognize active and passive bribery in the private sector a criminal offense. By active bribery, the Convention means «promising, offering or giving, directly or indirectly, of any undue advantage to any persons who direct or work for, in any capacity, private sector entities, for themselves or for anyone else, for them to act, or refrain from acting, in breach of their duties», and by 1

Official Gazette of the Russian Federation. 2006. No. 26. Art. 2780.

2

Official Gazette of the Russian Federation. 2009. No. 20. Art. 2394. The Russian Federation ratified the Convention by Federal Law dated July 25, 2006 No 125-FZ.

3

Article 17 of the UN Convention against Corruption.

4

Article 19 of the UN Convention against Corruption.

5

Article 14 of the Criminal Law Convention on Corruption.

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§ 3. Legal qualification of corruption

passive bribery, it means «request or receipt, directly or indirectly, by any persons who direct or work for, in any capacity, private sector entities, of any undue advantage or the promise thereof for themselves or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in breach of their duties». The said Convention treats the subject of «private» corruption extremely broadly as «any persons who direct or work for, in any capacity, private sector entities». At the national level, approaches to defining corruption differ just as the extent of influence of scientific doctrines on their formation does. In most foreign countries the narrow approach to legal definition of corruption prevails which is described through sets of elements of particular offenses1. Generally speaking, both the international legal acts and legal instruments of most countries of the world there is a tendency to expand the concept of corruption. It goes beyond bribery and includes such corruption practices as cronyism, patronage, various forms of unlawful misappropriation of public funds. The domestic doctrinal bases of legal qualification of corruption are characterized by two basic approaches. The first one treats corruption mostly as venality of officials. It has deep historical roots as in the domestic pre-revolutionary (A.V. Lokhvitsky, N.S. Tagantsev, I.Ya. Foinitsky, V.N. Shiryaev, etc.) and Soviet (A.I. Dolgova, N.D. Durmanov, N.F. Kuznetsova, etc.) legal science corruption was mostly seen as belonging to the criminal category of bribery. The domestic legislators were of the same opinion. For instance, the Code of criminal and correctional punishments criminalized different methods of «bribery (as an offense against state or public service) and graft (as offense against administration order)» and recognized as a crime «taking a gift or promising it for the purposes of easing of the force of law in the future regardless of the volume or nature of the gift, of taking it directly or through 1

See: Corruption: nature, manifestations, combating / managing editor T.Ya. Khabrieva. Moscow, 2012. P. 20–21, 576–577; Legal innovations in combating corruption: proceedings of the First Eurasian Anti-Corruption Forum and VII International Workshop of Young Law Scientists (Moscow, May 20–21, 576) / managing editor L.V. Andritchenko, A.M. Tsirin. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012.

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intermediaries (assisting persons or straw men), directly or indirectly (under cover of a lawful deal)»1. Also Art. 376 established that «the bribetaker was found guilty and incurred the punishment determined for such offenses in cases... when money or valuables were not given yet but only promised upon his desire or consent». In the Soviet law theory, corruption was not given much attention as it was believed to be unknown to socialism and mostly characteristic of the bourgeois society. Still, the Criminal Code of the RSFSR provided for liability for both bribe giving and taking as well as for mediation in bribery2. Some authors stick to this approach even now defining corruption as a social phenomenon characterized by bribery – venality of state or other officials and based on that by lucrative use by them of official powers and authority and possibilities related thereto for personal or group interests»3 or as a socially dangerous phenomenon consisting in bribery of servants of governmental and non-governmental structures4. But such definition does not fit current reality despite being historically motivated and supported by earlier legal provisions and theoretical insights5. Corruption as it was shown earlier easily fits itself into changing circumstances producing new forms of corruption practices, which is supported by sociological studies. 1

Code of criminal and correctional punishments 1845 // Laws of the Russian Empire: in 5 books. Book 5. Vol. XIII–XVI. St. Petersburg, 1912. Vol. XV. P. 47.

2

See: Law of the RSFSR dated October 27, 1960 On Approval of the Criminal Code of the RSFSR// Bulletin of the Supreme Soviet of the RSFSR. 1960. No 40. Art. 591.

3

Criminology: a textbook for law schools / edited by A.I. Dolgova. Moscow, 2001. P. 501–502; Dolgova A.I. Criminological issues of corruption in Russia//Corruption: political, economic, organizational and legal issues. Moscow, 2001. P. 151.

4

See: Criminology / edited by. N.F. Kusnetsova, G.M. Minkovsky. Moscow, 1994. P. 279. See also: Burmistrov I.A. Corruption: its essence and preventive measures // Corruption: political, economic, organizational and legal issues. Moscow, 2001. P. 229; Vasilchenko А.А. Criminal liability and corruption // Corruption: political, economic, organizational and legal issues. Moscow, 2001. P. 357; Korolyova V. Corruption in the sphere of law enforcement // Corruption and struggle with it. Moscow, 2001. P. 87; Lopashenko N.A. Corruption: essence, problems of legal regulation // Ugolovnoye pravo [Criminal Law]. 2001. No. 2. P. 99; Corruption in Russia: state and issues: proceedings of scientific and practical conference (March 26–27, 1996) / editorial board N.P. Vodko, L.D. Gaukhman, Ye.Yu. Gracheva V.P. Kuvaldin, S.V. Maksimov, A.Ya. Minin, A.V. Nesterov, V.I. Popov. Moscow, 1996. P. 3.

5

See: Semykina O.I. Historical motivation of the concept of offering and promising bribe // Journal of Russian Law. 2016. No 4. P. 93–100.

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§ 3. Legal qualification of corruption

That is why the second approach is more common under which corruption is determined as use by officials of their position to have improper financial or property benefits1. The main qualifying element of corruption is the use by a person of his or her official position to receive the improper benefit. Another characteristic feature of corruption is just as important, i.e. benefits to an official connected with breach of law. Taking this characteristic into account, is in line with the global legislative trend, it complies with international legal acts in which the Russian Federation is a participant and is reflected in the Russian legislation. For instance, under the Law on Combating Corruption, corruption is: a) abuse of office, bribegiving, bribetaking, abuse of function, commercial bribery or any other illegal use by a natural person of his or her official position despite the lawful interests of the society and the state for the purposes of receipt of money, values, other property or services of proprietary nature, other property rights for himself or herself or for any third parties or unlawful provision of such benefits to the said person by other natural persons; b) performance of the said actions on behalf of a juridical person. In international legal acts there are provided sometimes characteristics of certain actions (bribery of officials, misappropriation or other misuse of property by an official, abuse of authority for lucrative purposes, etc.). This approach is used in doctrinal definitions of corruption: «corruption is the use by state, municipal or other public servants (including by deputies or judges) or by employees of commercial and other organizations (including international) of their status for illegal receipt of property, any rights in it, services or benefits (including of intangible character) or provision to such persons of such property, rights in it, services or benefits (including of intangible character)»2. Still, we must admit that the definition provided in the Law of Combating Corruption is both too broad as it includes not just bribery-related actions but also other types of actions (cases of abuse

1

E.g., see: Administrative and legal issues of prevention of corruption and organized crime (round table) // Gosudarstvo i pravo [State and law]. 2002. No 1. P. 104; Kabanov P.A. Corruption and bribery in Russia: historical, criminological and criminal law aspects. Nizhnekamsk, 1995. P. 7.

2

Maksimov S.V. Corruption. Law. Liability. Moscow, 2000. P. 9.

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not related to bribery) in the category of corruption, and too narrow as it includes only lucratively motivated actions1. As we have noted already, corruption cannot any more be reduced to trivial bribery and abuse of office. It covers such types of offense as corruption lobbyism, corruption favoritism, corruption protectionism, cronyism, unlawful distribution and redistribution of public resources and funds, misappropriation of public resources for personal purposes, illegal privatization, illegal support and financing of political structures (parties, etc.), extortion, granting privileged loans, orders, abuse of function or office performed for lucrative purposes, use of information received through abuse of office, using personal contacts to receive access to goods, services, sources of profit, privileges, provision of various services to friends and relations, etc. Respectively, there are different classifications of corruption and corruption activities, e.g., commercial bribery and political corruption are distinguished. We believe that it is impossible to make up an exhaustive list of corruption activities. Corruption practices exist in the forms of criminal offense, administrative offense, civil offense or disciplinary offense. But neither the Criminal Code of the Russian Federation (hereafter the RF CC), nor the Code of Administrative Offenses of the Russian Federation (hereafter RF CAO) contain a separate set of elements of the respective crime or administrative offense. The only regulatory act determining a list of corruption offense is joint Direction of the General Prosecutor’s Office of the Russian Federation No 65/11 and the Ministry of Internal Affairs No 1 dated February 1, 2016 On Enforcement of Lists of Article of the Criminal Code of the Russian Federation Used in Preparation of Statistic Reporting under which the list of corruption-related offenses (list No 23) includes offenses having the following characteristics: – presence of appropriate subjects of the criminal offense which may be officials specified in the notes to Art. 285 of the RF CC, persons performing administrative functions in a commercial or any other organization acting on behalf of a juridical person as well as in a non-commercial organization, which is not a government body, local government body, state or municipal institution specified in the notes to Art. 201 of the RF CC; 1

60

See: Pugachev V.P., Solovyev A.I. Introduction in political science. Moscow, 1999.

§ 3. Legal qualification of corruption

– relation of the action to the official position of the subject, deviation from its immediate rights and obligations; – obligatory presence of a lucrative motive (the action is related to the receipt by him or her of property rights and benefits for himself or herself or for any third parties. – commission of the crime only with direct intention. An exception to this are offenses, which do not comply with those requirements but deemed corruption offenses under international legal acts ratified by the Russian Federation and national legislation as well as related to preparation of conditions for the receipt by an official, state or municipal servant as well as a person performing administrative functions in a commercial or any other organization, of benefits in the form of money, values, other property or service of property-related services, other property rights or illegal provision of such benefits. The joint Direction of the General Prosecutor’s Office and the Ministry of Internal Affairs breaks wrongful acts into categories, in particular, they can be referred to the list of corruption-related offenses without any additional conditions, for instance, provided under Art. 141.1. Violation of Procedure for Financing an Electoral Campaign of a Candidate, Electoral Association, Activities of a Referendum Initiative Group, Other Referendum Participants Group of the RF CC subject to certain conditions such as a mark of commission of offense by an official, state or municipal servant as well as a person performing administrative functions in a commercial or any other organization and with a lucrative motive (pp. 3, 4 of Art. 183 Illegal Receipt and Dissemination of Information Constituting a Commercial, Fiscal or Banking Secret of the RF CC, etc.). Besides, one of the categories includes offenses which may facilitate commission of corruption-related offenses included in the list subject to the presence in the statistics card of information on the commission of an offense related to preparations, including false preparation, of conditions for the receipt by an official, state or municipal servant as well as a person performing administrative functions in a commercial or any other organization of any benefits in the form of money, values, other property or illegal provision of such benefit (Art. 159 Fraud of the RF CC, etc.). The distinctive feature reflecting the corruption nature of offense is illegal use by a person of his or her official position and related powers 61

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despite lawful interests of the state and the society for the purposes of receipt of property-related benefits for himself or herself or for any third parties. Dispositions of certain articles of the RF CC specify directly the abuse of office specifically by an official (e.g. in Art. 170). The most common among the corruption-related offenses are offenses against public order, interests of state service and local government service (chapter 30 of the RF CC). The dispositions of arts. 201, 2014 of the RF CC specify a concrete type of special subject of crime (person performing administrative functions in a commercial or any other organization). Other sets of crime elements are listed as corruption acts as committed by a person abusing his/her office (e.g. part 2 of Art. 159 of the RF CC). Criminal law definition of the term «public authority» is provided in the note to Art. 318 of the RF CC and is universal for all offenses provided for under all articles of the RF CC of which the subject is a public authority. Under this note, a public authority is not just an official of a law enforcement agency of a regulatory body but any other official granted regulatory powers in accordance with the procedure established by law in respect of persons who are not subordinate to him/her. In qualification of crimes against public order, interests of government service or local government service, one should remember that the object of criminal law protection is only the lawful activities of officials who on a permanent, temporary basis or under special authorization perform the functions of a public authority or performs organizational and management or administrative business functions in government bodies, local government bodies, state corporations, and in the Armed Forces of the RF, other troops or military formations of the Russian Federation The distinctive feature of such crimes is that the can be committed by abuse by a person of his/her official powers or in relation to his/ her position. In qualification of this type of crimes it is necessary to take into account the general characteristics of the whole set of elements of such crimes. An obligatory characteristic of most sets of crime elements provided under Chapter 20 of the RF CC are active actions (Art. 62

§ 3. Legal qualification of corruption

285.1, 285.2, 285.3, 288, 289, 290, 292). Inaction is characteristic of the objective element of crimes provided for under Art. 287 of the RF CC. In some sets of elements of crime the objective element includes both action and inaction (e.g. arts. 285, 286 of the RF CC). The legal attributes of particular socially dangerous acts should be identical to the attributes of the objective element of the sets of crime elements provided for under the RF CC (disposition of the article taking into account the particular clause and part of the article of the Special Part or only under the particular article of the Special Part of the RF CC and taking into account the norms of the General Part of the RF CC if necessary, e.g. arts. 30,33). But corruption offenses are not just a group of legally similar sets of elements, they are a systemic unity of socially dangerous crimes. This is demonstrated by the results of using new methods of analysis of corruption mechanisms suggested by the Institute, first and foremost, of mathematical modeling which makes it possible to determine the nature of correlations between corruption and social conditions, estimate inaccuracies of criminological accounting and bribery latency level. For instance, the use of correlation method helped to identify a nearly absolute causal relation between some corruption offenses: abuse of functions (art, 285 of the RF CC), misuse of budgetary funds (Art. 285.1 of the RF CC), misuse of state non-budgetary funds (Art. 285.2 of the RF CC), exceeding authority (Art. 286 of the RF CC) and forgery (Art. 292 of the RF CC). The average correlation indicator for them was 0.95 with the maximum of 1.0. Besides, a correlation close to one may be an evidence that many offenses provided for under chapter 30 of the RF CC make a real formation of crimes. This fully concerns the cases of forgery and exceeding of authority. The correlation ratio of 0.96 suggests that, as a rule, the wrongful act is accompanied by entry by an official of knowingly fraudulent information into official documents and control calculations (particularly the use of factor analysis) helped to identify a high probability of completion of formation of Russian corruption as a stable social institute with an internal structure. According to the analysis, bribe-taking is usually accompanied not by forgery or exceeding authority but by misuse of budgetary funds and state non-budgetary funds. This regularity signifies that 63

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the largest corruption risks characterize the sphere of distribution of money and strict control over the use of budgetary and nonbudgetary funds is an efficient method of combating corruption (Table 5). These correlations confirm that corruption in Russia has become «professional», the evidence of which are high values of correlations between offenses provided for under arts. 285, 285.1, 285.2, 286, 292, 293 of the RF CC and low correlation of bribe-giving and commercial bribery. Table 5 Correlations between registered corruption offenses Articles of the RF CC

Art. 285

Art. 285.1

Art. 285.2

Art. 286

Art. 290

Art. 291

Art. 292

Art. 293

Art. 285 Art. 285.1 Art. 285. Art. 286 Art. 290 Art. 291 Art. 292 Art. 293

* 0,96 0,92 0,95 0,52 –0,03 0,96 0,6

0,96 * 0,92 0,90 0,90 0,74 0,92 0,90

0,92 0,92 * 0,95 0,94 0,63 0,90 0,96

0,95 0,90 0,95 * 0,44 –0,01 0,94 0,93

0,52 0,90 0,94 0,44 * –0,08 0,88 0,81

–0,03 0,74 0,63 –0,10 –0,08 * –0,26 –0,26

0,96 0,92 0,90 0,94 0,88 –0,26 * 0,75

0,6 0,9 0,96 0,93 0,81 –0,26 0,17 *

Considering the delictological characteristic of corruption in the Russian Federation, we should note that corruption-related offenses include only socially dangerous actions provided for under the criminal legislation. Liability for less dangerous actions is established under the RF CAO and some other acts. The administrative liability for corruption offenses is rather contradictory. For quite a long time its potential was not used for combating corruption offenses. Now an opposite trend can be observed. The general part of the RF CAO (Art. 2.4) suggests administrative liability of officials including those performing organizational and management or administrative functions in the government bodies, local government bodies, state and municipal organizations, as well as in the Armed Forces of the RF, other troops and military formations of the Russian Federation. Thus, a real opportunity is created for 64

§ 3. Legal qualification of corruption

the use of administrative liability for the purposes of combating corruption. The administrative offenses including a corruption component include offenses, which are not crimes, related to: – use of illegal financial support in financing of an electoral campaign, referendum campaign, conduct of election; – misappropriation or embezzlement of property; – provision (publication) of unfair information on placement of orders for delivery of goods, performance of works, provision of services for the customer; – breach of terms of a contract for delivery of goods, performance of works, provision of services for state or municipal needs; – misuse of budgetary funds and public non-budgetary funds; – inappropriate use of insider information; –non-observance by officials of state regulatory bodies and municipal regulatory bodies of the requirements of state regulation (supervision) legislation; – illegal transfer, offer or promise on behalf or in interest of a juridical person of remuneration to officials (persons who on a permanent, temporary basis or under special authorization perform the functions of a public authority or performs organizational and management or administrative business functions in government bodies, local government bodies, state and municipal institutions, state corporations, state companies, state and municipal unitary enterprises, joint-stock companies, of which the majority interest belongs to the Russian Federation, constituent entities of the Russian Federation or municipalities, as well as in the Armed Forces of the RF, other troops or military formations of the Russian Federation; persons who take positions established under the Constitution of the RF, federal constitutional laws and federal laws for immediate performance of the powers of government bodies as well as persons who take positions established under constitutions and charters of the constituent entities of the Russian Federation for immediate performance of the powers of the government bodies); – illegal employment of a public servant (former public servant). Other administrative offenses containing corruption components include those banned under the articles of the RF CAO and containing 65

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an indication of the abuse by a person of his or her official position of functions as the very act or as a qualifying component. A disciplinary offense of corruption nature is a kind of offense like using by a state or municipal servant or an employee of a commercial or any other non-government organization of his or her status to receive any advantage despite the interests of the state, the society, the people of organizations with (or without) violation of the established procedure of performing the respective service for which a disciplinary punishment is provided for. For instance, Federal Law dated June 27, 2004 No 79-FZ On the State Civil Service of the Russian Federation1 specifies the violation of prohibitions, and failure to perform the duties prescribed by the Law on Combating Corruption as grounds for terminating a service contract with a state civil servant. Thus, non-criminal corruption offenses entrench on the legal relations of preventive nature as regards corruption. The legal norms are violated which were introduced specifically to prevent corruption practices in the government bodies and local government bodies. It should be noted that Federal Law dated May 4, 2011 No 92-FZ On Amendments to the Criminal Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation in Relation to Improvement of Public Administration in the Sphere of Combating Corruption2 appended the RF CC by provisions under which fines were set for commercial bribery, bribe-giving, bribetaking and mediation in bribery in the amount of up to one hundredfold amount of the bribe but not more than 500 million rubles. For the purposes of differentiation of liability four types of bribe are provided for and mediation in bribery is introduced as a separate set of crime elements. The RF CAO was also modified. In the event of illegal transfer, offer or promise on behalf of a juridical person to a foreign official or an official of a public international organization of money, securities, other property, provision to such official of any property-related services, transfer of any property rights for the action or inaction of such official or person performing administrative functions in a 1

Official Gazette of the Russian Federation. 2004. No. 31. Art. 3215.

2

Official Gazette of the Russian Federation. 2011. No. 19. Art. 2714.

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§ 4. State anti-corruption policy: basic directions and new vectors

commercial or any other organization, a foreign official or an official of a public international organization in the interests of such juridical person, the juridical person is liable to a fine. Also, the concept of legal assistance on administrative cases is introduced. There are other acts for which there is administrative or disciplinary liability of persons committing them but they are not covered by the present-day legal definition of corruption. The following may be examples: – unreasonable requests of information provision of which is not provided for under the law; – unjustified preference of natural persons, individual entrepreneurs, juridical persons in performance of public services; – provision of preferences not provided for under the law in joining state or municipal service and further professional advancement; – informal relations of services exchange. This list can be continued. Besides, among the Russian experts still another understanding of corruption is getting more popular – as «the most successful systemic business in Russia»1. Here we speak about a very important component of corruption relations which gives it the properties of a systemic business, i.e. about the intermediary. This role is often forgotten in defining corruption. Mediation in bribery has become a kind of criminal business. In Russia it was criminalized by Federal Law dated May 4, 2011 No 97-FZ. Under it mediation in bribery is direct transfer of bribe on instruction of the bribe-giver or bribe-taker or any other assistance to bribe-giver and/or bribe-taker in achievement or realization of any agreement between them concerning bribe-giving or bribetaking. Promise or offer of mediation in bribery is also punishable. § 4. STATE ANTI-CORRUPTION POLICY: BASIC DIRECTIONS AND NEW VECTORS

The legal science offers different answers to the question about the relation between anti-corruption and legal policies. According to some researchers, anti-corruption policy is a separate and inalienable part of the general state policy of modern Russia the essence of which 1

See, for example the speech of the Chairman of the non-governmental organization National AntiCorruption Committee K. Kabanov. URL: http://lenta.ru/conf/kabanov

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is the activities of state and civic institutions related to prevention and mitigation of the adverse impact of corruption and with removal of the causes and conditions that helped its emergence1. Such approach seems too narrow as successful combating corruption is possible only in the event of zero tolerance from the society. It is impossible without complete reorganization of the world outlook of both individuals and the whole Russian society which means that the task should be solved using both legal means and the whole set of scientific, educational, organizational, economic and legal measures2. That is why we believe that in legislative instruments3, first and foremost in the Law on Combating Corruption, they speak not of anti-corruption policy but of principles of combating corruption. This task can and must be solved precisely by legal methods. Anti-corruption policy may be treated as a component of the state policy which is, as it was justly noted4, of ideological and activity nature and which consists in countering any willful use by officials and/or public figures of the discretional power granted to them for lucrative purposes i.e. for satisfaction of personal or group interests to the detriment of the society, the state or the people. It’s components are: – a package of objectives, goals, ideologies, programs, orientations implemented in the area of combating corruption and removal of 1

E.g., see: Filonenko T.V., Gayvoronskaya Ya.V. Anti-corruption policy within the system of measure of legal policy // Aktualnye problemy ekonomiki i prava [Topical issues of economy and law]. 2015. No 3. P. 114–115.

2

See: Vlasenko N.A., Gracheva S.A., Rafalyuk Ye.Ye. Theoretical analysis of legal means and legal models of combating corruption // Journal of Russian Law. 2012. No 11. P. 68–80.

3

The only exception is Law of the Republic of Tatarstan dated May 4, 2006 No 34-ZRT On Combating Corruption in the Republic of Tatarstan under which the anti-corruption policy of the Republic of Tatarstan is the «activities of subjects of the anti-corruption policy of the Republic within their power aimed at combating corruption and mitigation of its adverse influence». Subjects of anti-corruption policy may be government bodies; local government bodies; a special state body performing implementation of the anti-corruption policy of the Republic of Tatarstan; organizations, public associations and natural persons involved within their powers in resolution of tasks on implementation of the anti-corruption policy; mass media. In other words, any person may be a subject of anti-corruption policy of the Republic of Tatarstan. This definition seems to be too general and does not make it possible to single out the specific features of the anti-corruption policy which would make it possible to differentiate between it and other policies, especially from the state policy, and from other types of the «subjects’ activities within their powers».

4

For details, see: Malko А.V. Theory of legal practice. Moscow, 2012; Filonenko T.V., Gayvoronskaya Ya.V. Ibid.

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§ 4. State anti-corruption policy: basic directions and new vectors

its causes, formation of zero tolerance of the society to it’s slightest manifestations. – scientifically motivated, consistent, purposeful systemic activity of all subjects of law (first and foremost of the government) performed by legal and non-legal (political, organizational, technical, financial and economic, etc.) means for the purposes of minimization of causes of corruption as well as of its adverse consequences. It is based on such principles as: – behaviorism. Any group actions come from the behavior of separate individuals so one of efficient measures of combating corruption in government bodies is introduction of the state civil servants turnover mechanism1; – axiologiness (value orientation). Any person is assumed to have a system of values, some ideas about rights and obligations and liability for his or her actions. That is why development and implementation of anti-corruption policy require understanding of the bases, conditions, limits and possibilities of use of both world outlook stereotypes and tools of alignment of interests of different social groups including government interference with this process. So we once again should emphasize that the leading role in the formation of an anti-corruption policy belongs to political consciousness which structures the social needs of groups and largely affects their emergence. – management by objectives. There are two kinds of controlling mechanisms in the society – spontaneous and willful. Under spontaneous one, regulating control action on the system is an average result of the collision and interaction of different and frequently contradicting force and mass of accidental singular acts. However, in the sphere of combating corruption such approach is unacceptable, because here we cannot count on spontaneous process development, which will force our country to maneuver between the Asian and Latin American development models of corruption2, and we have to implement gradually social «future-design» technologies. Public interests, the main of which is the protection of society, state and 1

Paragraph 4 of subclause b of clause. 2 of the National Anti-Corruption Plan for 2010–2011. appr. by the President of the RF on July 31, 2008 No Pr-1568 // Official Gazette of the Russian Federation. 2010. No. 16. Art. 1875.

2

See the essence of the specified models: Nurpeisov D.K. Corruption as a problem of state administration // State authority and local self-government. 2006. No. 2.

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person from threats generated by corruption-related actions, must be laid at the basis of this «design». In this context class, national, gender and other determinants of governance and authority should gradually be eliminated; – legitimateness. It is supposed to create a branched and internally consistent system of anti-corruption legal acts1, as well as to ensure the preciseness of legal status, the definiteness of rights and liabilities of each participant of legal relations in the sphere of preventing corruption and combating it, because it is prohibited to conduct anticorruption policy by illegal methods; – consistency. The Russian Federation is a federal state, for this reason, the defense of rights and liberties of a person and citizen, securing legitimateness, law and order, public safety are in joint competence of the Russian Federation and its constituent entities (Paragraph «b» Part 1 Article 72 of the Constitution of the Russian Federation). The setting of the joint competence in this sphere is connected with the fact that the defense of rights and liberties of a person and citizen, the defense of legal rights and interests of society, state and people are fully possible only when federal government agencies, constituent entities of the Federation as well as local authorities take part in it. The reason for this is that particularly the government agencies of the constituent entities of the Russian Federation and local authorities are better aware of citizens’ specific needs and they can choose measures and tools, which are urgent and necessary for defense of citizens’ rights by the most precise way. At the same time, such measures can be taken only in strict adherence to regulation of the rights and liberties of an individual and a citizen of the Russian Federation, questions of public and state interest protection, which is performed by public authorities in compliance with Paragraph «b» Article 72 of the Constitution of the Russian Federation2. At the same time, Russian anti-corruption policy shall be considered in the unity of federal and regional components, and anti-corruption activities in the constituent entities of the Russian Federation and in the municipal units shall be performed on the 1

The characteristics of the system of legislative and other anti-corruption regulatory legal acts, which are applied in the Russian Federation is provided in Chapter 2 of this study.

2

For details, see: Comment to the Constitution of the Russian Federation / А.I. Аbramova, А.B. Agapov, Е.G. Azarova et al.; managing editor L.А. Okunkov. М., 2002. P. 551.

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§ 4. State anti-corruption policy: basic directions and new vectors

grounds of federal standards and principles, established by the federal law. Besides, the scale of an anti-corruption goal is responsible for general principles of its solution both in public law and in private spheres. That’s why combating corruption in a state and private sector must be built on the general principles: publicity and transparency of activities; avoiding conflicts of interest; personal control and responsibility; combining of legal and illegal means; international collaboration; – «glocalization». The gist of the principle is reflected to the fullest extent by the motto «think globally – act locally». Under the influence of expansion and intensification of globalization processes, corruption has become a transnational phenomenon in recent decades. It affects society and economy of each country1, which has become an objective cause for the development of the global anti-corruption policy in the world society. Its key provisions are stated in the documents of the UN and other international institutions, in international conventions, treaties and agreements, which will be dealt with in Chapter 2 of this study. Here we also note that the global anti-corruption policy presupposes a consistent methodological basis and uniform criteria. However, the scale, the most common manifestation of corruption and the effectiveness of anti-corruption activities are in large part determined by systemically important factors, forming a local community and a national state. Firstly, these are specific local living conditions (socioeconomic, ethnocultural and others), secondly, these are various parts of collective consciousness such as customs, moral codes, life principles and so on which are traditional for this region (locus). In this regard, it is impossible to apply common principles, thus being abstract to a great extent, of anti-corruption policy of the world society as standards for practical activities of individuals and social groups without regard to national and local characteristics. In the Russian Federation, the «adaptation» of conceptual framework of anti-corruption policy to national and local conditions takes place not only by means of the legislative acts of the Russian Federation and constituent entities of the Russian Federation, but 1

See: UN Convention against Corruption. Preamble. URL: http://www.un.org/ru/documents/decl_ conv/conventions/ corruption.shtml

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also by means of the National strategy. According to the specified official act, primary objectives of the anti-corruption policy of the Russian state are the following: - creation of legal and institutional anti-corruption bases which meet time requirements; - implementation of anti-corruption legislative acts and management decisions. In other words, not only providing a legislative framework for any anti-corruption principles and procedures, but also creation of the mechanism of their practical embodiment, specification of a general rule using the setting of subjects’ activities processes, detailed definition of their competence, specified instructions in lower-level acts and precise norm reference to a particular person and a fact have special relevance1; – creating conditions hampering the possibility of corrupt behavior and aimed at reduction of corruption; – enforcement of the norms of anti-corruption behavior by members of the society including the use of coercive measures in accordance with the legislative acts of the Russian Federation. The necessity to settle the two last objectives points at special relevance of the measures concerning the formation of anti-corruption political consciousness of Russian citizens, including the measures of State support for producing, distribution and copying TV and radio programs dealing with education in the law. The significant direction of prevention and extirpation of corruption causes as a social phenomenon shall become anti-corruption education of citizens making it possible to define new worldview orientations. By means of a modern training and educational system, the problem of particular importance can be solved: the development of new paradigmatics of a modern culture, the establishment of the advanced education system, which enables «zero tolerance» towards corruption practices and processes. It is a challenge taking into account stereotypes of social consciousness, fundamental regularities of existence and thinking correlation. However, without its resolving anti-corruption progress will have temporary and sporadic character, that is why it is so important to catch and support any initiatives undertaken in this respect. 1

72

See: Tikhomirov Yu.А. Law enforcement: from Spontaneity to the System // Journal of Russian Law. 2007. No. 12.

§ 4. State anti-corruption policy: basic directions and new vectors

It should be noticed that certain steps in this regard have already been taken. Thus, a standard training module «Corruption: causes, manifestations, countermeasures» was developed in 2009 by the Institute, the content of which covered causes and typical manifestations of corruption in the society, the characteristics of anti-corruption legislation, procedural and institutional and social measures of corruption prevention and remedy, evaluation technologies of legal acts and activities for corruptogenicity1. In 2011, the Institute developed the Plan for the preparation and usage of anti-corruption training modules based on the consistent connection of other training modules («Programs pyramids»), and it was approved by the alignment meeting held with the participation of representatives of the executive public authorities, institutes of the Russian Academy of Sciences, departmental academic institutions, the leading universities and colleges of the Russian Federation. A standard training module as an obligatory part engaged in all other modules shall lie at the heart of such pyramid; the latter are determined by a special subject oriented towards different listeners’ types. This approach provides an opportunity to create consistent training packages, to conduct training sessions effectively, to correlate training modules with education and research plans in the anticorruption field2.

1

The program was approved by decision of the Anti-corruption Presidium of the Presidential Council of the Russian Federation dated January 23, 2009 No. А4-1270.

2

The standard of higher professional education majoring in «Law enforcement activities» can be given as an example of the implementation of the anti-corruption subject into the educational standard. Capability to show uncompromising attitude towards corrupt behavior is mentioned among the requirements to mastering basic educational programs for specialist training. According to this standard, a graduate must be able to perform legal review of regulatory legal acts projects in order to avoid the provisions promoting the arrangement of conditions for corruption, to give qualified legal opinions and counsels, to find out corrupt practices among staff members and to assist in their suppression. The training of such specialist includes: 1) humanitarian cycle – knowledge of the bases for anti-corruption behavior of law-enforcement officers; capability to give moral evaluation to corruption practices and to other professional ethics violations; skills of anticorruption behavior; 2) professional cycle – learning the corruption gist and its essence as a social and legal phenomenon; learning determinants of corruption, peculiarities of its manifestation in the criminal behavior mechanism, legal, organizing and tactical anti-corruption means, main directions in the prevention of corrupt behavior of employees and officers in law enforcement authorities. The expert in this sphere must be able to combat corruption practices in official activities.

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At the present time, the «crystallization» of the necessary preconditions for a new anti-corruption culture in personality development takes place, among which the following can be specified: 1) the confirmation of the dominant idea in the system of education and training. The perception by people’s community of imperatives of social consciousness is formed at this level, which provides intolerable citizens’ attitude to corruption. This dominant idea in the educational process presupposes the significant force of teacher’s moral example; edifice learning contributing to indissoluble connection and transfer of best generations practices, seamless, synthetic, consistent and synergetic combination of traditional and innovative directions in teaching; 2) support for the processes of self-regulation, principally implying individual growth oriented at reinterpretation of the past cultures experience, active spiritual search in the frontier areas of scientific and other forms of knowledge; countering the processes of corruption mythologization and banalization; 3) penetration into other cultures’ experience, mastering alternative strategies of discovering and overcoming of the syndrome of personality destruction; learning typological predictors of corruption as a social phenomenon. The National strategy also names other directions of anticorruption activities in the Russian Federation: 1) securing the participation of civil society in combating corruption; 2) improving the work of central and local authorities; 3) optimization of conditions, procedures and mechanisms of central and local government procurement, reduction of barriers for entrepreneurial activities; 4) use of modern legal technologies, including system-wide measures, enlargement of scope of persons in relation to whom anticorruption laws set certain prohibitions and restrictions, lay new responsibilities1; addition to the check-list of wrongful acts, which 1

74

Thus, for example, according to Paragraph 5 Part 1 Article 13 of Federal Law dated March 2, 2007 No. 25-FZ On Municipal Service in the Russian Federation, a citizen can’t be admitted to the municipal service, and a municipal official can’t be in the municipal service in case of proximity of blood or relationship by marriage (parents, spouses, children, brothers, sisters, and also brothers, sisters, parents, children of spouses and spouses of children) with the head of a municipal unit who is in charge of a local administration. Prior to coming into effect of the Federal Law dated

§ 4. State anti-corruption policy: basic directions and new vectors

refer to corruption, that is especially important considering the capability of corruption to «mimicrize», and others. Generally, activities on the implementation of anti-corruption policy in the Russian Federation can be viewed as a system of interdependent legal, economic, educational, disciplinary, organizational and other measures aimed at prevention of corruption, achievement of the utmost effectiveness of restrictive measures, responsibility and compensation of harm made by corruption offenses. The anti-corruption policy itself is explicated as a system unity of social, economic and ethical aspects of community commitment, having both intra-paradigmatic1 and goal-directed2 nature and focused on the prevention of corruption and combating it and also on the elimination of causes generating this adverse social phenomenon. It must be emphasized that working-out and adoption of the National strategy and two-year anti-corruption plans, which are taken into development of its provisions are not a sole implementation tool of the anti-corruption policy in the Russian Federation. Prevention of corruption and struggle against it hold a significant place both in state functioning and in civil activities; that is why the mechanism for the implementation of the anti-corruption policy shall include the sum of mutually reinforcing and interactive legal institutes established by the state and society. This means that the basis of the Russian state anti-corruption policy is legal ideology, principally expressed in the norms of the Constitution of the Russian Federation, in federal constitutional laws, legislative and other regulations governing different anti-corruption aspects.

November 21, 2011 No. 329-FZ On Introducing Amendments to Certain Legislative Acts of the Russian Federation Associated with the Improvement of State Administration in the Field of Combating Corruption, the listing of close relatives and legal relatives did not include spouses of children. 1

American historian and science philosopher T. Kun defined the concept of paradigm also as a «standard problem solution in the field of scientific research». In this view, activities, based on using, applying available methods and norms, come across as activities being implemented within the framework of certain paradigm – inner paradigmatic activity. It is connected with the search for possible means to reach the goal; it is goal-oriented and reasonable. For details, see: Kun T. Structure of Scientific Revolutions. М., 2003.

2

Purposeful activities are not limited by the commitment to available action programs, but it presupposes the necessity for reconstruction of its foundations. The specific character of «human phenomenon» is revealed exactly in purposeful activities.

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In addition, the direction and objectives of the anti-corruption policy are determined by the general state policy, social, economic and criminogenic situation in the society; the anti-corruption policy shall be integrated into current process of socio-economic development of the society. Two key moments should be noted here: 1) the recognition of the Russian federal state only as a sovereign unit is the guaranty for observance of common political, economic, social, cultural and other interests of the nation, that is expressed in the constitutional principles of state’s unity and integrity within its boundaries (preamble, Article 4 and 5 of the Constitution of the Russian Federation). An essential factor for maintaining territorial integrity of the Russian Federation is a guaranty for unity of its legal framework, including through the use of judicial control, public prosecutor’s supervision, activities of presidential plenipotentiary in federal regions, and also the unity of the state authority and its system1; 2) the Russian Federation is a social state, the strategic aim of which in the long run is declared to be a transition to innovative socially oriented type of economic development, and its policy is aimed at the arrangement of conditions for decent living standards and free personal development (Article 7 of the Constitution of the Russian Federation), which requires the achievement of the main objective of the Russian state’s anti-corruption policy, i.e. the defense of rights and legal interests of the society, the state and people from threats caused by corruption deeds. The essential elements of the mechanism for the implementation of the anti-corruption policy are public authorities of the Russian Federation – legislative, administrative, judicial2 and, in total, the checks and balances system recognized at the constitutional level, which allows each branch of the government to support state’s principles within the frame of their own jurisdiction.

1

For details, see: Institutes of constitutional law: monograph/ managing editor L.V. Andritchenko, А.Е. Postnikov. М., 2011. P. 193–204.

2

For details, see Chapter 3 and 4 of this study.

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Chapter 2 DEFINITION OF CORRUPTION IN INTERNATIONAL AND NATIONAL LAW § 1. INTERNATIONAL TREATIES AND DEVELOPMENT OF RUSSIA’S ANTI-CORRUPTION LEGISLATION

International institutions, and first of all, the United Nations Organization (the UN) directed attention to the necessity of combating such socially dangerous phenomenon as bribery with regard to international business and financial transactions in the 1950–1960s already. In the 1970s, in the context of the creation of a new international economic order, a legal definition for corruption was being developed and an international agreement on combating illicit payments and other kinds of corruption was being prepared in the UN. Thus, the Resolution of the UN General Assembly 3514 (XXX) dated December 11, 1975 «Precautions against corruption exercised by transnational and other corporations, their intermediaries and other parties concerned» declaimed against all forms of corruption, including bribery in international business transactions, and recognized the right of states to adopt legislation, conduct inquiry and make corresponding legal arrangements against transnational corporations, connected with corruption1. However, these efforts have made no significant results, they had fragmentary nature and finally did not have logical end in the form of an obligatory international legal act. In the 1980-1990s, the development of international legal arrangements became more intense in the specified field. UN efforts resulted in the adoption by the General Assembly of the UN of Declaration on Combating Corruption and Bribery in International Business Transactions, which included international code of conduct of public officials2. Work on preparation and acceptance of 1

See: UN report A/Res/3514 (XXX) «Precautions against corruption, exercised by transnational and other corporations, their intermediaries and other parties concerned».

2

See: UN report A/Res/51/191 «UN Declaration on Combating Corruption and Bribery in International Commercial Transactions».

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Definition of corruption in international and national law

documents regulating international anti-corruption cooperation has started in the UN and in regional international organizations. As a result, a considerable number of international treaties and acts of international agencies (resolutions) were passed, in which challenges of combating corruption in certain spheres of state and social life were defined1. Herewith, the nature and the content of the passed acts varied depending on their belonging to universal and regional international institutions. Acts of soft law (resolutions, declarations and so on) were generally created in the UN and other universal institutions, but regional international institutions began to pass international binding treaties alongside with resolutions2. Speaking about the reasons of such rapid rise of the concern towards combating corruption on the international level, J.B. Terracino, the officer of the OECD, considers it to be a result of factor combination such as the end of cold war, intensification of tendencies for globalization and world economic integration, the growth of trade liberalization and implementation of democratic reforms, and also introduction of the «proper administration» subject to a world agenda3. This opinion can be accepted with reserve that anti-corruption strategy within the framework of international organizations was being developed during almost five decades, and the end of cold war became an impulse for search of necessary compromises in order to accept international legal documents in view of the overcoming of the world split based on political and economical characteristic. Awareness of corruption as a serious threat for fundamental principles of a state, law and society4 and its recognition as a 1

Especially this subject became debated in 1990s, and that fact allowed ex-managing editor of Foreign Policy magazine M. Naim to call that period the «ejection of corruption». See: Terracino J. B. The international legal framework against corruption. States’ obligations to prevent and repress corruption. Cambridge, 2012. P. 39.

2

For example, Inter-American Convention on Combating Corruption, passed by the Organization of American States on March 29, 1996, Convention on Combating Corruption Affecting Public Officials of European Communities or Public Officials of European Union Member States dated May 26, 1997, ОECD Convection on Combating Bribery of Foreign Public Officials in International Commercial Transactions dated November 21, 1997, Convention of the Council of Europe on Criminal Liability for Corruption dated January 27, 1999.

3

Terracino J. B. Op. cit. P. 39.

4

See: Khabrieva Т.Ya. Corruption and law: doctrinal approaches to problem statement (instead of introduction)// Corruption: nature, manifestations, countermeasures: monograph. P. 5.

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§ 1. International treaties and development of Russia’s anti-corruption legislation

global political issue1 has promoted international legal regulation of combating it both at the global level and at a regional level. International treaties have become the most important international and legal countermeasure to corruption2, which establishes international obligations of member states, promoting states agreed measures at the national and international level. Recognizing the role of international anti-corruption conventional law in creation of necessary international and legal anti-corruption conditions, we should not underestimate the significance of norms of soft law in the international legal regulation of states’ collaboration. Acts of soft law, the majority of which was issued by international organizations, supplement existing international anti-corruption treaty obligations by means of «providing supplementary landmarks and details for implementation of these obligations»3. Besides, acts of international organizations, taking into account more simplified procedure of their passing as compared to international treaties, are able to respond more effectively to changing conditions of international anti-corruption collaboration. At the present time, there are 14 international multilateral acts of contractual nature (international contracts and protocols), regulating international anti-corruption collaboration. The first international treaty in this sphere is considered the Inter-American Convention against Corruption, adopted by the member states of the Organization of American States (OAS) in 1996, although the Convention on the Protection of the European Communities’ Financial Interests was adopted a year earlier4. This is due to the fact that the latter touched the problem of combating corruption only indirectly5. International anti-corruption contractual right regulates collaboration of states at the universal level (2000 UN Convention against transnational 1

See: Terracino J.B. Op. cit. P. 47.

2

See: Legal arrangements for implementation of anti-corruption conventions: monograph/ Т.Ya. Khabrieva, О.I. Tiunov, V.P. Kashepov et al.; managing editor О.I. Tiunov. М., 2012. P. 52–53; Terracino J.B. Op. cit. P. 47.

3

Terracino J.B. Op. cit.

4

European communities were reorganized into the European Union and the European Atomic Energy Community in 2007.

5

See: Kapustin А.Ya. Legal anti-corruption arrangements in the European Union // Corruption: nature, manifestations, countermeasures: monograph/managing editor Т.Ya. Khabrieva. М., 2012. P. 105.

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organized crime, 2003 UN Convention against Corruption), at the regional level (conventions and protocols of EU, The Council of Europe, OAS, Economic Community of West African States (ECOWAS), South African Association for Development, the African Union), and also in relation to certain fields (ОECD (Organization for Economic Co-operation and Development). The Russian Federation is a party to the standard 2003 UN Convention against Corruption and to a number of the most significant regional conventions, including the Council of Europe Criminal Law Convention on Corruption 1999, the 1997 ОECD Convention against Bribery for Foreign Public Officials in International Business Transactions. The issue concerning the possibility of Russia joining the Council of Europe Convention on civil liability for corruption is discussed in scientific literature and mass media. Not setting the objectives of legal content analysis of all the anti-corruption international treaties1, we lay the emphasis on the most significant kinds of international commitments, established by conventions, in which the Russian Federation takes pArt. The study of anti-corruption international treaties allows for the conclusion that the member states undertake a wide range of international obligations of various character2. Like other international treaties, anti-corruption conventions include declarative regulations and nonbinding norms. The comparison of provisions of various anti-corruption conventions allows finding that sometimes one and the same rule is defined in them in different ways. Herewith, some rules are binding in one treaty; however, they are non-binding in another one. For example, the criminalization of an attempt to commit an act of corruption and preparation to commit such act in the 2003 UN Convention against Corruption (Paragraph 2 and Paragraph 3 Article 27) is treated as nonbinding, whereas it is left at the discretion 1

For details, see: Legal arrangements for implementation of anti-corruption conventions. P. 55–82.

2

Thus, B.I. Osminin shares the opinion that it’s possible to distinguish three groups of provisions of the UN Convention against Corruption according to the degree of their bindingness: binding provisions, which require adoption of legislative measures; measures, the possibility of which to be adopted by the member states must be considered or adoption of which must be strived for by them; measures, which are nonbinding. See: Osminin B.I. Implementation of anti-corruption norms and self-enforceable and non-enforceable international treaties// Legal arrangements for implementation of anti-corruption conventions. P. 120.

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of a member state. This is proved by a legal form, in which the Convention establishes this obligation. The Convention introduces the fact that each member state may adopt such legislative and other measures as may be necessary for recognizing an act to be criminally liable according to its domestic legislation. The use of the verb «may» allows leaving criminalization of such acts to the discretion of each member state. At the same time, in the 1997, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions this obligation is formalized to be binding excluding any other options of the treaty. Paragraph 2 Article 1 of the Convention establishes that each party uses reasonable efforts to determine an attempt of bribery or conspiracy with intent of bribery of a foreign public official as being a penal act to the same extent as an attempt of bribery or conspiracy with intent of bribery of a foreign public official of this party. Liberalization of international legal obligations occurring in the international contractual practice can be determined by different circumstances. Thus, according to the opinion of J.B. Terracino, this approach to stating obligations of anti-corruption conventions is «beyond arguments». The famous expert explains this fact by the necessity to compromise in the course of conducting international negotiations concerning conclusion of multilateral treaties as far as contracting parties cannot always come to an agreement on some issues under discussion. That is why in addition to traditional international legal obligations of mandatory nature, treaties contain obligations in the form of «nonbinding recommendations»1. In our opinion, it is not just an addition to binding conventional obligations. In this case, we must keep in mind a number of legal conditions faced by states when developing anti-corruption conventions. First of all, issues concerning criminalization of certain acts according to national criminal law are within internal competence of each state, i.e. they relate to its sovereignty. Anti-corruption conventions deliberately emphasize the fact that their provisions do not limit the sovereignty of member states. Article 4, Protection of Sovereignty, of the UN Convention against corruption, deliberately 1

Terracino J.B. Op. cit. P. 54.

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emphasizes that member states perform their obligations according to the Convention in accordance with the principles of sovereign equality and inviolability of states’ territories and the principle of non-interference in internal affairs of other states. In other words, nobody (neither member state nor the UN or any other international organization) can demand from a state to comply with obligations, which were not accepted by it. It should be reminded that as far back as in the Resolution of the General Assembly 3514 (XXX), Precautions against Corruption Exercised by Transnational and Other Corporations, Their Intermediaries and Other Parties Concerned, it was deliberately emphasized that the use of anti-corruption legislative and other measures is a right but not an obligation for states. Under Article 4 of the 2003 UN Convention against Corruption, it was defined that it does not empower a member state to exercise abroad the jurisdiction and functions, which are entirely within the competence of agencies of this state in compliance with its domestic legislation. Moreover, it is impossible to treat this approach as final and constant. Indeed, the Convention mentioned above says nothing about it, nevertheless it can be assumed that after some time (the duration of which, to say the truth, is extremely hard to define) the majority of member states finally implement «a soft (optional) obligation» in their domestic legislation, and there is a strong possibility that these states will expect similar decisions from other member states. In any case, theoretically the monitoring frameworks are fully capable to make impact on states unwilling to adopt legislative measures concerning the implementation of «soft (optional) obligations», through nonbinding acts. Consequently, building an anti-corruption strategy for a long period (for over 20–25 years), growth dynamics of legislation of other member states should be taken into account in certain pArt. In their turn, mandatory provisions of anti-corruption conventions create obligations, which also have diverse nature. In scientific literature, there is a subdivision of mandatory provisions of anti-corruption treaties into two types: of purposive character (obligations of result) and obligations of «better strive» (obligation of conduct)1. Indeed, some binding anti-corruption provisions can 1

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See: Terracino J.B. Op. cit. P. 54–55.

§ 1. International treaties and development of Russia’s anti-corruption legislation

create obligations for a state to adopt laws or take some actions for the achievement of some objective. For example, certain anti-corruption treaties bind states to take legislative and other measures in order to recognize the bribery of a foreign public official as a criminal offense1. Thus, the objective of this obligation is the criminalization of this act no matter which measures can be taken by a state for its achievement. At the same time, what stands out is the fact that there are anti-corruption provisions of treaties, which call for states either to consider the possibility of taking some measures or strive for their adoption. For example, the member states of the UN Convention against Corruption are bound to consider the possibility of adoption legislative and other measures for recognition of the bribery as a criminal offense, as well as getting some undue preference personally or through an intermediary by a foreign public official or an official of a public international organization on behalf of a public official or other natural or juridical person, with the intent that this public official will perform some act or will be inactive while performing his/her position obligations. In this case, states must «think» about these measures, but they do not bind themselves to achieve some particular result. This definition of an obligation complicates the estimation of its observation by states, and this fact is criticized by scientists. Actually, there is no denying that it is difficult to comprehend how seriously a state treats the criminalization of these acts in its national legislation. In any case, acceptable procedures on this point are not formed. Of course, a state can submit facts that discussions concerning the necessity of adoption of legislative measures aimed at criminalization of corresponding acts are held by government agencies in the media or social organizations or civil society institutions2. These discussions can take the form of Parliament proceedings, but this raises the question of whether it is possible to perceive these actions as 1

Article 15 of the UN Convention against Corruption binds states to criminalize both bribery (promise, suggestion or granting some undue preference) of such officials, and extortion or getting some undue preference on the part of foreign public officials. Articles 2 and 3 of the Council of Europe Criminal Law Convention on Corruption mention active and passive bribery of a foreign public official.

2

Sometimes the issue concerning «the reality of efforts» taken in order to ensure the specified behavior is raised in this regard, that is, in our opinion, hard to define in practice.

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observation or implementation of the international anti-corruption obligation. Apparently, an answer will be negative, as until such a law is passed, a state has the obligation to adopt corresponding legislative measures. If the law is not adopted as a result of taken measures (discussions, parliament proceedings and so on), the state shall think about additional measures which can contribute to the implementation of its international legal obligation. The absence of reference to the timeframe of its implementation is a poor factor of mechanism for the implementation of this international legal obligation (obligation of conduct), but this fact is probably based on considerations with regard to securing sovereignty while adopting legislative solutions. There is one more aspect of the obligation of conduct (better strive), which does not explicitly presuppose enactment. Thus, under the UN Convention against Corruption (Paragraph 2 Article 39), states are invited to address the issue of how to reward their citizens and other residents for the report to national investigation and prosecution authorities about the commission of a crime recognized by the Convention. Of course, the obligation to address the issue of reward for citizens and other residents for the report to national investigation and prosecution authorities about the commission of corruption-related crimes shall not be limited to public discussion of this issue. The decision to hold a discussion on the issue whether it is necessary to develop and adopt government program defining measures aimed at rewarding of appropriate behavior of citizens and other individuals in relation to the facts of corruption-relates crimes can become the most obvious evidence of state’s striving to meet this commitment. The implementation of this program can be assigned to a government agency, which is vested with the necessary authority (for example, the Ministry of Justice). It has been denoted in scientific literature that these binding obligations of the member states of anticorruption treaties are often interpreted as optional requirements1, although they cannot be identified with provisions, which are defined as ordinary recommendations (optional obligations). In this case member states 1

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See: Legislative Guide for the Implementation of the United Nations Convention against Corruption. Vienna, New York, United Nations. 2006. P. 152.

§ 1. International treaties and development of Russia’s anti-corruption legislation

must strive to take measures which can have no legislative nature (although this is not forbidden), and, consequently, thus they ensure compliance with their obligations. The implementation policy of provisions of anti-corruption conventions into the Russian legislation must adopt not only scientific approaches and theories1, but also existing international and domestic arrangements for the implementation of international treaties, and also the nature of international obligations, which compliance is required from a member state of the anti-corruption convention. It appears that this fact allows for implementing lawmaking more flexibly in this sphere. Here the basis is the fact that the implementation of international obligations implied by anti-corruption conventions is meant to be an essential part of implementation of state anticorruption policy. Herewith, the effectiveness of implementation of corresponding international anti-corruption standards will be mediated in some degree by their implementation into the national legislation. As fairly noted by the member of the Russian Academy of Sciences T.Ya. Khabrieva, the interpretation of international conventions by international organizations not only significantly extends the frameworks of international legal regulations, but also it contributes to them essential elements of improvisation, which are not direct reflection of standard international legal norms2. At the same time, the implementation of international anticorruption obligations is secured by a state, which shall strive for non-admission of fragmentarity of international anti-corruption standards. Taking into account the fact that many provisions of international anti-corruption treaties are not self-enforceable, it is necessary to adopt implementing legislation in order to enact them in national legal frameworks. The Russian Federation has opted for this way in regard to implementation of treaty obligations of anti-corruption 1

See: Legal Framework for Implementation of Anti-corruption Conventions: monograph / T.Ya. Khabrieva, O.I. Tiunov, V.P. Kashepov, etc.; Editor-in-Chief Dr., Prof. O.I. Tiunov, Executive editor Prof. A.Yа. Kapustin. M., 2015. P. 14–22.

2

The speech of Т.Ya. Khabrieva during the Second Eurasian Anti-corruption Forum (Moscow, June 4, 2013) // See Review of the Second Eurasian Anti-corruption Forum (Tsirin A.M., Dymberova E.D., Shindyapina E.D. Financial mechanisms against corruption: international standards and national solutions // Journal of Russian Law. 2013. No. 9. P. 101.

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conventions, using material incorporation. In particular, Federal Law No. 280-FZ dated December 25, 2008 On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Ratification of the United Nations Convention against Corruption dated October 31, 2003 and the Criminal Law Convention on Corruption dated January 27, 1999 and the Adoption of the Federal Law On Combating Corruption was adopted. This Federal Law provides for amendments to a wide range of Russian legislative acts, in particular to Federal Laws No. 2202-I dated January 17, 1992 On the Prosecutor’s Office of the Russian Federation, Federal Law No. 40-FZ dated April 3, 1995 On the Federal Security Service, Federal Law No. 144-FZ dated August 12, 1995 On OperationalSearch Activities, Federal Law No. 114-FZ dated July 21, 1997 On Service in Customs Bodies of Russia, Federal Law No. 118-FZ dated July 21, 1997 On Court Bailiffs, Federal Law No. 53-FZ dated March 28, 1998 On Military Duty and Military Service, Federal Law No. 76-FZ dated May 27, 1998 On the Military Men Status, Federal Law No. 128-FZ dated July 25, 1998 On the State Dactyloscopy Registration in the Russian Federation, Federal Law No. 25-FZ dated March 2, 2007 On Municipal Service in the Russian Federation, Criminal Procedure Code of the Russian Federation (RF CPC), Code of Administrative Offenses of the Russian Federation (RF CAO), Labor Code of the Russian Federation (RF LC), Civil Code of the Russian Federation (RF CivC), Criminal Code of the Russian Federation (RF CC). Consequently, the implementation of anti-corruption conventions is realized through the adoption of a separate law on combating corruption, and also the amendments to legislative acts. This is one of the most important peculiarities of the marked mechanism, which has made it possible to adapt provisions of anti-corruption conventions to peculiarities of the Russian legislation. Herewith, the achievement of objectives of anti-corruption conventions was accompanied by implementation of corresponding organizational measures at national and international levels. Besides the implementation of the UN Convention against Corruption and the Council of Europe Criminal Law Convention on Corruption, the Russian Federation faithfully carries out international obligations resulted from the OECD Convention on 86

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Combating Bribery of Foreign Public Officials in International Business Transactions1. In this connection, it should be noted that the implementation of the OECD anti-corruption standards, provided for by the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, takes place in the member states by means of amendments to legislative acts and first of all to criminal legislation. Besides, consideration should be given to self-enforceable provisions of international anti-corruption treaties of the Russian Federation, in particular, a number of provisions of the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on improving cooperation in the field of combating corruption can be used without introduction of amendments to the national legislation. Parties within the frame of this Agreement, provided their compliance with the legislation and international obligations, cooperate in order to promote the defense of rights and legitimate interests of their citizens, legally protected interests of the society and the state, working out of a consistent strategy and cooperative measures. 1

Thus, the Decree of the President of Russia No. 180 dated February 13, 2012 On the Russian Federation Authorities in Charge of the Implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions hold a prominent place in the implementing mechanism of the OECD anti-corruption standards at the domestic level. It provides for the following: – in order to implement the provisions of Paragraph 3 Article 4 of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the General Prosecutor’s Office of the Russian Federation is the agency which is responsible for holding consultations for defining of the most appropriate jurisdiction in order to prosecute offenses provided for by the Convention; – in order to implement the provisions of Article 9 of the Convention, the following agencies are responsible for rendering legal assistance in cases of offenses, provided for by the Convention, and also for communication regarding corresponding issues: the Ministry of Justice of the Russian Federation are responsible for civil matters, including civil aspects of criminal cases regarding offenses provided for by the Convention; the General Prosecutor’s Office of the Russian Federation is responsible for all other issues, including the issues of legal assistance with regard to cases on administrative offenses of juridical persons, provided for by the Convention; – in order to implement provisions of Article 10 of the Convention, the General Prosecutor’s Office of the Russian Federation is the agency responsible for forwarding requests about the criminal extradition from a foreign state to the Russian Federation in connection with offenses provided for by the Convention, for criminal extradition of foreign residents or stateless persons from the territory of the Russian Federation to a foreign country in connection with offenses provided for by the Convention, as well as for maintaining contacts on these issues.

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At the same time, alongside with the self-enforceable provisions the Agreement contains norms, which provide for the introduction of amendments to the national legislation of the member states. Thus, an important provision is formalized under Article 9 Cooperation on Unification of Laws, whereunder parties cooperate in order to unify legislation which regulates the issues of combating corruption, as well as to introduce anti-corruption standards, i.e. to establish for a corresponding sphere the legal regulation of the unified system of prohibitions, restrictions and permissions, securing the prevention of corruption in this field. Generally, all anti-corruption international obligations adopted by the Russian Federation are backed by domestic legal acts1. However, this fact does not mean that legislative anti-corruption securing has stopped in its development. Regulating anti-corruption legislation in order to adapt to a greater extent international anti-corruption standards on the grounds of the critical analysis is very dynamic. There continues «the clearance» of laws from norms, which are not consistent among themselves, which lead to legal uncertainty, from ineffective and obsolete provisions of law, legal conflicts and loopholes. All these facts are indicative of a real motivation of the Russian Federation not only to take full advantage of huge international legal resources on combating corruption, but also to form a unified harmonized system of the regulatory legal acts, based on analysis of the results of the research and the diagnosis of corruption as a complicated antisocial phenomenon. Of course, the systematization of anti-corruption laws and its improvement shall be supported by conventional legal traditions and culture of our country. This fact corresponds to the international legal approaches to the anti-corruption policy of states (Paragraph 2 Article 64 of the UN Convention against Corruption), which permit states to use more strict measures than the ones provided by international law for prevention of corruption and combating it.

1

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Currently, federal anti-corruption legislation includes six federal acts. Over 8 legislative acts which amended acts in force have been adopted for the period since the adoption of the implementing legislation. Besides, 16 Russian Federation Presidential Decrees, 4 government resolutions and over 740 regulatory legal acts of ministries, government agencies and corporations are in force.

§ 2. Legislation of the Russian Federation on counteracting corruption...

§ 2. LEGISLATION OF THE RUSSIAN FEDERATION ON COUNTERACTING CORRUPTION: A SYSTEM-FORMAT APPROACH

In our country, regulatory legal registration of anti-corruption measures is one of the focus areas of legislation and it goes back to the end of the last century. A starting point is the enactment of Decree dated April 4, 1992 No. 361 On Combating Corruption in System of Civil Service and Decree dated April 8, 1997 No. 305 On Immediate Measures to Prevent Corruption and Budget Cuts When Organizing Purchasing Goods for State Needs by the first President of the Russian Federation1. Those regulatory legal acts provided for prohibition of doing business by civil servants, they also defined the system of certification and obligatory submission of tax and real and personal property declarations by civil servants upon their appointment to executive positions, the procedure and regulations of the organization of competitive tendering for purchasing goods, works and services. Later these provisions became the basis for Federal Law dated July 31, 1995 No. 119-FZ On Fundamentals of Public Service in the Russian Federation (became void in 2004)2, which stated a number of anti-corruption restrictions for civil servants, as well as it bound them to submit annual information about assets and income which are subject to tax to internal revenue authorities. The actual implementation of anti-corruption policy both at the regulatory level and within the framework of individual articles on civil service has begun from the administrative reform in the Russian Federation and its activity plan approved by the Government Executive Order of the Russian Federation dated October 25, 2005 No. 1789-r, regulations on the necessity of suppressing corruption which were stated in the Conception. Herewith, it was treated as a result of excessive bureaucratic administration in Federal agencies of executive authority and executive government body of the constituent entity of the Russian Federation. The specified objective was expected to be reached by means of establishing anti-corruption arrangements for government affairs with high corruption risk, implementing anti1

Official Gazette of the Russian Federation. 1997. No. 15. Art. 1756.

2

Official Gazette of the Russian Federation. 1995. No. 31. Art. 299.

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corruption expert examination, creating methodic bases of estimating conditions for corruption of state functions, working out departmental and local anti-corruption programs, depersonalization of cooperation of civil servants with citizens and organizations, etc.1 Since 2008, after the adoption of a number of the anti-corruption documents containing programs of action (plans and strategies), defining main trends in state anti-corruption policy and at the same time expressing the implementation of corresponding obligations by the Russian Federation after the ratification of the UN Convention against Corruption and the Council of Europe Criminal Law Convention on Corruption in 2006, combating corruption has acquired an extra pulse. At the same time, it should be noted that the process of elaboration and development of anti-corruption regulatory legal acts has started in the absence of scientific and theoretical conception, that subsequently contributed to various errors of judgment, causing problems in law enforcement practice. Measures necessary for legislative securing of combating corruption are entrenched in the first place in the systemically important Law on Combating Corruption, which introduces the concept and elements of corruption, the main principles of combating this antisocial phenomenon, legal and framework arrangements for its prevention, priorities of state agencies in order to improve the effectiveness of combating corruption. Besides, a number of substatutory legal acts (Decrees of the President of the Russian Federation2 and Russian Federation Government Resolutions3, regulatory legal acts of federal 1

For details, see: Administrative reform in Russia: scientific and practical guide/ edited by S.Ye. Naryshkin, Т.Ya. Khabrieva. М., 2006.

2

See: Russian Federation Presidential Decrees: No. 297 dated March 13, 2012 On the National Plan of Counteraction of Corruption for 2012-2013; No. 309 dated April 2, 2013 On Measures for Implementation of Individual Provisions of the Federal Law On Combating Corruption; No. 310 dated April 2, 2013 On Measures for Implementation of Certain Provisions of the Federal Law On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons, No. 613 dated July 8, 2013 On Anti-Corruption Issues; No. 657 dated May 20, 2011 On the Law Enforcement Monitoring in the Russian Federation and others.

3

Russian Federation Government Resolutions No. 96 dated February 26, 2010 On Anti-Corruption Expertise of Regulatory Legal Acts and Draft Regulatory Legal Acts (including the Rules of conducting anti-corruption expertise of regulatory legal acts and draft regulatory legal acts, the methodology for conducting anticorruption expertise of regulatory legal acts and draft regulatory legal acts), No. 389 dated April 30, 2009 On Measures to Improve the Legislative Activities of the Government of the Russian Federation», No. 694 dated August 19, 2011 On Approval of Methodology to Law Enforcement Monitoring and others.

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agencies of executive authority) were adopted. Thus, in a very short time the anti-corruption legislation has been created, which not only meets the requirements of international anti-corruption standards, but it is also equal to the best foreign legislative practices. Nevertheless, it was impossible to avoid completely the shortages of legal regulation. In particular, there is no consistent and well-knit strategy for the definition of corruption offense and its classifying characteristics. The correlation of this concept with such concepts as «corruption-related crime»1, «corruption offense» and «offenses providing condition for corruption» are not defined. A significant problem is the implementation of Article 13.3 of the Law on Combating Corruption, which imposes the duty of adopting measures for corruption prevention on organizations and includes elements of anti-corruption standard for organizations. However, the criteria for differentiation of the mentioned standards for different organizations are not statuary prescribed. It appears that these standards can be differentiated depending upon availability or absence of state funding, the size of agency and the professional sphere of activities taking into account objective possibilities of their application. The significant role in the development of the state anti-corruption policy and in the arrangement of corresponding activities is given to the acts of the President of the Russian Federation, by which national anti-corruption plans are ratified2. These acts should be considered as the most significant binding documents, giving consistent character to activities on counteracting corruption. This legal analysis indicates that a number of efficient anticorruption measures have been implemented over the last years: 1

The concept of «corruption-related crime» is introduced at the official level (see, in particular, order of the General Prosecutor’s Office of the Russian Federation No. 65/11, Ministry of Internal Affairs of the Russian Federation No. 1 dated February 1, 2016 On Bringing into Force the List of Articles of the Criminal Code of the Russian Federation Which Are Used for Statistical Report Preparation).

2

See: National Anti-Corruption Plan (approved by the President of the Russian Federation on July 31, 2008 No. Pr-1568); Decrees of the President of the Russian Federation dated April 13, 2010 No. 460 On the National Anti-Corruption Strategy and the National Anti-Corruption Plan for 2010–2011; Decree dated March 13, 2012 No. 297 On the National Anti-Corruption Plan for 2012– 2013 and Amendments to Some Acts of the President of the Russian Federation on Combating Corruption; Decree dated April 11, 2014 No. 226 On the National Anti-Corruption Plan for 2014– 2015; Decree dated April 1, 2016 No, 147 On the National Anti-Corruption Plan for 2016–2017// Official Gazette of the Russian Federation. 2016. No. 14. Art. 1985.

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– income and expenditures of public officials were put under control; – the ban was introduced for certain persons to open and operate accounts (deposits), to store cash and valuables in foreign banks located outside the Russian Federation, to own or/and use foreign financial instruments; – the duty is specified for civil servants and other persons to inform about requests containing inducement to corruption; – mechanisms for prevention and settlement of conflict of interests were improved. Because of the fact that generally the anti-corruption legislation is a legal institution which is emerging mainly within the framework of the administrative legislation, three stages can be distinguished in the development of the corresponding legal unit, where particular regulatory legal acts have paramount importance. At the first stage, the anti-corruption legal regulation was based mainly on the substatutory regulatory legal acts, which were adopted within the framework of implementation of the Concept of the administrative reform in the Russian Federation in 2006–2010. Special laws dedicated to certain aspects of creating legal anticorruption bases were adopted at the second stage, i.e. Federal Laws dated May 7, 2013 No. 79-FZ On the Prohibition of Certain Categories of Persons to Open and Operate Accounts (Deposits), to Store Cash and Valuables in Foreign Banks Located Outside the Russian Federation, to Own and (or) Use Foreign Financial Instruments; Federal Law dated December 3, 2012 No. 230-FZ On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons; Federal Law dated December 3, 2012 No. 231-FZ On Amendments to Certain Legislative Acts of the Russian Federation in Connection with Adoption of the Federal Law On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons; Federal Law dated November 21, 2011 No. 329-FZ On Introducing Amendments to Certain Legislative Acts of the Russian Federation Associated with the Improvement of State Administration in the Field of Combating Corruption and others. The third stage of the development of anti-corruption legislation is characterized by a gradual increase in the range of substatutory regulatory legal acts, which are aimed at the specification of certain 92

§ 2. Legislation of the Russian Federation on counteracting corruption...

provisions of the above-mentioned laws and creation of practical mechanisms for their implementation. As a relevant example, we should mention the Federal Law dated October 5, 2015 No. 285-FZ On Amendments to Certain Legislative Acts of the Russian Federation Regarding the Establishment of Obligations of Persons Holding Public Office and Other Persons to Report the Occurrence of SelfInterest, Which Results or May Result in a Conflict of Interest, and Take Measures to Prevent or Resolve Conflict of Interest1. The improvement changes of the corresponding legal regulation gave the opportunity to expand the concept of a conflict of interest and self-interest, pointing at a non-financial bribe, as well as at a possible substantial cut of personal expenses of a public official, his/her exemption from material expenses. Now the self-interest of a public official is also connected with interests of citizens or organizations, with which a public official and (or) his/her close and legal relatives are connected by property, corporative or other close relations. Alongside with the federal laws, a package of Decrees of the President of the Russian Federation was adopted, which were directly aimed at the implementation of laws and regulated the procedure of giving information about income, assets and liabilities, about the validity check of the given information and about the improvement of anti-corruption measures2. The analysis of their content allows for the conclusion that the system of anti-corruption measures, which are the result of their adoption are in constant movement. Herewith, a systematic analysis of law enforcement practice is carried out and the optimization of anti-corruption measures is held on its basis. Although enough time has passed from the date of the adoption of the Law, national anti-corruption legislation is still characterized by a considerable number of «scrappy», multisectoral regulatory legal acts, which have different legal force and different subject of legal 1

Official Gazette of the Russian Federation. 2015. No. 41 (p. II). Art. 5639.

2

E.g., see: Decrees of the President of the Russian Federation dated March 8, 2015 No. 120 On Some Issues of Combating Corruption // Official Gazette of the Russian Federation. 2015. No. 10. Art. 1506; dated April 2, 2013 No. 309 On Measures to Implement Certain Provisions of the Federal Law On Combating Corruption // Official Gazette of the Russian Federation. 2013. No. 14. Art. 1670; dated April 2, 2013 No. 310 On Measures to Implement Certain Provisions of the Federal Law On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons // Official Gazette of the Russian Federation. 2013. No. 14. Art. 1671.

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regulation, and thus it is inconsistent. The condition for the creation of a uniform consistent system of regulatory legal acts in this sphere is the regulation of anti-corruption legislation, which grows rapidly. The specified systematization will not only provide for completeness and uniformity in the regulation of social relations, but also it will give the opportunity to feel confident in the legislation and immediately find necessary norms and forms of reaction. In juridical science, there are the following types of systematization of legislation: record of regulatory legal acts, incorporation, consolidation and codification. As regards the possible codification of anti-corruption legislation, it should be noted that it consists in fundamental revision, alteration and renewal of legal norms and in the adoption of a new act of codification – law-book, code of laws, fundamental principles of legislation, statute and so on. The idea to adopt an anti-corruption code or fundamental principles of legislation on combating corruption, which will be at the top of the system of interdependent regulatory acts and substitute former regulation resulting in its unification, is unlikely to be implemented taking into account the diversity of social relations which are the subject of its regulation. Because of the fact that the subject of codification is defined depending on the division of legislative system into branches, sub-branches and institutes, the absence of an independent subject and procedure of legal regulation renders the development of a separate branch of anti-corruption law impossible. The adoption of codified acts on combating corruption is also uncommon for foreign countries. There are no anti-corruption codes or codes on combating corruption in Australia, Great Britain, Germany, the USA, France, and Switzerland. According to international practices anti-corruption legislation is applicable in conjunction with other acts, which are not formally related to corruption offenses, what provides for the possibility to counteract corruption effectively1. 1

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For example, in the USA anti-corruption activities are legislatively implemented by way of: provisions of Chapter 11 Section 18 of the United States Code «Bribery, commercial bribery, and conflicts of interest»; Racketeer Influenced and Corrupt Organizations Act or RICO Act, which is included as Chapter 96 in Section 18 of the United States Code; Foreign Corrupt Practices Act of 1977 – FCPA; Foreign Agents Registration Act of 1938, FARA; other separate acts which often don’t interact with each other on material and procedural constituents. Unlike the Russian Federation, the USA has

§ 2. Legislation of the Russian Federation on counteracting corruption...

Taking into account active domestic rule-making in the field of counteracting corruption and numerous regulatory legal acts, we believe that the most efficient form of systematization of anticorruption legislation can be its consolidation through creation of special «blocks», which are combined and unified according to the same subject of regulation. It is obvious that only regulatory directions of equal legal effect must be subject to unification. Taking into consideration the fact that acts of the President of the Russian Federation, the Government of the Russian Federation, ministries, government agencies and state corporations are the basis for provisions of numerous federal acts, the consolidation of anticorruption legislation is possible through the deletion of provisions which serve as preconditions for substatutory rule-making. Another possibility to cut the corresponding regulatory legal material consists in the revision of a long-established model of anticorruption department rule-making, when each federal government agency passes a number of acts (on giving information about income, property, expenditures of civil servants and on controlling this information, on commissions for compliance with the requirements for civil servants behavior and preventing conflicts of interest), which duplicate the provisions of the corresponding Russian Federation Presidential Decrees and Resolutions of the Government of the Russian Federation. In the circumstances concerned, it seems appropriate to elaborate a number of provisions, ratified by the Russian Federation Presidential Decrees and Resolutions of the Government of the Russian Federation, by expanding their direct effect to the system of federal government agencies without passing department acts. started to apply Foreign Corrupt Practices Act much later than the act officially went into effect. Thus, up to a certain point FCPA belonged to «dormant acts». There is a similar approach in Great Britain, where a short Law on Bribery dated 2010 is construed and applied in the existing system of regulatory activities, which defines, for example, the conception of confidential relation between an employee and an employer, that provides an opportunity to hold individuals liable for using their position although they don’t cause formal damage to an employer, what is the violation of confidential relations. In Germany combating corruption is subject to the regulations under Chapter 30 of the Criminal Code of the Federal Republic of Germany («Service crimes» – § 331 and the following) and the 1998 Bribery Act. There is no codified act in this field of combating. In the former Soviet Union states, there aren’t anti-corruption codes either, and the legal regulation of combating corruption is applied through special legislative acts and sublegislative regulatory legal acts.

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In our opinion, the consolidation, being one of the priority objectives for regulation and improvement of the Russian anti-corruption legislation and aiming at the unification of scores of separate regulatory directions, will cope with the task of systematization of the anti-corruption legislation1. Attention should also be paid to such an important aspect as an extraterritorial application of provisions of the anti-corruption legislation. The research of development trends of foreign anticorruption legislation lets us anticipate a possible conflict of jurisdictions because of the extraterritorial application of law provisions of different countries. In the Russian Federation the components of bribery on behalf of a juridical person are weaker than the corresponding norms in the foreign legislations, in which such norms are applicable beyond their borders, because they comprise only actions committed on the territory of our country. At the present stage, in the Russian Federation, a central focus is made to the improvement of anti-corruption mechanisms with regard to their application practice, that is why the following advanced tendencies of legislative development can be anticipated: – the improvement of legal bases and structural arrangements for prevention and detection of conflicts of interest; – the improvement of legal arrangements for control over individual costs and forfeiture to the State of the property in relation to which there is no information about its purchase with lawful income, provided by the Federal Law On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons; – the improvement of anti-corruption effectiveness in federal executive authorities and in state agencies of the constituent entities of the Russian Federation; – the expansion of anti-corruption legislative potential on central and local government procurement of goods, works and services;

1

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In order to implement the consolidation of the anti-corruption legislation, it is necessary to join the efforts of major law centers of the country that will allow advancing this process. Methodological support of this work can be imposed on the Institute of Legislation and Comparative Law under the Government of the Russian Federation.

§ 3. Legislation of the constituent entities of the Russian Federation...

– providing a legislative framework for anti-corruption ethical and moral standards, which will orient towards the adherence to bans, restrictions and requirements as specified in order to counteract corruption; – the improvement of legal arrangements of international cooperation in order to detect, attach and return from a foreign jurisdiction assets resulting from corruption-related crimes; – giving extraterritorial character to anti-corruption norms; – normative consolidation of outreach and educational measures. § 3. LEGISLATION OF THE CONSTITUENT ENTITIES OF THE RUSSIAN FEDERATION AND MUNICIPAL LEGAL ACTS AS THE ELEMENTS OF THE LEGAL SYSTEM RELATING TO COMBATING CORRUPTION

The legal system relating to combating corruption consists of legislative and other regulatory legal acts of federal importance, laws and regulatory legal acts of the constituent entities of the Russian Federation, and local regulatory legal acts. This approach to the regulation of anti-corruption relations results from the division of jurisdictions and powers between the Russian Federation and the constituent entities of the Russian Federation which is specified by the Constitution of the Russian Federation, as well as from the definition in the Federal legislation of the local issues of municipal units1. The provisions of the National strategy give the following recommendations to public authorities of the constituent entities of the Russian Federation: to take meaningful measures aimed at 1

According to the Constitution of the Russian Federation (Paragraph «b» Part 1 Article 72), the coordination of issues to ensure legitimateness and order is in the joint competence of the Russian Federation and its constituent entities. Being the framework for counteracting corruption, the administrative legislation is also in the joint competence (Paragraph «k» Part 1 Article 72). Federal laws, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation resulting from them are issued according to this competence (Part 2 Article 76 of the Constitution of the Russian Federation). The above mentioned constitutional provisions with regard to the division of jurisdictions and powers between the Federal State governmental authorities and the bodies of state power of the constituent entities of the Russian Federation were taken into consideration while developing the Law on Combating Corruption, which included local issues concerning counteracting corruption resulting from the provisions of Federal Law No. 131-FZ dated October 6, 2003 Concerning the General Principles of the Organization of Local Government in the Russian Federation.

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prevention and settlement of conflict of interest in public service; to arrange monitoring of compliance with the actions provided by anti-corruption plans; to secure strengthening of the anticorruption aspect while organizing occupational retraining, raising of qualification or work placements of civil servants; to cooperate with mass media on issues concerning heavy coverage of anti-corruption measures, which are taken by the corresponding federal executive authorities, other state agencies and so on. It is important to note the attitude of the Supreme Court of the Russian Federation, which was defined under Decision No. 55-G10–5 dated September 22, 20101, where it was stated that such spheres of legal regulation as government property of a constituent entity of the Russian Federation and its control, budget of a constituent entity of the Russian Federation, regional taxes and charges, public service of a constituent entity of the Russian Federation are out of control of the Russian Federation and out of authority of the Russian Federation regarding joint competence. In this regard, the anti-corruption standards can be established in the spheres mentioned above only by a constituent entity of the Russian Federation. The regulatory content of the concept «counteracting corruption» comprises various forms of activity: corruption prevention (its prevention, detection and subsequent elimination of its causes); combating corruption (detection, prevention, suppression, exposure and investigation of corruption offenses); minimization and (or) mitigation of consequences of corruption offenses. However, some of the listed forms of activity are exclusively related to power and authority of public authorities of the Russian Federation (for example, detection, prevention, suppression, exposure and investigation of corruption offenses, and also prosecution for corruption offenses) and they can’t be regulated by the legislation of the constituent entities. The anti-corruption competence of public authorities of the constituent entities of the Russian Federation basically comprises preventive power and authority, on the contrary, the suppression of corruption offenses is not their subject of regulation. Currently, there are legal frameworks for combating corruption nearly in all constituent entities of the Russian Federation. The 1

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§ 3. Legislation of the constituent entities of the Russian Federation...

key position in them is held by special laws1. There has not been such a law in Moscow for a long time – initially Moscow agencies of legislative power have opted for introduction of amendments to different legislative acts dealing with the issues of combating corruption. However, considering the fact that adoption of a special law promotes the system approach to the development of local law, in 2014, this constituent entity of the Russian Federation adopted the corresponding law for legal regulation of anti-corruption relations2. Besides, the legal framework for combating corruption consists of a large number of norms contained in legal acts regulating the issues of the public service, the municipal service, the status of certain state agencies of the constituent entities of the Russian Federation, ensuring legislative activity and others.3 The abovementioned legislation has a strategic importance for formation and implementation of the national anti-corruption policy at the level of constituent entities of the Russian Federation. The analysis of the legal framework of the constituent entities of the Russian Federation indicates that some of them have simultaneously several acts with the same subject of regulation. For example, the legislation of the Lipetsk region, where there are two acts similar in the subject of regulation4. The similar situation can be

1

E.g., see: Law of the Moscow Region No. 31/2009-ОZ dated April 10, 2009 On Measures for Combating Corruption in the Moscow Region // Ezhednevnye Novosti. The Moscow region. 2009. No. 76; Law of the Primorye Territory No. 387-КZ dated March 10, 2009 On Combating Corruption in the Primorye Territory // Bulletin of the Primorye Territory Legislative Assembly. 2009. No. 104.

2

See: Law of Moscow dated December 17, 2014 No. 64 On Measures for Combating Corruption in Moscow // Bulletin of the Moscow State Duma. 2015. No. 1 p. 387.

3

E.g., see: Law of the Tyumen Region No. 54 dated September 28, 2011 On the Accounts Chamber of the Tyumen Region // Bulletin of the Tyumen Region Duma. 2011. No. 8. P. 2; Law of the Sverdlovsk Region No. 72-ОZ dated October 18, 2010 On Human Rights Ombudsman in the Sverdlovsk Region // The Official Gazette of the Sverdlovsk Region. 2010. No. 10-8. Art. 1510; Law of the Altai Territory No. 122-ZS dated November 9, 2006 On Legislative Activity // The Official Gazette of the Altai Territory. 2006. No. 127. P. 2. P. 157; Law of the Primorye Territory No. 808-КZ dated September 7, 2011 The Code of Conduct and Official Behavior for Civil Servants of the Primorye Territory // Bulletin of the Primorye Territory Legislative Assembly. 2011. No. 199.

4

See: Law No. 193-OZ dated October 7, 2008 On Preventing corruption in the Lipetsk Region // Lipetskaya Gazeta. 2008. No. 202 and Law No. 476-ОZ dated December 15, 2015 On Legal Regulation of Certain Issues Concerning the Prevention of Corruption Offenses in the Lipetsk Region // Lipetskaya Gazeta. 2015. No. 248.

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seen in other constituent entities of the Russian Federation1. At the same time, an excessive subdivision of the legislative block does not contribute to the improvement of legal regulation effectiveness, but on the contrary, it complicates the possibilities of law enforcement. Anti-corruption measures include the implementation of expertise of regulatory legal acts (and their draft laws) of the constituent entities of the Russian Federation. The regulation of this expertise procedure is generally implemented by certain norms of the laws on combating corruption of the constituent entities of the Russian Federation and by special Federal Law No. 172-FZ dated July 17, 2009 On Anti-Corruption Expertise of Regulatory Legal Acts and Draft Regulatory Legal Acts2, that meets the requirements of the constituent entities of the Russian Federation for the legislative solution of the issues referred to. In this connection special laws on anti-corruption expertise are adopted only in two constituent entities of the Russian Federation3. The main scope of the anti-corruption expertise regulation accrues to the substatutory acts – resolutions of legislative (representative) state authorities, acts of senior government officials or supreme executive state authorities, other executive authorities of the constituent entities of the Russian Federation4. Moreover, in 1

Thus, in Saint Petersburg together with Law No. 674-122 dated November 14, 2008 On Additional Measures to Combat Corruption in Saint Petersburg (Bulletin of Saint Petersburg. 2008. No. 224), Law No. 504-118 dated October 20, 2010 On Measures to Implement Article 12 of the Federal Law On Combating Corruption was adopted (Bulletin of Saint Petersburg. 2010. No. 209). Herewith, the latter contains only two articles, one of which establishes the date of its entry into force, and the other in the subject of regulation stays within the Law of Saint Petersburg On Additional Measures to Combat Corruption in Saint-Petersburg.

2

Official Gazette of the Russian Federation. 2009. No. 29. Art. 3609.

3

E.g., see: Law of the Ryazan Region No. 175-ОZ dated December 28, 2009 On Anti-Corruption Expertise of Draft Laws and Regulations of the Ryazan Region and Legal Acts of the Ryazan Region (together with the Provision on the accreditation of independent experts implementing the expertise of draft laws and regulations of the Ryazan Region and legal acts of the Ryazan Region for corruptogenicity) // Ryazan Bulletin. 2009. No. 264–265; Law of the Murmansk Region No. 1154-01-ZМО dated November 23, 2009 On Anti-Corruption Expertise of Regulatory Legal Acts and Draft Regulatory Legal Acts in the Murmansk Region and on Amendments to the Law of the Murmansk region On Combating Corruption in the Murmansk Region // Bulletin of Murmansk Region Duma. 2010. No. 102. P. 43–46.

4

E.g., see: Resolution of the Arkhangelsk Region Council of Deputies No. 126 dated May 20, 2009 On Approval of the Provision on the Procedure for the Anti-Corruption Expertise of Regulatory Legal Acts of the Arkhangelsk Region and Draft Regulatory Legal Acts of the Arkhangelsk Region by the Arkhangelsk Region Council of Deputies // Bulletin of the 5th Arkhangelsk Region Council of Deputies. 2009. No. 3; Resolution of the Governor of the Moscow Region No. 193-PG dated

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the constituent entities of the Russian Federation there are usually a number of substatutory regulatory legal acts in force regulating the issues of the anti-corruption expertise implementation by different public authorities, that results in plurality of regulatory legal acts in the same field1 and their significant cross-duplication. There is an essential block of legal norms related to combating corruption in the legislation on public service and municipal service of the constituent entities of the Russian Federation. The corresponding provisions find their further development in substatutory acts of the constituent entities of the Russian Federation. Thus, on the basis of the norms referred to, it’s planned to implement activities connected with running validity and completeness checks of information on income, expenses, property and property obligations, submitted by citizens competing for positions in civil and municipal service, by civil and municipal servants, due diligence of bans, responsibilities and requirements by civil and municipal servants established in civil and municipal service, as well as the approval procedure of the list of offices of civil service in the executive authorities of the constituent entities of the Russian Federation is defined, in case of substitution of which civil servants are prohibited to open and operate accounts (deposits), to store cash and valuables in foreign banks, located outside the territory of the Russian Federation, to own and (or) use foreign August 14, 2013 On Approval of the Procedure for the Anti-Corruption Expertise of Regulatory Legal Acts Adopted by Executive Authorities of the Moscow Region, Public Authorities of the Moscow Region, and Their Drafts // Informational Journal of the Moscow Region Government. 2013. No. 13; Resolution of the Tyumen Region Government No. 42-p dated February 11, 2008 On Approval of the Procedure for the Anti-Corruption Expertise of Draft Regulatory Legal Acts of the Tyumen Region (together with the Procedure for the anti-corruption expertise of draft regulatory legal acts of the Tyumen region and other documents in order to detect provisions promoting the arrangement of conditions for corruption)// The collection of the decrees, orders of the Governor of the Tyumen Region, the Tyumen Region Government. 2008. February. 1

Thus, in Moscow together with Resolution of the Moscow Government No. 513-PP dated June 2, 2009 On the Anti-Corruption Expertise of Draft Legal Acts of Executive Authorities and Executive Public Officials of the City of Moscow (Journal of the Moscow Mayor and Moscow Government. 2009. No. 34), there are Resolution of the Moscow Department of Trade and Services No. 390 dated November 24, 2009 On the Implementation in the Moscow Department of Trade and Services of the Anti-Corruption Expertise of Draft Regulatory Legal Acts of the City of Moscow and Draft Orders of the Department, Resolution of the Moscow City Architecture Committee No. 120 dated July 13, 2015 On the Anti-Corruption Expertise of Draft Legal Acts (together with the Rules for the implementation of the anti-corruption expertise of draft legal acts of the Moscow City Architecture Committee, the Procedure for the implementation of the independent anti-corruption expertise of draft regulatory legal acts of the Moscow Mayor and Moscow Government, which are prepared by the Moscow City Architecture Committee) and others in force.

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financial instruments. An independent group of norms is comprised of norms introducing the notification procedure of a representative of a hirer about the facts of induction of the state civil servant to commit corruption offenses. Besides, anti-corruption norms of the legislation of the constituent entities of the Russian Federation regulate the issues concerning the implementation of measures for detection and elimination of causes and conditions contributing to conflict of interest in the state civil and in municipal service, the support of activities of the commissions for ensuring compliance with the requirements to official behavior of state civil and municipal servants and settlement of the conflict of interests, and other issues connected with the prevention and suppression of corruption in the state civil and municipal service. At the same time, it is necessary to note that legislative provisions of the constituent entities of the Russian Federation concerning combating corruption in the system of the state civil and municipal service to a large extent have derivative character from the corresponding federal regulations – the legislation of the constituent entities of the Russian Federation has almost no special innovations in this field. The problem is that some constituent entities have excessively fragmented legislation on public service, and this fact infringes systematic approaches to combating corruption1. The peculiarity of legal anti-corruption regulation at the level of the constituent entities of the Russian Federation is a great number of substatutory regulatory legal acts, which are available on the legal framework applied for the regulation of anti-corruption relations2. At large, it has an external nature; and it is caused by the use of numerous administrative procedures. It is also connected with the creation of the system of departmental anti-corruption policy at the state level. Departmental regulatory legal acts usually have organizational and legal nature: they regulate the development and 1

Thus, some constituent entities of the Russian Federation have 5-7 laws (for example, in the Republic of Khakassia, the Krasnoyarsk Territory, the Kaliningrad Region). The majority of them, nine, were adopted in the Vologda Region.

2

They include acts on creation and status regulation of various advisory agencies in the field of combating corruption; regulations on the commissions dealing with the issues concerning combating corruption, compliance with the requirements for official behavior of state or municipal servants and settlement of conflict of interest; regulations on implementation of the anti-corruption expertise of regulatory legal acts, anti-corruption monitoring and other.

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§ 3. Legislation of the constituent entities of the Russian Federation...

operation of the specialized departmental structures (anti-corruption commissions (committees) or commissions on the implementation of the anti-corruption policy), specify their personal composition, approve departmental anti-corruption programs and plans, establish their implementation arrangements. They are mostly comprised of departmental orders, regulating certain issues concerning the implementation of the anti-corruption policy. The analysis shows that the anti-corruption legal framework in the constituent entities of the Russian Federation is oriented towards implementation of the standards provided by the federal legislation. The measures undertaken at the level of the constituent entities of the Russian Federation are interrelated with the system of the anti-corruption measures stated in the National strategy and in the plans for combating corruption. All of this makes it possible to state a consistent trend towards the development of a complex independent direction of the state regional anti-corruption policy. In order to control the implementation of the legislation at the level of the constituent entities of the Russian Federation there is a constant monitoring of the condition and effectiveness of combating corruption (the anti-corruption monitoring). It is implemented by the state agencies of the constituent entities of the Russian Federation in order to ensure continuous monitoring for implementation of the measures aimed at the prevention of corruption and the actions aimed at elimination of causes and conditions promoting corruption offenses. The procedure of the anti-corruption monitoring is usually regulated by the principal official of the constituent entity of the Russian Federation (the chief of the supreme government body)1. Thanks to monitoring there is an early detection and forecasting of the negative process development affecting the level of corruption in the state agencies of the constituent entities of the Russian Federation, as well as correlation of the action plans aimed at combating corruption at the state level is arranged. Although there is a legal anti-corruption framework in the constituent entities of the Russian Federation, the analysis of the 1

E.g., see: Decree of the Governor of the Sverdlovsk Region No. 971-UG dated November 3, 2010 On Monitoring of the Condition and Effectiveness of Combating Corruption (the Anti-Corruption Monitoring) in the Sverdlovsk Region // Official Gazette of the Sverdlovsk Region. 2011. No. 11-3 (2010). Art. 1827.

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state legal anti-corruption framework conducted by the Institute of Legislation and Comparative Law under the Government of the Russian Federation has detected the following disadvantages characterizing its present condition: an insufficiently expressed dominant idea of the federal legislation influence in some regions showing itself in some cases in the disregard for the principle of compliance of the regional regulatory legal acts with the federal legislation: a definition of concepts, categories inconsistent with the federal legislation; an uncertain definition of the anti-corruption measures, directions, principles; the contravention of the principle of delineation of powers between the public authorities of the Russian Federation, the constituent entities of the Russian Federation and municipal units; the maintenance of too general declaratory regulations unsupported by a particular implementation mechanism in the regulatory legal acts of the constituent entities of the Russian Federation; an excessive duplication of the federal legislation in the context of insufficient accounting for regional peculiarities; the insufficiency of a consistent integrated approach to the development of the state legislation. Besides, there are also such problems as inconsistence of the norms of different regulatory legal acts, in which measures aimed at combating corruption are established, as well as non-compliance with the deadlines by the constituent entities of the Russian Federation for making laws consistent with the federal law1. The above-mentioned problems reduce significantly the effectiveness of the state legislation in the field of combating corruption. The attention should be paid to the fact that estimation results of the anti-corruption legal base formed in the constituent entities of the Russian Federation similar to the above mentioned have been later submitted by the Ministry of Justice of the Russian Federation2. 1

For details, see: Andritchenko L.V., Т.Ya. Khabrieva, А.М. Tsirin. On analysis results of the implementation practice of programs for counteraction against corruption in the constituent entities of the Russian Federation and on proposals on improvement of their efficiency // Journal of Russian Law. 2012. No. 11. P. 58–67; Andritchenko L.V., Plyugina I.V. Regulatory and institutional framework for combating corruption in the constituent entities of the Russian Federation // Combating corruption in the constituent entities of the Russian Federation: research and practice guide / Andritchenko L.V, O.A. Belyaeva, V.I. Vasiliev et al.; edited by Т.Ya. Khabrieva. М.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2013. P. 15–32.

2

For details, see § 2 Ch. 1 of this monograph.

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The arrangements for implementation of open accounting of the state authorities are still underdeveloped. The regulation of the preventive measures is aimed in a greater degree at their implementation within the frame of internal control, i.e. within the state authority, that reduces effectiveness of the prevention. Not all constituent entities of the Russian Federation have a practical mechanism of social control playing an essential role in the set of common social measures concerning the prevention of corruption. The potential of independent experts is not used as far as it is necessary. There are no methodologies for the assessment of efficiency of inner systems for detection and prevention of corruption risks in the state authorities of the constituent entities of the Russian Federation and the local authorities of municipal units. Not all constituent entities have adopted acts establishing the rating system of performance assessment of the organizational structure elements related to combating corruption in the constituent entity of the Russian Federation (the system of criteria or program indicators). Slowly and only in certain regions (for example, in the Republic of Tatarstan) the standards of anti-corruption behavior for civil servants are established at the level of departmental regulatory legal acts1. However, the corresponding arrangements scarcely find securing in regional anti-corruption plans and programs. We believe that the system approach to development of the anticorruption legislation, directed against the factors contributing to creation of favorable conditions for corruption, demands closer attention to development of the data base concerning the zones of higher corruption risk in the constituent entities of the Russian Federation, as it is done, for example, in the Ministry of Healthcare of the Ulyanovsk Region. In this case, the empiric base will be a consistent monitoring of a public opinion on the condition of law making and law enforcement activities in the field of implementation of anti-corruption measures in the constituent entities of the Russian Federation for the benefit of the law-abiding majority of the society. The legislative improvement in the constituent entities of the Russian Federation is determined by the objectives to overcome the 1

E.g., see: Standard of anti-corruption behavior for a civil servant of the Ministry of Justice of the Republic of Tatarstan No. K-1/03-OZ dated January 3, 2012 // Official web portal of the Government of the Republic of Tatarstan: URL: http://minjust.tatarstan.ru/rus/info.php?id=399207

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above-mentioned disadvantages and the necessity to make better use of the regional possibilities in solving anti-corruption problems. Besides federal and state legislation, the legal basis for combating corruption comprises, as mentioned above, municipal regulatory legal acts. Federal Law No. 131-FZ dated October 6, 2003 Concerning the General Principles of the Organization of Local Government in the Russian Federation1 establishes that the implementation of the measures aimed at combating corruption is a local issue of communities, municipal and urban districts. This fact presupposes not only a possibility, but also a necessity to adopt municipal regulatory legal acts. At the same time at the legislative level there are no clear norms specifying the powers of local authorities concerning the anticorruption regulation. Thus, municipal regulatory legal acts regulate the procedure for the expertise of municipal regulatory legal acts and their drafts in order to detect in them the provisions promoting the conditions for corruption2; they establish the list of offices of municipal service, in case of substitution of which or the appointment to which municipal civil servants must provide information about their income, property and property obligations and income, property and property obligations, as well as the income, property and property obligations of their spouse (wife) and minor children3, as well as the procedure for placing this information4; they establish the procedure for the 1

Official Gazette of the Russian Federation. 2003. No. 40. Art. 3822.

2

E.g., see: Resolution of the Administration of the City of Khabarovsk No. 3090 dated August 28, 2009 On Approval of the Procedure for the Expertise of Municipal Regulatory Legal Acts and Their Drafts in Order to Detect in Them the Provisions Promoting the Conditions for Corruption // Khabarovskie vesti. 2009. No. 96.

3

E.g., see: Order of the Administration of the City of Vladimir No. 341-r dated May 2, 2012 On Measures to Implement Certain Provisions of Federal Law No. 273-FZ dated December 25, 2008 On Combating Corruption // Periskop. 2012. No. 71.

4

E.g., see: Decision of the Council of People’s Deputies of the Alexandrovsky District No. 423 dated August 21, 2013 On Measures to Implement the Federal Law On Combating Corruption (along with the Procedure for checking validation and completeness of information on income, property and property obligations, submitted by municipal servants and persons substituting municipal offices implemented in the Council of People’s Deputies of the Alexandrovsky District, the Vladimir Region, the Procedure for the notification of the representative of the hirer (the employer) of appeal facts in order to induce a municipal servant, a person substituting a municipal servant office in the commission of corruption offenses, the procedure for their recording, the list of information contained in the notifications and the arrangement of their check, the Procedure for placing information about income, expenses, assets and liabilities of material nature of persons substituting municipal offices on a constant basis, municipal servants of the Council of People’s

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prevention and settlement of the conflict of interest on municipal service1. The issues concerning the procedure for prior notification of the fulfillment of other paid work by a municipal servant2 are regulated at the municipal level that is aimed at the prevention of the conflict of interest and the strengthening of the service discipline of municipal servants. For the same purposes there is an established procedure for the notification of the employer of appeal facts in order to induce a municipal servant to commit corruption offenses3; a procedure for the notification of the receipt of gifts in connection with official events, participation in which is related to the official status or performance of the official duties by the deputies of local representative authorities exercising the powers and authority on a constant basis; a procedure for delivery and evaluation of gift, its sale (redemption) and transfer of the proceeds from its sale4. In order to concentrate and locate the efforts aimed at combating corruption at the priority areas of the local authorities, many municipal units have approved the register of corruption-dangerous

Deputies of the Alexandrovsky District, their spouse (wife) and minor children on the official website of the administration of the Alexandrovsky District and providing this information to mass media for publication) // Alexandrovsky Golos Truda. 2013. No. 35. 1

E.g., see: Provision on the procedure for prevention and settlement of the conflict of interest in municipal service in the administration of the city of Tomsk, approved by Order of the administration of the city of Tomsk No. r250 dated March 24, 2009 // The document hasn’t been published. ConsultantPlus Legal Reference System.

2

E.g., see: Order of the Administration of the City of Tomsk No. r606 dated June 2, 2009 On Approval of the Provision on the Procedure for Prior Notification of the Fulfillment of Other Paid Work by a Municipal Servant to the Mayor of Tomsk // The document hasn’t been published. ConsultantPlus Legal Reference System.

3

E.g., see: Order of the Head of Ulyanovsk No. 28-R dated March 17, 2010 On Approval of the Procedure for the Notification of the Administration of Ulyanovsk of Appeal Facts in Order to Induce Municipal Servants to Commit Corruption Offenses // Ulyanovsk Segodnya. 2010. No. 20 (837).

4

E.g., see: Order of the Khabarovsk City Duma No. 895 dated April 22, 2014 On the Implementation of Measures Aimed at Combating Corruption (along with the Provision on submission by deputies of the Khabarovsk City Duma exercising the powers and authority on a constant basis information about their income, expenses, property and property obligations, and income, expenses, property and property obligations of their spouse (wife) and minor children, the Provision on the procedure of notification by the deputies of the Khabarovsk City Duma exercising the powers and authority on a constant basis of the receipt of a gift in connection with their official position or performance of their official duties, delivery and evaluation of a gift, sale (redemption) and transfer of the proceeds from its sale) // Khabarovskie Vesti. 2014. No. 64.

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fields of activities and offices of municipal service1 or the list of such offices2. Within the context of the preventive measures aimed at combating corruption in certain municipal units there have been approved the codes of ethics and official behavior of municipal servants including the set of general principles of professional official ethics and the basic rules of official behavior, which must be observed by municipal servants notwithstanding the office they substitute3. The establishment of the code of ethics and rules of official behavior of municipal servants promotes worthy performance of their professional activities, as well as strengthening of their authority, development of respect for municipal service in the public perception, building of trust of citizens towards local authorities and providing the uniform standards of behavior for municipal servants. In order to plan and implement anti-corruption measures certain municipal units adopt municipal programs aimed at combating corruption4. A special-purpose approach to the regulation is admitted to be quite effective since program regulation has a complex of peculiarities, which are not characteristic for regulatory and specific legal control. The mechanisms for program regulation, which are based on the monitoring principally aimed at the detection of causes and existence conditions of problems, promote the implementation of integrated approaches aimed at combating corruption. Thanks to the program, planned measures, time limits and procedure for their 1

E.g., see: Order of the Head of Administration of the Nemansky Municipal District No. 576-r dated September 10, 2012 On Approval of the Registers of the Most Corruption Dangerous Fields of Activities and Offices of Municipal Service in the Administration of the Nemansky Municipal District // The document hasn’t been published. ConsultantPlus Legal Reference System; Resolution of the Administration of the city district of Revda No. 233 dated February 8, 2016 On Approval of the Register of Corruption Dangerous Fields of Activities and Offices of Municipal Service in the City District of Revda // Municipal Bulletin. 2016. No. 5.

2

E.g., see: Resolution of the Administration of Nizhni Tagil No. 1367-PA dated June 3, 2015 On Approval of the List of Offices of Municipal Service in the Administration of Nizhni Tagil, the Substitution of Which Is Connected with Corruption Risks // Tagilsky Rabochiy. 2015. No. 109 (officially, No. 43).

3

E.g., see: Order of the Administration of the City of Tomsk No. r483 dated May 16, 2011 On Approval of the Code of Ethics and Official Behavior of Municipal Servants of the Administration of the City of Tomsk and Its Bodies //The document has not been published. ConsultantPlus Legal Reference System.

4

E.g., see: Resolution of the Administration of the Ayano-Maysky Municipal District No. 204 dated December 5, 2013 On Approval of the Municipal Program «Prevention of Corruption in the AyanoMaysky Municipal District for 2014-2016» // Information Manual of municipal legal acts of the Ayano-Maysky Municipal District of the Khabarovsk Territory. 2014. No. 1 (vol. II).

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implementation, agencies and organizations, which are responsible for their implementation, financial assets for exercising these measures are connected together. It is understood that the represented picture of development of a municipal regulatory and legal framework in the field of combating corruption has a rather generalized character. The level of its contents and the quality of preparation of municipal regulatory legal acts are determined by the possibilities of a municipal unit and the arrangement of methodological assistance during its preparation and the adoption of these acts by public authorities of the constituent entities of the Russian Federation. In this connection, the disadvantages of a regional regulatory legal framework are projected in many respects on the legal anti-corruption framework of the corresponding municipal units. Directions, forms, approaches, methods aimed at combating corruption at the municipal level are basically the same as at the level of public authorities of the constituent entities of the Russian Federation: ensuring anti-corruption regulation, which includes the development of administrative procedures; control over compliance by civil servants with the service procedure including compliance with restrictions, bans and responsibilities as required by the legislation; settling the conflict of interest, organizing the receiving of citizens’ notifications of corruption-related violations, anticorruption expertise of legal acts; monitoring of corrupt factors and effectiveness of anti-corruption measures; encouragement of anticorruption efforts of the society, civic institutions and other.1 It is connected to a large extent with the homogeneity of aims of state and municipal authorities. The development of the regulatory legal framework for combating corruption at the municipal level is implemented in line with common state priorities stated in the National strategy. Thus, by taking measures for combating corruption, local authorities act as a part of the state.

1

See: Vasiliev V.I. Combating corruption and local self-government // Journal of the Russian Law. 2012. No. 4. P. 5–17.

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Chapter 3 INSTITUTIONS ESTABLISHED TO COUNTERACT CORRUPTION IN THE RUSSIAN FEDERATION § 1. THE ROLE OF THE PRESIDENT OF THE RUSSIAN FEDERATION AND FEDERAL EXECUTIVE BODIES IN COMBATING CORRUPTION

The Constitution of the Russian Federation determines the status of the President of the Russian Federation as the head of the State, guarantor of the Constitution of the Russian Federation, of the rights and freedoms of man and citizen. The President has a variety of statutory powers in all spheres of the state activity. The President plays a key role in providing control over the government affairs aimed at combating corruption. Determining the guidelines of the internal and foreign anti-corruption policy of the State, the President guarantees the consistent functioning and cooperation of public authorities; he addresses with annual messages on the situation in the country; he issues decrees and orders which are obligatory for fulfillment in the whole territory of the Russian Federation; he exercises the right of legislative initiative; he approves political and legal documents – strategies, doctrines, conceptions; he exercises the control over implementation by executive authorities of federal laws (with regard to the presidential powers, which include combating corruption), decrees, orders, and other decisions. Besides, the President issues a warning to senior government officials, dismisses them, suspends them from duty for violations including those related to corruption. The President has played a crucial role in the preparation and implementation of first major anti-corruption changes in the country, triggered the adoption of first fundamental regulatory legal acts1 1

Under the Presidential Address to the Federal Assembly dated 2001, the Government was charged with a task to organize and start implementation of an administrative reform, and in order to implement the Presidential Address to the Federal Assembly, the Decree of the President dated 2003 determined basic measures on the implementation of the administrative

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and political and legal documents1 of anti-corruption nature. They reflect a distinct policy representing the complex of interrelated principles, procedures and specific measures aimed at prevention and suppression of corruption offenses. Moreover, the President has determined the basic principle aimed at combating corruption – the priority of preventive measures over punitive ones as the premise for rooting out corruption. That principle was implemented in the first National anti-corruption plan approved by Presidential Order No. Pr-1568 dated July 31, 20082. According to the above-mentioned principle, the National plan has determined for the first time a balanced system of anti-corruption measures in order to eliminate its root causes and to implement these measures within the context of ensuring development of the country, as well as directions of the legislative provision aimed at combating corruption. The preventive strategy stated by the President and his competence in the field of organizational framework aimed at combating corruption are recognized in the Law on Combating Corruption (Part 1 Art. 5). The President establishes the jurisdiction of the federal executive authorities, whose activities he administers, in the field of combating corruption. According to Part 5 Article 5, special coordinating bodies can be formed by the decision of the President in order to provide coordination of activities of the federal executive authorities, executive government bodies of the constituent entities of the Russian Federation and local authorities on implementation of the state policy in the field of combating corruption. They can be formed as part of representatives of federal authorities, public reform in 2003–2004. (Official Gazette of the Russian Federation. 2004. No. 11. Art. 945). These measures are recognized by the Concept of the administrative reform in the Russian Federation in 2006-2010 and by the actions plan on its carrying out approved by order of the Government of the Russian Federation No. 1789-r dated October 25, 2005 (Official Gazette of the Russian Federation. 2005. No. 46. Art. 4790), providing for introduction of anti-corruption mechanisms in executive authorities. 1

Draft federal laws No. 315582-4 On the Ratification of the Criminal Law Convention on Corruption; No. 251008-4 On the Ratification of the United Nations Convention against Corruption; No. 105377-5 On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Ratification of the United Nations Convention against Corruption dated October 31, 2003 and the Criminal Law Convention on Corruption dated January 27, 1999 and the Adoption of the Federal Law On Combating Corruption, and others.

2

Rossiyskaya Gazeta. 2008. August, 5.

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authorities of the constituent entities of the Russian Federation and other entities. This Law was adopted among other draft laws initiated by the President and, thus, in 2008 the legislative regulation aimed at combating corruption was given consistent character. The following step in the development of the anti-corruption legislation was the introduction of draft federal laws providing legal and organizational framework for the anti-corruption expertise of regulatory legal acts and draft regulatory legal acts by the President to the State Duma1. In the following years, new priorities and approaches have been determined by the President in the National strategy and the National anti-corruption plan for 2010–2011, which expressed the essence of the state anti-corruption policy for the specified period2. The National strategy defines objectives, aims, main principles aimed at combating corruption, directions and its implementation mechanism. In order to achieve the objectives of the National strategy, relevant legislative and organizational frameworks for combating corruption must be formed on timely basis. According to the National strategy, on the initiative and under the direction of the President legislative acts having crucial importance for combating corruption have been prepared3. Criminalization of lucrative acts, toughening of the requirements to official and service behavior of persons holding public offices, civil servants, and also employees of state corporations and other organizations, improvement of administrative sanctions for lucrative offenses have essentially strengthened the legal framework in this field. In order to implement the National strategy and to arrange execution of the Law on Combating Corruption, the President has approved two-year national anti-corruption plans for 2012– 2013, 2014–2015, 2016–2017, the measures of which presuppose 1

Official Gazette of the Russian Federation. 2009. No. 29. Art. 3608, 3609.

2

Official Gazette of the Russian Federation. 2010. No. 16. Art. 1875.

3

See: Federal Law No. 97-FZ dated May 4, 2011 On Amendments to the Criminal Code of the Russian Federation and to the Code of Administrative Offenses of the Russian Federation Associated with the Improvement of Public Administration in the Field of Combating Corruption // Official Gazette of the Russian Federation. 2011. No. 19. Art. 2714; Federal Law dated November 21, 2011 No. 329 On Introducing Amendments to Certain Legislative Acts of the Russian Federation Associated with the Improvement of Public Administration in the Field of Combating Corruption // Official Gazette of the Russian Federation. 2011. No. 48. Art. 6730.

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improvement of regulatory and organizational framework for combating corruption, ensuring the implementation of legislative acts and management decisions, activation of civil society institutions in the anti-corruption education of citizens and so on. Thus, in the National Plan for 2016–2017 it has been planned to solve the following primary objectives: – the improvement of legal and organizational mechanisms for detection and prevention of conflicts of interests among individuals holding public offices, the substitution of which requires the adoption of measures aimed at the prevention and settlement of conflict of interest; – the improvement of anti-corruption effectiveness in federal executive bodies and in state agencies of the constituent entities of the Russian Federation, the intensification of activities of the departments of federal public authorities aimed at the prevention of corruption and other offenses, as well as the commissions for coordination of anti-corruption work in the constituent entities of the Russian Federation; – the improvement of the mechanisms for control over expenses and forfeiture to the State of the property in relation to which there are no evidences concerning its purchase with lawful income; – the improvement of anti-corruption effectiveness in the course of central and local government procurement; – the promotion of influence of ethical (moral) standards in order to provide observance of anti-corruption demands by individuals holding public offices of the Russian Federation, public offices of the constituent entities of the Russian Federation, municipal offices, offices of federal and municipal service; – dismissal from state civil service of individuals violating the requirements as specified in order to prevent corruption. According to the formulated objectives, the National Plan has specific instructions given to the Government of the Russian Federation, authorized anti-corruption government bodies, federal executive bodies, academic and educational institutions, and recommendations given to civic institutions. The value of the national plans is that they determine principle directions of the state anti-corruption policy for a specified period and consistent measures for their implementation. 113

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Demonstrations of deviant behavior in the government machine, such as violation of official behavior rules, conflict of interests, nonobservance of prohibitions and right constraints, ethical standards, invoke various measures in order to prevent them. Among such measures, it is necessary to highlight the Presidential approval of the general principles of official behavior of civil servants and the provisions on commissions on observance of the requirements for official behavior of federal civil servants and the settlement of the conflict of interests1. The provision defines the organizational enforcement mechanism aimed at the observance of the rules for official behavior by public servants and the prevention and settlement of the conflict of interests. The above-mentioned commissions are established in federal executive bodies, executive government bodies of the constituent entities of the Russian Federation, other state authorities in compliance with the Law on Combating Corruption. The Presidential exclusive rights include creation of advisory and consultative bodies in order to implement the powers and authority. The President has formed the Anti-Corruption Council2, which performs: drafting of proposals for the President on structuring and implementing state anti-corruption policy; coordination of efforts of the federal and regional executive authorities and local selfgovernment bodies when implementing state anti-corruption policy; control over implementation of the National Anti-Corruption Plan. In fact, this institution not only informs the President on the situation, but also it is an anti-corruption agency charged with important organizational, coordinating and supervising functions. Thus, the President plays a key coordinating role in the formulation of the state policy aimed at combating corruption, legally and practically ensures the development and the ongoing updating of legal and organizational anti-corruption framework, resulting in 1

See: Decrees of the President of the Russian Federation No. 885 dated August 12, 2002 On Approval of General Principles of Official Behavior of Civil Servants // Official Gazette of the Russian Federation. 2002. No. 33. Art. 3196; No. 821 dated July 1, 2010 On Commissions for Compliance with Requirements to Official Behavior of Federal Officials and Settlement of a Conflict of Interests // Official Gazette of the Russian Federation. 2010. No. 27. Art. 3446.

2

See: Decree of the President of the Russian Federation No. 815 dated May 19, 2008 (revised July 1, 2010) On Measures to Combat Corruption // Official Gazette of the Russian Federation. 2008. No. 21. Art. 2429.

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the consistency and effectiveness of anti-corruption activities in the Russian Federation. The constitutional status of the President of the Russian Federation as the highest executive body also predetermines his leading role in the field of combating corruption. The Constitution of the Russian Federation, Federal Constitutional Law No. 2-FKZ dated December 17, 1997 On the Government of the Russian Federation, other legislative acts formalize a vast amount of functions and various powers of the Government practically in all spheres of social and state life. General powers of the Government of the Russian Federation (arrangement and implementation of the internal and foreign policy; exercising regulation in the socioeconomic sphere; securing the unity of the executive branch in the Russian Federation, directing and supervising activities of its bodies; developing federal target programs and ensuring their implementation; right to legislative initiative and other) include rights and obligations in the field of combating corruption. According to p. 3 Art. 5 of the Law on Combating Corruption, the Government allocates functions aimed at combating corruption to federal executive bodies, the activities of which are supervised by the Government. While making arrangements for the implementation of the internal and foreign policy of the Russian Federation, the Government anticipates the situation in the field of combating corruption. In the Concept of long-term socio-economic development of Russia till 2020, approved by Decree of the Government of the Russian Federation dated November 17, 2008 No. 1662-r1, one of the principles of transition to innovative socially oriented development of the state in relationships with business entities is specified as the reduction of administrative barriers in the economy and the conversion of Russia into the state with a low level of corruption. Measures aimed at the planned reduction of corruption are also specified in other governmental documents containing programs of action2. Corruption seizes various directions of the state activity, and 1

Official Gazette of the Russian Federation. 2008. No. 47. Art. 5489.

2

E.g., see: Resolution of the Government of the Russian Federation No. 316 dated April 15, 2014 On Approval of the State Program of the Russian Federation «Economic Development and Innovative Economy» // Official Gazette of the Russian Federation. 2014. No. 18 (p. II). Art. 2162.

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therefore, measures aimed at combating corruption and rooting out its causes are taken by the Government in compliance with specific features of the tasks to be solved, tools and methods of the state regulation1. The principle of «integrated use of political, organizational, outreach, socio-economic, legal, special and other measures» declared under Art. 3 of the Law on Combating Corruption predetermines the nature of the Government activity. The role of the Government of the Russian Federation manifests itself to the fullest extent in its work on implementation of the government machinery reform, development of legal framework aimed at combating corruption, ensuring anti-corruption measures, international cooperation. Formation of a meaningful executive establishment, complying with the conditions and public and state needs, its economic structure, continues to be a relevant objective for the Government. An essential anti-corruption potential is laid in the measures to be taken to continue the administrative reform. They include: improvement of regulatory and supervisory activities; optimization of the structure and the powers of the federal executive bodies; sectoral measures aimed at the improvement of permitting activities and so on. Along with the administrative reform, the Government carries out reforms in social, information and other spheres. Implementing strategic directions of the sectoral reforms, the Government also implements measures aimed at the prevention of corruption and combating it2. The Government of the Russian Federation takes 1

For details, see: Kalmykova A.V. The Government of the Russian Federation in the field of combating corruption// Corruption: nature, manifestations, countermeasures / managing editor Т.Ya. Khabrieva. М., 2012. P. 254 and the following.

2

Thus, Resolution of the Government of the Russian Federation No. 305 dated April 15, 2014 On Approval of the State Program of the Russian Federation «Development of Pharmaceutical and Medical Industry» for 2013 - 2020 (Official Gazette of the Russian Federation. 2014. No. 18 (p. I). Art. 2152) introduces measures aimed at the reduction of corruption risks in the field of drug production; Resolution No. 313 dated April 15, 2014 On Approval of the State Program of the Russian Federation «Information Society (2011-2020)» (Official Gazette of the Russian Federation. 2014. No. 18 (p. II). Art. 2159) defines the place and the meaning of information technologies for the implementation of such fundamental political liberties as the freedom of speech and gathering, as well as the measures aimed at detection and elimination of focal points of corruption. Resolution of the Government of the Russian Federation No. 302 dated April 15, 2014 On Approval of the State Program of the Russian Federation «Development of Physical Training and Sports» (Official Gazette of the Russian Federation. 2014. No. 18 (p. I). Art. 2151).

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preventive anti-corruption measures principally in those fields, where the manifestation of corruption is most likely: the administration of state-owned property, the expenditure of budgetary funds, the provision of state services, subsidies, benefits and so on1. In order to implement anti-corruption policy the Government has instituted and uses such an efficient anti-corruption technology as legal monitoring which serves as an instrument for evaluation of the effectiveness of statutory regulations. An anti-corruption aspect is one of the elements of law and other regulatory legal act effectiveness2. The Government annually approves a monitoring plan and considers its results in the plan of legislative drafting activities; it submits a report on the results of law enforcement monitoring in the Russian Federation to the President. The report mandatorily includes proposals on adoption (enactment), revision or repeal (revocation) of legislative or other regulatory legal acts of the Russian Federation, on measures aimed at the improvement of law enforcement and combating corruption effectiveness, as well as on the state agencies responsible for implementation of the corresponding work in terms of specification of their powers3. Thus, ensuring the organization and implementation of the law enforcement monitoring, analyzing its results and considering them in organizational and legislative drafting activities, the Government of the Russian Federation conducts an inspection of regulatory legal acts for corruptogenicity. This fact makes it possible to efficiently

1

E.g., see, Resolution of the Government of the Russian Federation No. 327 dated April 15, 2014 On Approval of the State Program of the Russian Federation «Administration of Federal Property» (Official Gazette of the Russian Federation. 2014. No. 18 (p. III). Art. 2172). It provides measures for preventing corruption violations in the process of federal property administration. Similar measures aimed at combating corruption are adjusted in the Resolutions of the Government of the Russian Federation No. 1301 dated December 1, 2015 On Amendments to the Federal Target Program «Development of a Unified State System of Registration of Title and Cadastral Registration of Real Estate (2014 – 2019)» (Official Gazette of the Russian Federation. 2015. No. 50. Art. 7157) and No. 295 dated April 15, 2014 On Approval of the State Program of the Russian Federation «Education Development» for 2013-2020 (Official Gazette of the Russian Federation. 2014. No. 17. Art. 2058).

2

For details, see Chapter 6 of this study.

3

E.g., see: Report on the results of law enforcement monitoring in the Russian Federation in 2012; Report on the results of law enforcement monitoring in the Russian Federation in 2013. URL: http: // government.ru (accessed date: July 21, 2014).

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eliminate elements of corruption from lawmaking activities of the Government and the agencies of state power. According to the principal directions of governmental activities for the period till 2018, approved on May 14, 2015, development of the anti-corruption system will be continued including by means of the arrangement of conditions for active public control over the efficiency of government expenditure and investments with the state participation, as well as public monitoring and control over the activities of the state power agencies. According to Art. 12 of the Law on Combating Corruption, the Government of the Russian Federation continues to form the legal framework for public participation in combating corruption and the development of intolerant attitude in the society toward corrupt behavior. A wide range of operational and regulatory powers of the Government predetermine its potential, responsibilities and possibilities in the implementation of the anti-corruption policy. In 2015, according to the National Anti-Corruption Plan for 2014–2015, it is the Government that carried out main work on the practical arrangement of anti-corruption measures: drafted regulatory legal acts aimed at the improvement of anti-corruption framework in the constituent entities of the Russian Federation; ensured on a centralized basis raising of qualification of federal public servants whose official duties include combating corruption; analyzed corruption risks in certain spheres, as well as upon the implementation of large infrastructure projects and introducing the set of measures aimed at the reduction of corruption in this spheres; implemented measures aimed at the improvement of coordination and regulation of cooperation of regulatory and supervisory authorities of the Russian Federation and other. The Government has to implement even more large-scale work on combating corruption in 2016 according to the National Plan for 2016–20171. 1

Within the indicated period, the Government is charged with the following tasks: to improve legal framework and organizational mechanisms for detection and prevention of the conflict of interests regarding persons holding offices for which it’s obligatory to take measures aimed at prevention and settlement of the conflict of interests; to improve arrangements for control over expenses and forfeiture to the State of property in relation to which there isn’t any evidence of its purchase with lawful income, provided by Federal Law No. 230-FZ dated December 3, 2012 On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons. The Government is also charged with: the preparation of measures aimed at the improvement

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Governmental activities are not limited to the implementation of measures at the domestic level. The National Anti-Corruption Plan for 2016–2017 covers a number of aims, which are solved by the Government within the framework of international cooperation and implementation of international obligations of the Russian Federation, in particular, it ensures practically significant and active participation of the Russian Federation in the international anti-corruption activities within the working group of Asia-Pacific Economic Cooperation on combating corruption and providing transparency, the working group of Group of Twenty on combating corruption, the working group of BRICS countries on combating corruption, as well as it maintains cooperation with the International Anti-Corruption Academy. Federal executive bodies are among main anti-corruption state institutions in the country. It is to be recalled that the Law on Combating Corruption defines these activities principally as an obligation of federal state bodies aimed at preventing corruption, combating this phenomenon and its eliminating. The significance and principal directions of anti-corruption activity of federal executive bodies are predetermined by their high legal status within the mechanism of state administration and by large-scale nature of their competence. An anti-corruption aspect penetrates into all spheres of activity of federal executive bodies acting as the basis for publicity, legitimacy, efficiency, productivity and openness of the state administration taken as a whole. Preventing and eliminating corruption in federal executive bodies is a must for the optimization of functioning of these most important parts of the state administration. For this very reason, federal executive bodies have become the first federal public authorities, where new anti-corruption technologies have been applied: preventive actions against the deformation of official relationships; the anti-corruption expert examination of valid departmental regulatory legal acts and

of effectiveness of activities conducted by subdivisions of federal public authorities and state government bodies of the constituent entities of the Russian Federation relating to the prevention of corruption and other offenses, and also commissions for the coordination of activities aimed at combating corruption in the constituent entities of the Russian Federation; the development of measures aimed at the improvement of anti-corruption effectiveness in the course of central and local government procurement.

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their drafts; the monitoring of law enforcement, the implementation of anti-corruption standards of official behavior for public servants. Specific areas of anti-corruption work of federal executive bodies are determined by the subject matter of their activity and their scope of jurisdiction, they depend on their functional and departmental affiliation and on the type of body in the executive branch (a federal ministry, a federal service, a federal agency). The principal directions of activity of federal executive bodies are recognized directly in the anti-corruption legislation, among them: – improvement of their system and structure; optimization and specification of their powers; – providing access to information on activities of federal executive bodies for citizens; – improvement of the public service procedure; – rundown of public servants with simultaneous employment of qualified specialists; – increasing the responsibility of federal executive bodies and their officials1. The UN Convention against Corruption (Art. 6) recommends creating a specialized anti-corruption body with necessary competence: «Each member state shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body that prevents corruption». However, the Russian legislation has not adopted the experience of many countries in the creation of such a body, the powers of which include investigation of corruptionrelated crimes of high-ranking officials. Within the system of federal executive bodies there are several specialized (main) bodies empowered directly to combat corruption: the Federal Security Service of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, and the Ministry of Justice of the Russian Federation. The President of the Russian Federation administers these bodies. For the above-mentioned federal bodies, combating corruption is a primary objective according to the principal directions of their activity, which include exercise of 1

See: Combating corruption in federal executive bodies: research and practice guide/ T.A. Edkova, N.V. Kichigin, A.F. Nozdrachev and other; managing editor A.F. Nozdrachev. М.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012. P. 17 and the following.

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the functions aimed at ensuring security, law and order, combating corruption, protecting rights and freedoms of man and citizen and other. General directions of activity of the specified federal bodies include: coordination and improvement of anti-corruption forms and methods used by law enforcement and regulatory agencies; strengthening international cooperation and development of effective forms of cooperation with law enforcement agencies and with special services, with financial intelligence units and other competent agencies of foreign states and international organizations in the field of combating corruption and tracing, forfeiture and repatriation of the property obtained by corrupt means and kept abroad. Major tasks of the Federal Security Service of the Russian Federation (hereinafter- Russian FSS) include activities aimed at combating corruption within its powers in cooperation with federal executive bodies1. In order to solve this task, Russian FSS works out measures aimed at combating corruption (subpara. «b» para. 9 of the Statute on the Federal Security Service of the Russian Federation)2. Russian FSS comprises two major units for investigation of corrupt cases, the functions of which consist in combating corruption in state bodies, in control and coordination of the activities of local security agencies in this field3. The Ministry of Internal Affairs of the Russian Federation enforces the anti-corruption legislation of the Russian Federation within the system of the MIA of Russia (subpara. 49 para. 12 of the Statute on the Ministry of Internal Affairs of the Russian Federation)4. Main anti-corruption load in the system of the MIA of Russia remains with 1

See: Decree of the President of the Russian Federation No. 960 dated August 11, 2003 Issues of the Federal Security Service of the Russian Federation //Official Gazette of the Russian Federation. 2003. No. 33. Art. 3254.

2

Official Gazette of the Russian Federation. 2003. No. 33. Art. 3254.

3

For details, see: Chushkina А.А. On legislative framework for combating corruption in bodies of the Federal Security Service of the Russian Federation // Combating corruption as the major condition for establishment of a law-governed state: an interdepartmental scientific collection. М., 2009. Т. I. P. 170.

4

See: Decree of the President of the Russian Federation No. 248 dated March 1, 2011 Issues of the Ministry of Internal Affairs of the Russian Federation //Official Gazette of the Russian Federation. 2011. No. 10. Art. 1344.

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the General Administration of Internal Security – a structural unit of the central office of the MIA of Russia1. Decree of the President of the Russian Federation No. 250 dated March 1, 2011 Issues of Police Organization2 (subpara. «z» para. 1) has established that the police comprises units, organizations and services which are imposed with a duty to combat corruption, terrorism and extremism. These structural units implement such tasks as the detection and prosecution of corruption among high-ranking officials of executive and legislative agencies, public authorities of the constituent entities of the Russian Federation, as well as the suppression of ties between members of organized crime groups and corrupt public servants. The Ministry of Justice of the Russian Federation, according to Decree of the President of the Russian Federation No. 80 dated January 18, 2010 On the Amendments to Some Acts of the President of the Russian Federation Pursuant to the Adoption of the Federal Law On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts3 performs such an important power as conduct of the anti-corruption expert examination of draft federal laws, draft decrees of the President of the Russian Federation and draft government resolutions, prepared by federal executive bodies, other state agencies and organizations4. Current regulations on other federal executive bodies do not recognize specific functions connected with combating corruption. However, this does not mean that only authorized bodies perform such functions. Other federal executive bodies implement general powers in this sphere as statutorily required within the framework of their functional and departmental competence. Thus, the Ministry of Labor and Social Protection carries out development and arrangement of introduction and advisory and 1

For details, see: Kurakin А.V. Prevention and suppression of corruption in the system of the MIA of Russia. In: Legal means of corruption prevention and suppression in the system of public service of the Russian Federation. М., 2004. P. 196; Makarov А.А. On the issue of corruption in the system of internal affairs agencies // Combating corruption as the major condition for establishment of a law-governed state: an interdepartmental scientific collection. М., 2009. Т. I. P. 556.

2

Official Gazette of the Russian Federation. 2011. No. 10. Art. 1336.

3

Rossiyskaya Gazeta. 2010. No. 12.

4

For details, see: Legal acts: anti-corruption analysis: research and practice guide / I.S. Vlasov, A.A. Kolesnik, V.N. Naidenko, Yu.А. Tikhomirov, T.Ya. Khabrieva. М., 2010. P. 64 and the following.

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methodological support of measures aimed at preventing corruption in organizations, supervision of implementation of these measures1. The State Courier Service of the Russian Federation enforces the anti-corruption legislation within the framework of its system2. Federal executive bodies also ensure detection and elimination of corruptogenic factors in regulatory legal acts adopted (passed) by them. State activity on implementing the anti-corruption expert examination of regulatory legal acts (their drafts) is carried out through plans by means of coordination (the coordinating body is the Ministry of Justice of Russia), through methodological framework and under state control (regulatory authorities are the Government of the Russian Federation and the prosecution agencies). The anticorruption expert examination of regulatory legal acts (their drafts) can be conducted by federal public authorities both at their own discretion and with the assistance of third-party organizations and experts. All federal executive bodies have a complete interdepartmental legal and organizational system of anti-corruption measures based on the documents of program nature – anti-corruption plans, which are derived from the National strategy3 and two-year National AntiCorruption Plans approved by decrees and executive orders of the President of the Russian Federation. The Decree of the President of the Russian Federation On the National Anti-Corruption Plan for 2016–2017 (para. 2) charges the heads of federal executive bodies with the task on the basis of the National strategy and the National Anti-Corruption Plan for 2016–2017 to ensure amendments to the anti-corruption plans of corresponding federal executive bodies till May 1, 2016 aimed at

1

See para. 1 of the Regulation on the Ministry of Labor and Social Protection of the Russian Federation, approved by the Government Resolution No. 610 dated June 19, 2012 // Official Gazette of the Russian Federation. 2012. No. 26. Art. 3528.

2

See para. 19 of the Regulation on the State Courier Service of the Russian Federation, approved by Decree of the President of the Russian Federation No. 213 dated April 7, 2014 Issues of the State Courier Service of the Russian Federation // Official Gazette of the Russian Federation. 2014. No. 15. Art. 1726.

3

See: Decree of the President of the Russian Federation No. 460 dated April 13, 2010 On the National Anti-Corruption Strategy and the National Anti-Corruption Plan for 2010–2011 // Official Gazette of the Russian Federation. 2010. No. 6. P. 1875.

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achieving specific results, as well as to control the implementation of actions provided by the plan. Administrative regulations for the performance of public functions and state services delivery have an essential significance for the implementation of anti-corruption measures in federal executive bodies. They are prepared and adopted by federal executive bodies pursuant to Resolution of the Government of the Russian Federation No. 452 dated July 27, 2005 On Standard Regulations of the Internal Organization of Federal Executive Bodies1. Issuing regulations and their application in the activities of federal executive bodies, their public officials and civil servants ensures the administration of the state on the basis of law – within the framework of law, that, undoubtedly, contributes to the minimization of corruption causes and factors. Administrative regulations, firstly, enable citizens as consumers of one or another public service to imagine the process and result of its implementation more clearly, secondly, they greatly reduce the discretion of civil servants and, thus, they limit wrongful acts of public officials in the exercise of state functions and state service delivery. Anti-corruption powers in federal executive bodies are imposed on the HR department units aimed at preventing corruption and other offenses (on the relevant public officials)2. The above-mentioned units (or their public officials) ensure the compliance of civil servants with limitations and restrictions, demands aimed at the prevention or settlement of the conflict of interests, as well as their performance of obligations established in accordance with the anti-corruption legislation; they perform the gathering and processing of information on income and expenses, on assets and liabilities submitted by civil servants in accordance with the established procedure; they conduct official investigations and so on.3 1

Official Gazette of the Russian Federation. 2005. No. 31. Art. 3233.

2

Established in federal executive bodies pursuant to Decree of the President of the Russian Federation No. 1065 dated September 21, 2009 On the Check of Reliability and Completeness of Information Provided by Citizens Seeking to Hold Offices of the Federal Public Service, and Federal Public Servants, and Compliance with Requirements to Official Behavior by Federal Public Servants // Official Gazette of the Russian Federation. 2009. No. 39. Art. 4588.

3

On the functions of the HR units aimed at preventing corruption and other offenses, for details, see: Legal and institutional framework aimed at combating corruption in federal executive bodies. In: Combating corruption in federal executive bodies. P. 40 and the following.

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The Commissions for compliance with the requirements to official behavior of civil servants of the Russian Federation and the settlement of conflict of interests have been formed and function in all federal executive bodies according to Decree of the President of the Russian Federation No. 821 dated July 1, 2010. This Decree has approved the Regulation on commissions1, which defines their objectives and functions concerning compliance with the requirements to official behavior of federal officials and settlement of a conflict of interests. The Commissions are formed through the adoption of special legal acts by federal executive bodies2 and they function on a regular basis. They comprise representatives of the structural units on state civil service, HR policy, legal framework, where a civil servant, in relation to which an issue on compliance with the requirements to official behavior or on settlement of a conflict of interests is considered, holds an office of civil service, as well as representatives of the research and educational establishments of tertiary education, of other organizations, invited as independent experts. The objectives, set for the commissions, determine two priority areas of their activities: 1) promotion of compliance of civil servants with the requirements applicable to their official behavior; 2) settlement of a conflict of interests in case of its occurrence between civil servants. The commissions disregard the reports of crimes and administrative offenses, anonymous reports and they do not carry out investigations for service discipline violations. Combating corruption includes the activities not only of federal state bodies but also of civic institutions, organizations and natural persons within their powers (para. 2 Art. 7 of the Law on Combating Corruption3), therefore ensuring openness, cooperation with civic institutions are important aspects of the activities of federal executive bodies. 1

Official Gazette of the Russian Federation. 2010. No. 16. Art. 1875.

2

E.g., see Order of the Ministry of Education and Science of the Russian Federation No. 1108 dated October 6, 2015 On Approval of the Regulation on the Commission on Compliance with Requirements to Official Behavior of Federal Civil Servants of the Ministry of Education and Science of the Russian Federation, Employees Substituting Certain Offices on the Basis of the Employment Contract in the Organizations Created for Accomplishment of the Tasks Set for the Ministry of Education and Science of the Russian Federation, and Settlement of a Conflict of Interests (registered in the Ministry of Justice of the Russian Federation on October 27, 2015 No. 39492).

3

See also para. 8 of the National strategy.

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The Russian Federation strives for the activities of federal executive bodies to be based on the principle of legitimacy and to be maximally clear. The observance of these regulations is a guarantee of protection against the abuse of power; therefore, the activities of federal executive bodies are under deliberate attention of the state. In his Addresses to the Federal Assembly, the President of the Russian Federation, with the purposes of combating corruption, constantly stresses the need for openness to the society of all spheres of state administration, including the activity of state bodies. According to the legislation, the cooperation of federal executive bodies with civic institutions is carried out on the following major directions: arranging the implementation of an independent anti-corruption expert examination of regulatory legal acts and draft regulatory legal acts; inclusion of representatives of nongovernmental associations as part of anti-corruption (social) councils and committees created in federal executive bodies; anti-corruption propaganda; informing non-governmental associations about corrupt practices in the activity of federal executive bodies; handling the appeals of non-governmental associations on corrupt practices by federal executive bodies and other.1 Each of the specified forms of cooperation between federal executive bodies and non-governmental associations allows accumulating the joint anti-corruption efforts of the state and civil society. Federal bodies consistently implement government programs «E-Government» and «Open Government» in order to improve the objectiveness and transparency of administrative processes, to satisfy more quickly and effectively the inquiries and appeals of citizens and their associations, to provide true information on corrupt situation. § 2. JUDICIAL BODIES AND COMBATING CORRUPTION

In the context of combating corruption and creation in the society of the atmosphere of intolerance to corruption-related acts, it is crucial to observe two principles: the unavoidability of punishment 1

For details, see: Forms and mechanisms for cooperation of federal executive bodies with civil society in the field of combating corruption. In: Combating corruption in federal executive bodies. P. 130–153; Astanin V.V. On effective mechanisms for cooperation of the state with civil society in the field of combating corruption // Administrative and municipal law. 2011. No. 4. P. 5–8.

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for such acts and the equality of everyone before the law and the courts1. Herewith, the role of the courts is determined by their main purpose – to implement judicial power by executing justice. The Constitution of the Russian Federation has recognized fundamental principles of the organization and activity of the judiciary, among which special importance is given to principles of the independence of the judiciary (Art. 10) and of the independence of judges (Art. 120) indissolubly tied with each other. «The independence of the judiciary and the independence of judges are «two sides of the same coin», because they have the same goal – to ensure the society with objective, independent and impartial, based on the law, proceedings of any conflict of legal nature between the subjects of legal relations by a judge under the absolute enforcement of the right of a citizen to judicial protection», researchers point out2. The principle of isolation of one branch of government from another, their independence means the absence of relations of subordination between them in the process of implementation of proper powers. It’s a legal framework of the utmost importance, which forms a primary characteristic of the legal status of each branch of government in the system of statehood based on the universally recognized democratic principles. Therefore, many international organizations, in the first place the United Nations Organization, are aimed at the solution of this task. Thus, the Seventh United Nations Congress on the Prevention of Crime and Treatment of Offenders (Milan, August 26 – September 6, 1985) accepted and approved by Resolution of the General Assembly No. 40/32 dated November 29, 1985 the basic principles concerning judicial independence3. According to this document, one of the basic principles, which should be taken into account and should be respected by governments within the framework of their national legislation and practice, is a principle of independence of the judiciary, empowering it and demanding from it the guarantee of fair court proceedings and loyalty. «There shall be no inappropriate or unwarranted interference with the judicial 1

Art. 19 of the Constitution of the Russian Federation.

2

Ermoshin G.T. The development of constitutional principles of the independence of judicial bodies and of the independence of judges at the present stage of the reform // ConsultantPlus Legal Reference System.

3

UN official website URL: http://www.un.org/ru/documents/ decl_conv/conventions/indep.shtml

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process», is underlined in the document. Herewith, all state and other establishments must respect and observe the independence of the judiciary, and the states must ensure the independence of the judiciary and provide appropriate means enabling the judiciary to exercise its functions in a proper way. Here, such organizations can be mentioned as the European Commission for the Efficiency of Justice, declaring its objective as raising the performance efficiency of the judiciary in the member states, as well as improving the implementation of instruments accepted by the Council of Europe for this purpose1; the European Commission for Democracy through Law (the Venice Commission of the Council of Europe)2. Thus, in the Report on the rule of law (CDLAD(2011)003rev), adopted during the 86th plenary session (Venice, March 25–26, 2011), the Venice Commission emphasized that, despite the variety of legal and state systems, at the present time a consensus can be found with regard to essential components of the rule of law, as well as with regard to a constitutional state. According to the Venice Commission, the obligatory component of the rule of law and of a constitutional state is, among other things, the access to justice provided by independent and unbiased courts, in particular the judicial proceedings of administrative acts3.

1

In accordance with the constituent act of this Commission, its competence include: – analysis of the judiciary for compliance with the requirements and standards of the Council of Europe; – examination of problems of the judiciary and stating proposals for their improvement; – arrangement of information exchange concerning the judiciary; – legal service to member states; – assistance to other specialized agencies of the Council of Europe within the framework of their legislation concerning the preparation of international acts of the Council of Europe in the field of justice. See: Resolution of the Committee of Ministers of the Council of Europe dated September 18, 2002 No. Res(2002)12 On Establishment of the European Commission for the Efficiency of Justice // URL: http://docs.cntd.ru/document/90199644 For the activities of the above-mentioned Commission, see: Jan J.-P., Gurbanov R.A. The European Commission for the Efficiency of Justice. Organization. Activities. Development: scientific publication. М., 2015.

2

For the Venice Commission and the participation of the Russian Federation in its activities, see: The Venice Commission: one hundred steps toward democracy: monograph / edited by Т.Ya. Khabrieva, V.I. Lafitskiy. М.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2014.

3

URL: http://www.venice.coe.int/webforms/documents/?pdf=CDL(2012)084-rus

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In the Russian Federation, as it was stated above, the principle of isolation of the judicial authority from other branches of government, the independence of the judiciary is recognized by the constitutional provisions of the Russian Federation and it is a fundamental characteristic of the judiciary status in the system of the Russian statehood. The regulatory content of the principle of independence of the judiciary is composed of the elements of institutional, structural, functional, competent and resource provision, which are regulated by general and special norms. No less important problem than securing the independence of the judiciary is an issue of the independence of judges, treated by researchers1 as the capability of a judge to observe the oath of judge and to implement his/her responsibilities being subject only to the Constitution of the Russian Federation and the federal law. It is determined by the level of self-consciousness of a certain person, appears as his/her inherent characteristic nurtured in the process of the formation of a person as an individual. However, there are also legal guarantees. Thus, for example, Art. 120 of the Constitution of the Russian Federation defines the independence of a judge as his/her status characteristic. The independence of persons granted judicial powers and authority is provided by the procedural guarantees of a judge – the bearer of the judiciary, by organizational and institutional guarantees of a person holding a public office of the Russian Federation or a constituent entity of the Russian Federation, by the rules of substitution for such offices and of their dismissals, by setting the mechanisms of self-organization and self-government of the judiciary and so on. The issues of ensuring independence of judges have also been reflected in the documents of international organizations, including the reports of the Venice Commission2.

1

E.g., see: Ermoshin G.T. Op. cit., The autonomy and independence of the judiciary of the Russian Federation / E.B. Abrosimova, V.I. Аnishina, G.А. Gadzhiev, G.Т. Еrmoshin et al.; edited by V.V. Еrshov. М., 2006.

2

E.g., see: CDL-AD(2010)004 Report on independence of the judiciary. Part I – The independence of judges // URL: http://www.venice.coe.int/webforms/ documents/default.aspx?pdffile=CDLAD(2010)004-e; CDL-AD(2007)028 Report on the appointment of judges.

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In general, we can say that the courts have sufficient powers to enable them to oppose corruption, guided by international legal acts and the Russian legislation. According to the Ministry of Internal Affairs of the Russian Federation1, in January – June 2016, 71.1 thousand economic crimes were revealed, including crimes of corruption, which is 2,1% lower compared to the same period in 2015. The share of crimes in this category in the total number of registered crimes was 6%. Prevention of corruption involves the development and adoption of measures to prevent and eliminate the causes of the identified violations. At least once a quarter, the federal state government bodies, authorities of the constituent entities of the Russian Federation, local authorities, other bodies and organizations with appropriate powers must consider issues of law enforcement practices based on the results of the enforced decisions of courts of general jurisdiction, arbitration courts on invalidation of non-regulatory legal acts, unlawful decisions and actions (omission) of the said bodies, organizations and their officials, directly or potentially having the threat of corruption. A serious anti-corruption measure is the implementation of the powers of the court to pass riders or rulings. If during the criminal trial the circumstances are found that contributed to the commission of the crime, the court may pass a rider or a ruling, which draws attention of the relevant organizations and officials to these circumstances, requiring taking necessary measures (part 4, Article 29 of the Criminal Procedure Code of the Russian Federation). Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 9, 2013 No. 24 On Judicial Practice in Cases of Bribery and Other Corruption Crimes2 contains a recommendation to the courts in cases of corruption crimes to establish the circumstances that contributed to the commission of such crimes, especially bribe-taking and bribery, mediation in bribery, violation of the rights and freedoms of citizens. In each case, as emphasized in the Resolution, the court must pass riders (rulings), drawing attention of organizations and officials to these circumstances and the facts of violations of the law, requiring 1

Report of the Ministry of Internal Affairs of the Russian Federation «State of Crime –- January–June 2016 // Official site of the Ministry of Internal Affairs of the Russian Federation. URL: https://мвд. рф/folder/101762/item/8127775/

2

Russian Supreme Court Bulletin. 2013. No. 9.

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necessary actions to eliminate them (Paragraph 37)1. However, it must be noted that in order for the factors and conditions contributing to the commission of corruption crimes not to remain without judicial assessment, the practice of passing riders (rulings) deserves wider dissemination. Therefore, the courts are recommended in cases of crimes of corruption, not only to take the necessary measures to identify the causes and conditions that contributed to the commission of these crimes, but also to raise questions about their elimination in the riders (rulings) for the heads of state, municipal organizations and institutions2. It is obvious that the effectiveness of such practice depends on the moral authority of the judicial power. «Judicial protection of human rights and freedoms can be ensured only by competent and independent justice, based on the principle of justice and fairness. Such justice requires compliance by each judge with the rules of professional ethics, honest and diligent execution of his/her duties, due diligence to preserve both his/her personal honor and dignity, and the dignity and authority of the judicial power», emphasizes the preamble to the Code of Judicial Ethics, approved by the VIII AllRussian Congress of Judges on December 19, 2012. No less important components of the authority of the judicial power are high professionalism of judges and other judicial officials, as well as honesty and judicial integrity. In November 2002, in The Hague, the Bangalore Principles of Judicial Conduct3, which are considered to be international recommendations and standards in the field of justice, were adopted at the international meeting of judges. The document proclaims the principles that should guide the judge in his/her actions and on which the fair trial is based: independence, impartiality, integrity, ethics, equality, competence and diligence.

1

See: Kashepov V.P. Court’s role in the prevention and suppression of corruption offenses // Corruption: nature, manifestations, and countermeasures: monograph / managing editor Т.Ya. Khabrieva. М., 2012. P. 290.

2

Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 8, 2010 On Some Issues of Litigation Practice of Corruption-Related Crimes // ConsultantPlus Legal Reference System.

3

See: The official website of the United Nations. URL: http://www.un.org/ru/documents/decl_ conv/conventions/bangalore_principles.shtml

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We cannot but agree with those researchers1, who, noting the importance of each of these principles, pay special attention to the principle of compliance by the judge with the ethics. The essence of this principle is that «constant attention from the public imposes the duty on the judge to undertake a number of limitations; and despite the fact that an ordinary citizen may find these restrictions burdensome, the judge assumes them freely and willingly»2. When applying this principle in the national law, it should be recalled that the judges are responsible for notifying of the facts of corruption (Art. 9 of the Law on Combating Corruption). The publicity of the facts of addressing the judge by those interested in rendering of a judicial decision needed for them is an effective measure to prevent corruption. The Concept of strategic directions of development of the Russian legislation in the field of corruption prevention and combating it developed prior to the adoption of the Law on Combating Corruption, proposed to supplement Law of the Russian Federation dated June 26, 1992 No. 3132-I On the Status of Judges in the Russian Federation with the norms on the introduction in the courts of the register of non-procedural appeals to the judge. It was supposed to enter into this register all cases of appeals to the judge in order to induce him/ her to rendering biased and (or) illegal decisions in the exercise of justice, other appeals on the pending court materials not stipulated by the procedural legislation, as well as all appeals to induce him/her to violate the requirements to the judge established by law. The judge would be obliged to inform the president of the court about each entry. Such appeals would not only be recorded in the register, but also be disclosed. The concept proposed to supplement Art. 266 «The announcement of the composition of the court, other participants of the proceedings, and explaining to them the right of challenging» of the Criminal Procedure Code of the Russian Federation with the standards that each judge involved in the proceedings should announce all appeals (oral or written) on the case in point, received by him/her prior to the court proceedings. However, these proposals 1

E.g., see: Tkacheva N.N. Some problems of the judicial protection of the rights of citizens in the Russian Federation // Arbitration and civil procedure. 2013. No. 10. P. 7–14; Kleandrov M.I. The responsibility of a judge. M., 2015.

2

Bangalore Principles (para. 4.3).

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were not supported by the legislator. Nevertheless, in some courts, they were put into practice at the initiative of the judges and proved to be effective. The number of appeals to the judges with such requests has decreased significantly. In general, the legislative process has changed tack. Federal Law dated July 2, 2013 No. 166-FZ1 amended the Law of the Russian Federation On the Status of Judges in the Russian Federation, prohibiting any extra-procedural appeal to the judge in the case in charge, or the president of the court, his/her deputy, presiding judge or the president of the judicial panel in cases pending in the court. This extra-procedural appeal was described as any «appeal in writing or orally of a state body, local government body, another body, organization, official or citizen not being a party to the proceedings, in cases not provided for by the laws of the Russian Federation, or appeal of the participants of the trial in the form not provided for by the procedural legislation». Requests are prohibited not only to the judge, but also to the president of the court, his/her deputy, presiding judge or president of the judicial panel in cases pending in the court. The judges themselves, according to the legislation, should place such appeals in the Internet for their publicity. It should be noted that the direction of development of the Russian legal system in the fight against corruption in the judiciary is fully in line with the global trends. Thus, the European Charter on the Status of Judges (July 8–10, 1998) provides that the judge is free to exercise various activities that go beyond his/her judicial powers, including those, which are an expression of his/her civil rights. This freedom cannot be limited by anything except in cases where other activities are incompatible with confidence in the impartiality and independence of the judge and do not allow him/her to consider with the necessary care and within a reasonable time the cases referred to him/her. In order to practice any other paid extrajudicial activity except for literary or artistic one, it is required to receive prior approval on the conditions set by the statute2. 1

Official Gazette of the Russian Federation. 2013. No. 27. Art. 3458.

2

International principles on independence and accountability of judges, lawyers and prosecutors. Practical Guide No. 1 / International Commission of Jurists. Geneva, 2013. P. 190.

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The above Bangalore Principles, as well as official comments thereto published a year later, contain important provisions relating to the financial aspects of the activity of a judge and his/her family. In particular, it is established that «a judge shall be aware of his/ her confidential personal and financial interests and shall make reasonable efforts to obtain information about the financial interests of his/her family members». He shall not allow the members of his/ her family, social or other relationships to influence improperly his/ her actions related to the implementation of the judge’s functions, as well as the acceptance of judicial decisions and shall not use or allow the use of the authority of his/her own office to achieve personal interests, interests of the members of his/her family or any other person. A judge shall not act or allow others to act in such a way that it would be possible to conclude that someone has undue influence on the exercise by the judge of his/her powers1. Returning to the role of the courts in combating corruption, we should pay attention to the fact that when imposing punishment, the courts should take into account the gravity of the crime of corruption. It is recommended to use any discretionary powers to maximize the effectiveness of such crimes suppression. In other words, when imposing punishment, the courts should take into account the possibility of ensuring the purposes of punishment, general and special prevention. Increased social danger of corruption crimes should be taken into account by the courts when considering the possibility of probation or parole. The Supreme Court of the Russian Federation specifies this requirement in the Resolution of the Plenum On Judicial Practice in Cases of Bribery and Other Corruption Crimes2, which emphasizes the need for the judges to fulfill the requirements of the law on a strictly individual approach to imposing punishment on persons who have committed crimes of corruption with the use of their office, to take into account when assessing the degree of the crime’s social danger the content of the motives and objectives, the importance of the responsibilities that have been violated, the duration of the criminal actions (omission), the nature and severity of the damage caused, the identity of the accused (para. 36). 1

Paragraphs 4.7, 4.8, 4.9 of the Bangalore Principles.

2

Russian Supreme Court Bulletin. 2013. No. 9.

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Great value is given by the 2003 Convention against Corruption to the provisional measures taken by courts in corruption cases, and to creation of conditions that allow entertaining civil suits to establish title or ownership of the property acquired through the commission of crimes of corruption, ordering the payment of compensation or damages. This Convention obliges the States to provide the courts with the powers to give orders for the provision or arrest of banking, financial or commercial documents for identification, tracing, arrest and seizure of instruments of crime and proceeds of corruption, or property the value of which is equivalent to such proceeds. Therefore, in the administration of justice in cases of corruptionrelated crimes the courts’ activities is not only to render just sentences, but also to prevent such crimes and to minimize the damage caused. Assessment of quality of justice when considering the crimes of corruption may be the results of generalization of the judicial practice for application by the courts of the corruption crimes legislation. The statistics of recent years makes it possible to ascertain several stable trends in judicial practice for this category of cases. Thus, «a general decline in the preventive role of the criminal law impact in terms of imposing more stringent sanctions that are prescribed by law and should fulfill preventive functions in respect of persons subject to corruption risks»1 is noted. In January–June 2015, about 11.5 thousand cases of corruption were instituted in Russia, about 7.6 thousand such cases were sent to the court. According to the Supreme Court of the Russian Federation, in 2014, 11 thousand people were convicted of committing corruption offenses in Russia (in 2013 – 9.5 thousand), of them for bribe-taking – more than 1.6 thousand people (an increase of 13 % compared to 2013), for bribery – 4.1 thousand (an increase of 25% compared to 2013). Sixty-five per cent of the convicted gave a small bribe – up to 10 thousand rubles. In 2014, 20% of the total number of the convicted corruptionists (12% – in 2013) were sentenced to deprivation of liberty, while the number of those sentenced to fines decreased from 69% to 58%. The 1

See: Kashepov V.P. Op. cit. P. 290–291.

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greatest part of those convicted of bribe-taking (44%) accounted for state and municipal officers, 23% – employees of law enforcement agencies, 12% – educators1. Underestimating by the judges of social danger of criminal corruption threats is expressed in the preferential forms of punishment not adequate to the degree of these threats, in particular not related to the real terms of deprivation. Basically, the courts resort to probation of persons guilty of corrupt punishable offenses. In recent years, the number of probationers accounted for about 30% of the total types of criminal punishments selected by the courts for those guilty of corruption crimes2. There is no single point of view on what punishment is optimal for the commission of corruption crimes. The national anti-corruption plan for 2014–2015 provided for the analysis of the practice of application of a fine as the main punishment for such crimes. Consideration of improvement of this type of punishment gives grounds to assume that it is a fine that may be preferred3. Anti-corruption is not limited to the administration of justice. At the Plenary Session of the Interparliamentary Assembly of the CIS Member States, held on November 23, 2012 in St. Petersburg, dedicated to the definition of areas of combating corruption, Recommendations for improving the legislation of the CIS member states in the sphere of combating corruption were adopted. As one of the areas of combating, the creation of a unified state system of quality control of preparation and implementation of the anti-corruption legislation was suggested. Judicial control exercised by all branches of the judiciary was identified as an independent kind of control. In accordance with the Recommendations, the state Constitutional Court shall supervise the constitutionality of the developed and adopted regulatory legal acts in the sphere of combating corruption in the manner prescribed by the national law of the state. The courts of general jurisdiction and arbitration courts shall exercise judicial control over the implementation of the provisions of regulatory legal acts in the area of combating corruption (para. 5.9). 1

URL: http://tass.ru/info/2379115

2

See: Kashepov V.P. Op. cit. P. 291.

3

National Anti-Corruption Plan for 2014–2015.

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The concept of long-term socio-economic development of the Russian Federation for the period up to 2020 puts the economic development of the country in direct dependence on the confidence in justice, fairness of decisions made by the court, including in cases of corruption crimes, access to information about the activities of state bodies. Such bodies include the courts. In recent years, a number of federal laws to ensure the openness and transparency of justice, improving the efficiency and quality of cases consideration, access to justice and the prevention of corruption in the judiciary have been adopted. Only under these conditions, the trust of the citizens in the courts can be regained1. It is clear that the effective implementation of justice is possible in the first place, provided public awareness of the competence of the courts, of the procedure for court applications and protection of the interests of citizens in the proceedings. No wonder the Bangalore Principles of Judicial Conduct (para. 3.2) read as follows: «it is not enough simply to administer justice, it is necessary to do it openly to the public». In the Russian Federation, issues of openness of the judiciary activity are regulated by Federal Law dated December 22, 2008 No. 262-FZ On Providing Access to Information about the Activity of the Courts in the Russian Federation2. This Law defined the procedure for placing information on the websites of the courts, forms of information provision, the rights of its users, the procedure for the media representatives’ attendance of the court hearings, especially the placement in Internet of texts of judicial acts for subsequent public control. The adoption of this Federal Law was preceded by the decision of the European Court of Human Rights in the case Ryakib Biryukov vs. Russia dated January 17, 2008, in which a judgment on the claim of the applicant had not been announced in the court of Ulyanovsk in public. Moreover, a reasoned decision had to be waited for much longer than as prescribed by law. The European Court of Human Rights recognized these facts as a violation of para. 1 Art. 6 of the European Convention on Human Rights. 1

See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 13, 2012 No. 35 On Openness and Publicity of Court Proceedings and Access to Information on the Activity of the Courts // Russian Supreme Court Bulletin. 2013. No. 3.

2

Official Gazette of the Russian Federation. 2008. No. 52 (p. I). Art. 6217.

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Adoption of Federal Law dated December 22, 2008 No. 262-FZ can be considered a response to this ruling of the ECHR. And today, the use of information technology in the administration of justice is fully in line with the international requirements1. All federal courts of general jurisdiction, arbitration courts and the Judicial Department at the Supreme Court of the Russian Federation now have their official websites. The arbitration courts implemented the system of automatic publication of all decisions of the courts, on an open and free website. The creation of a modern information and telecommunication infrastructure of a common information space of the Supreme Court of the Russian Federation and federal courts of general jurisdiction, justices of the peace, judicial bodies, the system of the Judicial Department of the Supreme Court of the Russian Federation is recognized as the priority for ensuring information openness of the Russian judicial system. Achieving a high level of its availability is possible due to the development and implementation of software and hardware solutions of the state automated system called Justice in the courts of general jurisdiction and the system of the Judicial Department. Increased confidence in the court, availability of justice are also ensured by approaching the courts to the location of persons in need of legal protection. Criminal procedure law contains a provision on the review at the request of the defendant of cases of grave and very grave crimes by a panel of three professional judges (para. 3. p. 2 Art. 30 of the Criminal Code of the Russian Federation. This provision has led to liquidation and reorganization of low composite district courts that practically impedes public access to justice. The Institute of Legislation and Comparative Law under the Government of the Russian Federation has repeatedly proposed solutions to this problem. Based on the experience of the 1930s–1950s it could be possible to go back to the creation of visiting sessions of territorial 1

In accordance with the Recommendations of the Council of Europe Committee of Ministers dated May 14, 1981, in order to facilitate access to justice it is required to take all necessary measures to inform the public about the remedies to protect their rights in court, and to simplify, speed up and reduce the cost of court proceedings. The principles set out in the Recommendations became the basis of e-justice.

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and regional courts. A good solution was the formation of «permanent judgment seats» as part of the arbitration appellate courts and arbitration courts of the constituent entities of the Federation1. It will also contribute to the appeal of the actions of local officials carrying the corruption component. With the adoption of Federal Constitutional Law dated February 7, 2011 No. 1-FKZ On the Courts of General Jurisdiction in the Russian Federation2 the formation of permanent judgment seats is also possible in these courts. In order to bring justice to the location or place of residence of persons involved in the case, located or residing in remote localities, according to Part 3 Art. 24 and Part 2 Art. 33 of the said Federal Constitutional Law, as part of the Supreme Court of the republic, territorial, regional court, federal city court, court of an autonomous region, autonomous district court, a permanent judgment seat may be formed as a part of a district court located outside the court’s permanent seat, which will be a separate division of the court and will exercise its powers. Consideration should be given to the feature of Russia – its vast territory and distances that must be covered by the citizens to have actual opportunity to participate in the proceedings. Creating judgment seats will allow such persons to get to the court in a relatively short time and as economically as possible. However, in general it may be stated that the problem of finding the optimal judicial system lasts for as long as the State as such. This search is ongoing today as well. One cannot but agree with those researchers3, who believe that the main objective of judicial reform is to ensure that every person concerned will have an opportunity to exercise the right to judicial protection. But this requires a solution to eliminate differing interpretation and application of the same rules of substantive law by the courts. Only the uniformity of legal approaches in the 1

See Art. 33.2 of Federal Constitutional Law dated July 4, 2003 No. 4-FKZ On Amendments and Additions to the Federal Constitutional Law On Arbitration Courts in the Russian Federation // Official Gazette of the Russian Federation. 2003. No. 27 (p. I). Art. 2699.

2

Official Gazette of the Russian Federation. 2011. No. 7. Art. 898.

3

See: Shamshurin L.L. New stage of judicial reform: the essence, motives and expected results // Russian Judge. 2015. No. 6.

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consideration of similar cases can guarantee equality, consistency of ratio decidendi, their predictability and compliance with the law. This problem should be addressed in two ways. The first one, as discussed above, requires improving the quality of legislative drafting because the fact of discrepancy of legal determination by the courts in the interpretation of a rule is often indicative of the ambiguity of its understanding due to imperfection and inadequate application of legislative techniques. The second way is to improve the structure and rules of functioning and operation of the judicial system. An important step towards this was the consolidation of superior courts in February 2014. This innovation has caused a mixed response of the scientific community1. One thing is clear: currently a single high court – the Supreme Court of the Russian Federation shall determine the precise meaning of the rules of law, give their interpretation, remove contradictions, which will ensure the uniformity of legal approaches. This will also eliminate disputes on the boundaries of competences of various courts, as they simply cannot exist in the unified judicial system. There may be issues of jurisdiction of cases; however, the mechanism for their resolution is already established by the procedural law of the Russian Federation. Thus, the judicial reform is aimed at improving the functioning of the judicial system of the Russian Federation, which in turn will result in raising the level of protection of civil rights and, as a result, a more positive perception by citizens of the Russian judicial system. Creating the necessary conditions for administration of justice, ensuring its transparency and accessibility will contribute to credibility of the court and confidence in availability of opportunities to oppose corruption by legal means.

1

E.g., see: Sherstyuk V.M. Reorganization of the judicial system: what comes next? // Law. 2014. No. 3. P. 88–93; Isaenkova O.V. Continuing the discussions on the reorganization of the judicial system // Law. 2014. No. 3. P. 94–97; Meshcheryakova A.F. Consolidation of the Supreme Court and the Supreme Arbitration Court of the Russian Federation as the line of development of judicial reform and procedural law // Arbitrary and Civil Procedure. 2014. No. 7. P. 45–49; Chupilkina A.F. Consolidation of two high courts: feasibility of constitutional and judicial reform // Constitutional and Municipal Law. 2015. No. 3.

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§ 3. PROSECUTOR’S OFFICE OF THE RUSSIAN FEDERATION AND THE ACCOUNTS CHAMBER OF THE RUSSIAN FEDERATION IN THE NATIONAL ANTI-CORRUPTION SYSTEM

In the system of anti-corruption bodies, a special place is occupied by government agencies that are not included in the number of enforcement authorities – the prosecuting authorities and the Accounts Chamber of the Russian Federation. Their position is primarily determined by their legal status and independence in the system of public authorities. Providing a legislative framework for legal status of the Prosecutor’s Office of the Russian Federation in the chapter «Judiciary and the Prosecutor’s Office» of the Russian Constitution originally separated Prosecutor’s Office from other public authorities of the Russian Federation. Place of the Accounts Chamber in the system of public authorities is determined by reference to the fact that to control implementation of the federal budget the Federation Council and the State Duma established the Accounts Chamber, the composition and activities of which shall be set out in Federal Law dated April 5, 2013 No. 41-FZ On the Accounts Chamber of the Russian Federation1. The independent status of the Prosecutor’s Office of the Russian Federation is highlighted and emphasized by a special procedure for appointing Prosecutor General of the Russian Federation (by the Federation Council as advised by the President of the Russian Federation) and prosecutors of the Russian Federation (by the President of the Russian Federation as advised by the Prosecutor General of the Russian Federation). The Prosecutor General of the Russian Federation, in turn, appoints prosecutors of cities and regions. The Russian Constitution establishes special procedure for the formation of the Accounts Chamber of the Russian Federation and the appointment and dismissal of the Chairman of the Accounts Chamber, his/her deputy and members. In addition, composition of the Accounts Chamber is formed within the terms that do not coincide with the terms of functioning of the State Duma and the Russian President, which ensures its independence from these public 1

Official Gazette of the Russian Federation. 2013. No. 14. Art. 1649.

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authorities. Availability of the country’s independent, credible, efficient public audit authority, which plays a leading role not only in revealing but also in preventing violations of good governance principles by the executive authorities, is one of the key factors contributing to the success in combating corruption, and is in line with international practice. Competences and powers of the Prosecutor’s Office of the Russian Federation with regard to combating corruption are established by Federal Law dated January 17, 1992 No. 2202-I Concerning Prosecutor’s Office of the Russian Federation determining the purpose of the Prosecutor’s Office – exercise of supervision over observance of the Russian Constitution and execution of laws applicable on the territory of the Russian Federation on behalf of the Russian Federation. Basic areas of prosecutorial supervision are specified in the Law on Prosecutor’s Office. These include supervision in a number of key areas of law enforcement, the authority matters of which include issues directly related to anti-corruption activities. In full accordance with the Federal Law On Prosecutor’s Office of the Russian Federation, the powers of prosecutors in the field of combating corruption are established by the Law on Combating Corruption. Specific objectives in the area of combating corruption by the Prosecutor’s Office shall be set out in the national plans and programs. Thus, the National Anti-Corruption Plan for 2012–2013 provided for strengthening supervision over the execution of laws on the use of state and municipal property, placing orders for goods, works and services for state and municipal needs, on social protection, laws in the area of implementation of licensing functions by state and municipal authorities. Particular attention was paid to enforcement of legal provisions on the administrative liability of juridical persons on whose behalf or for whose benefit corruption offenses are committed. As part of the above requirements prosecuting authorities carried out inspections of military-industrial complex enterprises as to performance of the State Defense Order. National Anti-Corruption Plan for 2014–2015 provided for audits in the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance 142

§ 3. Prosecutor’s Office of the Russian Federation and the Accounts Chamber...

Fund, State Corporation Bank for Development and Foreign Economic Affairs (Vnesheconombank), State Atomic Energy Corporation Rosatom, State Corporation for the Promotion of the Development, Manufacture and Exportation of High-Technology Products Russian Technologies, State Agency for Deposit Insurance, Support Fund for the Reform of the Housing and Utilities Sector, State Company Russian Highways. It emphasized the need for analysis of practices in forfeiture of property with no proof of its acquisition by legitimate income to the Russian Federation by court’s decision. National Anti-Corruption Plan for 2016–2017 focuses the prosecutors on ensuring compliance by public authorities with anticorruption laws in the organizations established to perform tasks assigned to these public authorities; anti-corruption laws in the disposal of land plots that are in state or municipal ownership, in the procurement of medicines and medical equipment for state needs and organization of healthcare delivery to citizens. One of the most urgent tasks is addressing the issues of compensation for damage caused to state and municipal unitary enterprises by corruptionrelated offenses. The Prosecutor General of the Russian Federation and subordinate prosecutors within their powers coordinate the activities of internal affairs authorities of the Russian Federation, the Federal Security Service, the customs authorities of the Russian Federation and other law enforcement agencies in combating corruption and execute other authority in the field of combating corruption established by the above-mentioned federal laws. Implementation of coordination function determines the maximum awareness of anti-corruption activities of law enforcement system in general and own active part in combating corruption, prompting the prosecutor’s office to use the entire range of functions and powers provided by law. Coordination functions are performed by Administration in the structure of the General Prosecutor’s Office of the Russian Federation and the relevant units in the regional prosecutor’s offices specially established for this purpose. Coordination is commonly understood as mutually agreed activities of various bodies (participants) to achieve common goal in the most efficient manner. The Prosecutor’s Office coordinates the activity of law enforcement agencies that have their own powers 143

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in the sphere of combating corruption. General requirements for coordination of activities of law enforcement agencies to combat crime are established by the relevant Regulation approved by Presidential Decree dated April 18, 1996 No. 567, which determines the main areas of coordination activities, including analysis of condition and other characteristics of corruption-related crimes; generalization of law enforcement practice, including the performance of international treaties of the Russian Federation; development of proposals on crime prevention, including improvement of legal regulation; submission of related materials to the President of the Russian Federation, the Federal Assembly of the Russian Federation and the Government of the Russian Federation, state authorities of constituent entities of the Russian Federation. Basic tools of coordination are the Interagency Working Group on Combating Corruption and Coordination Meeting of the heads of law enforcement agencies of the Russian Federation. Article 9 of the Law on Combating Corruption provides for the obligation of state and municipal officials to notify the prosecuting authorities of all cases of any person’s behavior aimed at inducing them to commit corruption offenses. To execute the powers of the Prosecutor’s Office under the Federal Law On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons, the Prosecutor General instructs the prosecutors, inter alia: to provide legal regulation by agencies and organizations of the procedure and timing for submission of information on expenditure, consideration by the Commissions on compliance with official conduct and settlement of conflicts of interest (Personnel Review Commissions) of audit results obtained in the course of expenditures monitoring; to constantly monitor the performance of obligation to provide information on expenditure; to evaluate the activities of authorized bodies, departments and officials on obligations to combat corruption, as well as their compliance with the relevant procedure for monitoring of expenditure against revenues of persons holding public office and other persons; to monitor compliance with the procedure for posting of information provided by Part 4 Art. 8 of the Federal Law On Monitoring of Expenditure Against Revenues of Persons Holding Public Office and Other Persons on the Internet. At the same time, 144

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prosecutors shall prevent expenditure monitoring in the absence of legal grounds, as well as violations of the rights of persons under review. Presidential Decree dated April 2, 2013 No. 309 On Measures to Implement Certain Provisions of the Federal Law On Combating Corruption stipulates that the prosecutor may participate in the meetings of Commissions on compliance with official conduct and settlement of conflicts of interest created under the public authority, the Central Bank of the Russian Federation, the Russian Pension Fund, the Social Insurance Fund, Federal Compulsory Medical Insurance Fund, in the state corporation (company), other organization established under the Federal Laws, organization established to perform tasks assigned to the federal public authority. In this case, Chairman of the Commission shall submit the required materials to the prosecutor supervising the compliance with legislation on public service and labor laws no later than five business days prior to the meeting. In addition, in accordance with the Regulation on Commissions on compliance with official conduct of federal public officials and settlement of conflicts of interests in the case of revealing the fact of conclusion with a person which held public office in the public authority of labor or civil contract for works (services), if the particular governance functions of this organization comprised his/ her job (official) duties performed during holding office in the public authority, that violates the provisions of the Law on Combating Corruption, the Commission shall recommend to the head of the public authority to notify the prosecuting authorities of these circumstances. Powers of the Prosecutor’s Office in combating corruption are specified in the National Anti-Corruption Plan. The General Prosecutor’s Office conducts verification of compliance with the laws on combating corruption in the Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund, in state corporations, participates in the activities of working bodies of the United Nations Convention against Corruption and the Criminal Law Convention on Corruption, ensures performance in the Russian Federation of the provisions of international treaties in the field of combating 145

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corruption and recommendations of working bodies established under these treaties, and other international organizations. The Prosecutor General of the Russian Federation is a member of the Interstate Anti-Corruption Council, and the General Prosecutor’s Office is one of the central authorities of the Russian Federation responsible for implementing provisions of the Criminal Law Convention on Corruption regarding international cooperation, and provisions of the Convention against Corruption on mutual legal assistance. Analytical work of the Prosecutor’s Office as the main coordinator of law enforcement agencies to combat crime is to analyze the practice of criminal prosecution in corruption-related criminal cases. At the same time, prosecutors shall consider ratio decidendi of the Supreme Court of the Russian Federation. An independent area of anti-corruption activity of the Prosecutor’s Office is the conduct of anti-corruption expertise. In accordance with Federal Law dated July 17, 2009 No. 172-FZ On Anti-Corruption Expertise of Legal Acts and Draft Regulatory Legal Acts1 the prosecutors shall conduct anti-corruption expertise of regulatory legal acts of authorities, organizations and their officials on matters related to main areas of prosecutor’s supervision, namely: respect for and protection of the rights and freedoms of man and citizen, assignment of duties; protection of state and municipal property, holding public and municipal service, compliance with budget, tax, customs, urban development, environmental and other legislation, laws on licensing, as well as laws governing state corporations, foundations and other organizations established by the Russian Federation under the federal law; providing social guarantees to persons holding (having held) public or municipal offices, offices in state or municipal service. Studies have shown that independence and objectivity are characteristic of anti-corruption expertise conducted by the Prosecutor’s Office. Prosecutorial supervision over compliance with anti-corruption laws can detect cases of adoption of documents that are not regulatory legal acts formally, but in their content being as such, and include corruptogenic provisions. 1

Official Gazette of the Russian Federation. 2009. No. 29. Art. 3609.

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The procedure for organization of anti-corruption expertise of regulatory legal acts is established by Order of the Prosecutor General of Russia dated December 28, 2009 No. 400. This order, in particular, instructs the heads of the prosecution authorities to participate personally in meetings of legislative (representative) public authorities of constituent entities of the Russian Federation or representative bodies of local self-government when considering requests for changing regulatory legal act, to work toward compliance with the requirements and in case of rejection – to apply to the court. The Law on the Prosecutor’s Office provides the prosecutors with significant opportunities to ensure the rule of law. First of all, the prosecutors have the right to make a notice of protest against the legal act contrary to the law revealed in the course of the prosecutorial supervision. The notice of protest shall be subject to mandatory consideration within ten days from the date of its receipt, except in cases where the legislative (representative) authority of the constituent entity of the Russian Federation or the representative body of local government considers the prosecutor’s protests at the nearest meeting. The prosecutor shall be entitled to request consideration of his/her protest within a shorter period of time in case of reasonable circumstances. The authority, organization, public official having considered the prosecutor’s protest shall be obliged to immediately notify him/her of the results. The prosecutor who has revealed in the course of supervision over the compliance with the requirements of legislation on combating corruption any signs of an administrative offense or crime shall issue a reasoned decision to institute administrative proceedings (institute proceedings on administrative offense and conduct administrative investigations), a reasoned decision to transfer the case files to the investigative body or to the body of inquiry to determine whether to bring criminal prosecution in accordance with paragraph 2 part 2 Art. 37 RF CPC. In order to eliminate violations of the law the prosecutor shall issue remedial action orders to the heads of relevant authorities and organizations, public officials. The remedial action order shall be considered promptly. Within a month from the date of remedial action order, all appropriate measures shall be taken to eliminate the identified violations, the causes and conditions that contributed to 147

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such violations. Measures taken and their results shall be reported to the prosecutor in writing. In order to prevent commission of corruption offenses if there is information about creating background for this, the prosecutor shall submit a written legal notice to public officials of impermissibility of law violation. At the same time, all anti-corruption requirements established by federal laws shall also apply to the prosecutors. The Prosecutor General of the Russian Federation as a person holding public office of the Russian Federation is subject to restrictions and obligations set out in Art. 12.1 of the Law on Combating Corruption. In addition, the Prosecutor General of the Russian Federation and subordinate prosecutors are obliged to report on the occurrence of a personal interest in the performance of their official duties, which results or may result in a conflict of interest, as well as to take measures to prevent or resolve such conflict in the prescribed manner. For non-compliance by officials of the Prosecutor’s Office with restrictions and prohibitions, requirements on the prevention and settlement of conflict of interest and dereliction of duty established for the purpose of combating corruption, sanctions provided for by the Law on the Prosecutor’s Office shall be imposed. The Prosecutor General of the Russian Federation as a person holding public office of the Russian Federation, First Deputy and Deputies Prosecutor General, prosecutors appointed by the President of the Russian Federation and the Prosecutor General of the Russian Federation are subject to prohibition on opening and operating accounts (deposits), keeping cash and valuables in foreign banks located outside the Russian Federation, owning and (or) using foreign financial instruments established by the Federal Law On the Prohibition of Certain Categories of Persons to Open and Operate Accounts (Deposits), to Store Cash and Valuables in Foreign Banks Located Outside the Russian Federation, to Own and (or) Use Foreign Financial Instruments. Thus, the Prosecutor’s Office of the Russian Federation takes the leading place in the system of anti-corruption authorities, carries out functions of coordination, as well as independently exercises the authority for prosecutorial supervision over the compliance with anti-corruption laws. 148

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The powers of the Accounts Chamber of the Russian Federation are not so clearly aimed at combating corruption, but the tasks specified in the Federal Law on the Accounts Chamber of the Russian Federation describe it as one of the key anti-corruption authorities in the use of federal budget and budgets of state extra-budgetary funds. The powers of the Accounts Chamber of the Russian Federation are aimed at addressing this issue which enables it to determine the effectiveness of disposal of federal and other resources, to evaluate the effectiveness of tax and other benefits and privileges and publicly funded loans, to analyze shortcomings and violations revealed in the area of budget management, to apply measures on prevention and suppression of misuse of budgetary funds. The results of monitoring and analysis are submitted to the President of the Russian Federation, the Russian Federal Assembly and published for public information by the Accounts Chamber of the Russian Federation. National Anti-Corruption Plan for 2016–2017 includes a recommendation to the Accounts Chamber of the Russian Federation to reflect matters relating to the implementation of anti-corruption measures within the established competence in the information on the results of supervisory and expert-analytical measures and the annual report on its activities submitted to the Chambers of the Federal Assembly of the Russian Federation. The Accounts Chamber of the Russian Federation is actively cooperating, including in the form of joint activities, with the highest authorities of state audit (supervision) of foreign states and international organizations. Representatives of the Accounts Chamber of the Russian Federation participate in international events on combating corruption: in meetings and seminars of working groups on anti-money laundering (FATF), International Organizations of Supreme Audit Institutions (INTOSAI, ASOSAI, EUROSAI), Egmont Group, International Anti-Corruption Academy and others, in the implementation of the UN Office on Drugs and Crime initiative «Advancing the United Nations Convention against Corruption as a basis for the implementation of anti-corruption warranties associated with the organization of major public events». 149

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Interaction with the federal executive authorities regarding combating corruption occurs mainly in the form of informing the investigating authorities and the prosecution authorities about violations of the law identified by the Accounts Chamber of the Russian Federation. The Accounts Chamber of the Russian Federation is also entitled to independently make submissions and orders to the heads of organizations inspected by its auditors. In order to prevent corruption offenses, misuse and inefficient spending of budgetary funds in the very early stage of the budget process, the Accounts Chamber of the Russian Federation conducts audits of organizations engaged in pricing, estimated valuation and assessment of the estimated cost of capital construction projects funded with the assistance of the federal budget. Such audits have shown that the existing approaches to pricing and indexation in construction lead to an overestimation of planned budgetary investments. Anti-corruption issues are considered in the preparation of findings on draft regulatory legal acts submitted to the State Duma, which specify corruptogenic factors and propose measures for their elimination. The Accounts Chamber of the Russian Federation noted the existence of numerous systemic problems in the area of privatization of state and municipal property, including the duration and non-transparency of individual administrative procedures for privatization. Auditors of the Accounts Chamber of the Russian Federation in conducting supervision activities note the following major corruption risks in the public contract system: unreasonable initial maximum price contracts, limited access to information on announced procurement, creation of preferential conditions in the tender documentation for «friendly» supplier, introducing changes to already concluded contracts, creating special privileges for counterparty, acceptance of backlogs and other. In addition, the Accounts Chamber of the Russian Federation maintains a registry of beneficial owners of offshore companies that receive budgetary funds in various forms. Thus, the special place occupied by the Prosecutor’s Office and the Accounts Chamber of the Russian Federation in the system of Russian authorities provides an opportunity to implement special and highly effective anti-corruption measures. 150

§ 4. Role of state power bodies of the constituent entities of the Russian Federation...

§ 4. ROLE OF STATE POWER BODIES OF THE CONSTITUENT ENTITIES OF THE RUSSIAN FEDERATION AND BODIES OF LOCAL SELF-GOVERNMENT IN COMBATING CORRUPTION

The institutional component of combating corruption in the regions (irrespective of the specific constituent entity of the Russian Federation) may be represented as follows: – public authorities of the constituent entity of the Russian Federation coordinating anti-corruption activities in the constituent entity of the Russian Federation; – permanent executive authorities of the constituent entity of the Russian Federation responsible for the implementation of anticorruption policy; – special structural divisions, departmental working groups, advisory and expert committees established under public authorities of constituent entities of the Russian Federation; – territorial agencies of federal government bodies involved in the implementation of state policy in the area of combating corruption in constituent entities of the Russian Federation; – civic institutions, including of public control1. At the same time, each constituent entity of the Russian Federation has a certain specific character of corruption risks, the structure of acts of corruption and methods of their commission. Therefore a common approach to determination of a system of bodies responsible for the implementation of anti-corruption activities in constituent entities of the Russian Federation has not been developed. The diversity of organizational models used by constituent entities of the Russian Federation does not allow summarizing their experience in the formation of organizational structure for combating corruption to the required extent. Institutional framework of anti-corruption activities is directly determined by anti-corruption laws of constituent entities of the Russian Federation. A characteristic feature of constituent 1

It should be noted that the last two components, though not always endowed with appropriate powers de jure, in fact regularly take part in the implementation of anti-corruption measures due to the nature of their activities.

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entities of the Russian Federation is charging all the higher public authorities of constituent entities of the Russian Federation with duties to address anti-corruption issues. At the same time, however, in different regions the scope of specific powers of these authorities varies significantly. Thus, Law of the Ulyanovsk Region dated July 20, 2012 No. 89-ZO On Combating Corruption in the Ulyanovsk Region establishes sufficiently clear institutional framework for combating corruption1 (Art. 3). It determines the role of almost all higher public authorities and officials (the Governor, the Legislative Assembly, the Government, the Accounts Chamber, the executive public authorities, as well as the Commissioner) involved in implementation of a unified state policy in the sphere of combating corruption. Similarly, in terms of detailed regulation the institutional framework for combating corruption is provided for in the laws on combating corruption of some other constituent entities of the Russian Federation2. However, the laws of most constituent entities of the Russian Federation determine only some elements of the institutional framework, the emphasis is mainly given to legislative consolidation of the role of coordination and (or) advisory (consultative) bodies in the field of combating corruption, as well as executive public authorities of constituent entities of the Russian Federation expressly authorized in this area. Basically regulation of institutional framework for combating corruption in these constituent entities is carried out through substatutory acts, mainly in the acts of senior public officials of constituent entities of the Russian Federation. For example, according to Oryol Region Law dated April 10, 2009 No. 893-OZ On Combating Corruption in the Oryol Region3 (Art. 9), to implement anti-corruption policy, to ensure interaction between the authorities of anti-corruption policy, the Anti-Corruption 1

Ulyanovskaya Pravda. 2012. No. 78.

2

E.g., see: Republic of Bashkortostan Law dated July 13, 2009 No. 145-z On Combating Corruption in the Republic of Bashkortostan // Bulletin of the State Assembly - Kurultai, the President and the Government of the Republic of Bashkortostan. 2009. No. 17 (311). Art. 1087; Yaroslavl Region Law dated July 9, 2009 No. 40-z On Anti-Corruption Measures in the Yaroslavl Region // Gubernskiye vesti. 2009. No. 61; Tomsk Region Law dated July 7, 2009 No. 110-OZ, On Combating Corruption in the Tomsk Region // Official Gazette of the Tomsk Region. 2009. No. 7/1.

3

Orlovskaya Pravda. 2009. No. 56.

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Coordination Council shall be established. In addition, to identify the provisions of regional laws conducive to the emergence and spread of corruption, the Council of People’s Deputies of the Oryol Region created the Commission for legislative support of combating corruption, its composition and regulation on it to be approved by the Regional Council of People’s Deputies. In order to create an institutional framework to coordinate the interaction of territorial bodies of federal executive authorities, executive authorities of the Oryol Region and local government bodies, Decree of the Governor of the Oryol Region dated October 13, 2015 No. 545 Concerning Measures on Organization of Activities in the Field of Combating Corruption in the Oryol Region approved the composition and regulation on the Anti-Corruption Coordinating Council in the Oryol Region1. Regardless of differences in the consolidation of institutional framework for combating corruption at the legislative level, a senior public official of the constituent entity of the Russian Federation (head of the highest executive authority of the constituent entity of the Russian Federation) leads efforts to combat corruption in almost all constituent entities of the Russian Federation2. It is this public official who with the help of agencies created, as well as in cooperation with the legislative (representative) authority of the constituent entity of the Russian Federation and the highest executive authority of the constituent entity of the Russian Federation is coordinating the implementation of all state anti-corruption policies at regional level. As for the role of legislative (representative) public authority of the constituent entity of the Russian Federation, it ensures the development and adoption of laws of the constituent entity in the field of anti-corruption policy and supervises the activities of regional executive authorities within their powers on the implementation of these laws. The highest executive public authority of the constituent entity of the Russian Federation coordinates and directs work of executive authorities subordinate to it on the prevention of corruption.

1

URL: http://www.pravo.gov.ru

2

Hereinafter - the Head of the constituent entity of the Russian Federation.

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The system of public authorities of the constituent entity of the Russian Federation allocates the authority responsible for the implementation of anti-corruption measures. The scope of powers conferred on it and, consequently, the degree of its involvement in the implementation of anti-corruption measures varies across regions. In general, specialized agencies not involved in the performance of functions other than combating corruption are established under the Head of the constituent entity of the Russian Federation. This approach provides the greatest efficiency in the implementation of state anti-corruption policies at regional level. At the same time, other authorities and bodies are also expected to participate in the activities in the field of combating corruption. Such an approach in the formation of institutional framework of the constituent entity of the Russian Federation is applied in the Model Regulation on Constituent Entity’s Authority for the Prevention of Corruption and Other Offenses, approved by Presidential Decree dated July 15, 2015 No. 364 On Measures to Improve Organization of Anti-Corruption Activities1. Thus, in the Lipetsk Region, corresponding functions are entrusted to the Office for combating corruption, supervision and verification of execution of Lipetsk Region Administration decisions, which is granted a wide range of powers2. In the Moscow Region, in accordance with Governor’s Decree dated September 11, 2015 No. 400-PG On the Authority for the Prevention of Corruption and Other Offenses for the Moscow Region, General Directorate of Regional Security for the Moscow Region is assigned as an authority for the prevention of corruption and other offenses. In the Ulyanovsk Region, a considerable part of powers in anticorruption analysis (study) of regulatory legal acts or draft regulatory legal acts and their application practices in order to 1

Official Gazette of the Russian Federation. 2015. No. 29 (p. II). Art. 4477.

2

In particular, it provides: control over execution of anti-corruption plans in the Lipetsk Region and regular anti-corruption monitoring; preparation of annual consolidated report on the state of corruption and implementation of anti-corruption policy in the Lipetsk Region for the head of regional administration; support of Anti-Corruption Coordinating Council of the Lipetsk Region; providing the head of administration of the Lipetsk Region, deputy head of administration of the Lipetsk Region with information required for management decisions, including on anti-corruption matters.

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identify corruptogenic factors therein not identified and (or) not eliminated by public authorities of the Ulyanovsk Region, or their public officials in conducting or on the results of anti-corruption expertise, as well as the rules (provisions) that may result or resulting in the emergence of corruption risk area, are exercised by the Commissioner for Anti-Corruption for the Ulyanovsk Region. He is a member of the Chamber of Justice, which according to Ulyanovsk Region Law dated November 6, 2013 No. 208-ZO On the Chamber of Justice and Public Integrity in the Ulyanovsk Region1 is a permanent public authority of the Ulyanovsk Region. The Commissioner for Anti-Corruption for the Ulyanovsk Region has developed, tested and operates since 2010 a system for monitoring of effective implementation of anti-corruption legal requirements by the executive authorities of the Ulyanovsk Region and local governments of municipalities of the Ulyanovsk Region. This system provides a detailed analysis of the results achieved in a number of indicators: the anti-corruption expertise, the work of commissions on settlement of conflicts of interest, social councils for the prevention of corruption followed by a comprehensive assessment of these results. A peculiarity of some regional anti-corruption models (the Krasnoyarsk Region, the Kirov Region, the Tambov Region, the Republic of Bashkortostan, and others) is assignment of almost all executive authorities of constituent entity of the Russian Federation as responsible executors of anti-corruption activities under anti-corruption plans and programs adopted by constituent entities of the Russian Federation2. Such an approach cannot be considered fully feasible. It is beyond argument that combating corruption is the activity that should cover as much authorities as possible. At the same time, performance of specific activities by an indefinite range of authorities may lead to «overload» of executive authorities, to the need for additional staffing support for these activities, to the difficulties in holding specific authorities liable for their failure. 1

Ulyanovskaya Pravda. 2013. No. 144.

2

E.g., see: Decree of the Governor of the Krasnoyarsk Territory dated April 23, 2015 No. 90-ug On Approval of State Anti-Corruption Program of the Krasnoyarsk Territory for 2015–2017 // Bulletin of the highest public authorities of the Krasnoyarsk Territory. 2015. No. 16 (696).

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In this regard, it seems to be more appropriate to use an approach applied in those constituent entities of the Russian Federation the anti-corruption plans and programs of which provide for a list of specific executors (public authorities depending on their specialization)1. Taking into account the fact that the structure of corruption in various constituent entities of the Russian Federation has its own features, those responsible for implementing anticorruption activities shall be determined based on the most corruptprone areas of public relations. In addition to these authorities, basic executors shall include bodies of financial and economic supervision (control and accounting bodies of the constituent entity), territorial justice agencies for the constituent entity of the Russian Federation and law enforcement agencies. Taking into account composition of the authorities that determine the institutional framework for combating corruption, it is necessary to establish coordinating bodies, as well as to determine the mechanisms for coordination of all subjects of anti-corruption policy in the regions. In the majority of constituent entities of the Russian Federation, such coordinating bodies (commissions, committees, etc.) have been established and are operating. For a long time, there were some basic organizational models for coordination of anti-corruption activities in the constituent entities of the Russian Federation: – assignment of coordination function completely to the administration of highest public official of the constituent entity2; – execution of coordination powers by the supreme executive public authority of the constituent entity of the Russian Federation;

1

E.g., see: Resolution of the Cabinet of Ministers of the Republic of Tatarstan dated July 19, 2014 No. 512 On Approval of the State Program «Implementation of Anti-Corruption Policy in the Republic of Tatarstan for 2015-2020» // Reports of ordinances and resolutions of the Cabinet of Ministers of the Republic of Tatarstan and legal acts of the republican executive authorities. 2014. No. 58–59. Art. 1789.

2

E.g., see: Decree of the Governor of the Perm Territory dated September 21, 2015 No. 133 On Measures to Improve Organization of Anti-Corruption Activities // Bulletin of laws of the Perm Territory, legal acts of the Governor of the Perm Territory, Government of the Perm Territory, executive authorities of the Perm Territory. 2015. No. 38.

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– establishing special commissions to coordinate anti-corruption measures by public authorities and local self-governments in the territory of the constituent entity of the Russian Federation. Selecting the most effective model by each specific constituent entity of the Russian Federation depended largely on socio-economic opportunities in the region and availability of appropriate human resources. At the same time, the adoption of Presidential Decree dated July 15, 2015 No. 364 On Measures to Improve Organization of Anti-Corruption Activities1, which approved Model Regulations on the Commission to Coordinate Anti-Corruption Activities in the constituent entity of the Russian Federation, as well as on Constituent Entity’s Authority for the Prevention of Corruption and Other Offenses, has influenced the harmonization of institutional model in terms of determination of the said bodies and authorities. Almost all of the constituent entities of the Russian Federation operate commissions on coordination of anti-corruption activities under the Heads of the constituent entities of the Russian Federation as permanent authorities. In the majority of constituent entities of the Russian Federation the status of such coordinating bodies is directly determined by the laws. Thus, according to Law of the Republic of Tatarstan dated May 4, 2006 No. 34-ZRT On Combating Corruption in the Republic of Tatarstan,2 activities in the implementation of anti-corruption policy shall be organized by special public authority in accordance with regulations approved by the President of the Republic of Tatarstan. Such permanent authority under the President of the Republic is the Commission on coordination of anti-corruption activities in the Republic of Tatarstan, which carries out work in cooperation with the Presidential Anti-Corruption Department and ensures coordination of executive authorities of the Republic of Tatarstan and local governments, as well as their interaction with the territorial bodies of federal government agencies3. 1

Official Gazette of the Russian Federation. 2015. No. 29 (p. II). Art. 4477.

2

Bulletin of the State Council of Tatarstan. 2006. No. 5. Art. 1464.

3

See: Decree of the President of the Republic of Tatarstan dated October 13, 2015 No. UP-986 On the Commission on Coordination of Anti-Corruption Activities in the Republic of Tatarstan // Reports of ordinances and resolutions of the Cabinet of Ministers of the Republic of Tatarstan and legal acts of the republican executive authorities. 2015. No. 78. Art. 2688.

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Assignment of coordination function to special bodies is quite justified, because it allows minimizing the possibility of corrupt practices in the executive public authorities of constituent entities of the Russian Federation themselves. Otherwise, assignment of coordination functions to bodies, which at the same time develop, implement and supervise anti-corruption measures may itself create some potential for corruption. A positive aspect of establishing a specialized institution to control and coordinate reduction of corruption level in constituent entities of the Russian Federation is the availability of own scope of jurisdiction and powers that allow not to overburden the executive authorities in constituent entities of the Russian Federation with additional functions. Another fact that supports establishing a special coordinating body it that the distribution of anti-corruption functions among various already functioning executive authorities leads to a situation where it is impossible to determine which authority and to what extent shall be held accountable for non-performance of program activities, at the same time the very possibility of tracking their performance is hindered. Establishment of coordinating bodies in the field of combating corruption under the Head of the constituent entity of the Russian Federation is justified due to the fact that the Head is endowed with general coordinating powers on the territory of the constituent entity of the Russian Federation which govern not only the regional state executive system, but also organization of activities of territorial bodies of federal executive authorities and local government bodies. Implementation of anti-corruption policy on the territory of any constituent entity of the Russian Federation involves not only its public authorities, but also the territorial divisions of federal executive authorities and social institutions. In particular, some work is carried out by prosecution authorities, territorial bodies of federal executive authorities in the field of policing, tax authorities and others. In addition, optimality of this form of coordination is achieved due to the opportunity of higher public official of the constituent entity of the Russian Federation to promptly and directly communicate with authorized representatives of the Russian President in the federal districts. 158

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In a number of constituent entities of the Russian Federation, the public authorities of the constituent entities and territorial bodies of federal executive authorities operating on their territory have signed agreements on cooperation, which help to ensure coordination in the implementation of anti-corruption measures1. Under these agreements, the parties agree to cooperate on the following matters: – efficient exchange of information provided within the competence of each party through regular working meetings between representatives of structural subdivisions of the parties executing functions of ensuring economic security and anticorruption activities and assistance in verification of statements, reports and other information; – quarterly transfer of information to the competent authorities of Press and Information Communications of the constituent entity to be published in mass media in order to ensure citizens’ access to information on the state of combating corruption in the constituent entity of the Russian Federation provided within the competence of each party. In the Tyumen Region, on the grounds of similar agreement there is a weekly exchange of information with the territorial bodies of the Ministry of Justice and the Prosecutor’s Office of the Tyumen Region. Another element of anti-corruption institutional infrastructure is the establishment of special expert groups or expert councils on combating corruption in a number of constituent entities of the Russian Federation. Such bodies may be established by the Heads of constituent entities of the Russian Federation, as, for example, in

1

For example, in the Astrakhan Region, in order to organize effective prevention, including identification and subsequent elimination of corruption causes, on September 18, 2009 an Agreement on mutual cooperation was signed by and between the Astrakhan Region Prosecutor’s Office, Federal Security Service Directorate for the Astrakhan Region, Directorate of the Federal Tax Service of the Russian Federation for the Astrakhan Region, Department of Internal Affairs of the Astrakhan Region, Territorial Directorate of the Federal Service for Financial and Budget Supervision in the Astrakhan Region, Office of the Federal Antimonopoly Service of the Astrakhan Region, Controlling and Auditing Service of the Astrakhan Region, Agency for Press and Information Communications of the Astrakhan Region, Security and Information Protection Service of the Astrakhan Region to prevent corruption (Collection of laws and regulations of the Astrakhan Region. 2009. No. 45).

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the Republic of Tatarstan1, and the legislative (representative) public authorities of constituent entities of the Russian Federation, as in the Kaluga Region2. At the same time, the objectives and areas of activity of these expert bodies differ. Thus, the Republican Expert Group in the Republic of Tatarstan has been established to analyze the condition and identify the causes of corruption, study organizational effectiveness of anticorruption measures, develop proposals to eliminate the background for corruption, minimize the consequences of corruption offenses and improve anti-corruption work in the Republic of Tatarstan. As for the Expert Council of the Legislative Assembly of the Kaluga Region on anti-corruption, its main objectives are narrower in nature – monitoring of the application of laws of the Kaluga Region and regulations of the Legislative Assembly of the Kaluga Region in order to identify corruptogenic factors therein, as well as preparation of proposals on improvement of the Kaluga Region legislation in the field of legal support for combating corruption. It is also worth noting such important elements of the institutional framework for combating corruption in constituent entities of the Russian Federation as subdivisions of personnel departments for the prevention of corruption and other offenses created by public authorities of constituent entities of the Russian Federation, or public officials of personnel departments of these bodies responsible for the work on prevention of corruption and other offenses, as well as Commissions on compliance with the requirements to official conduct of civil servants and settlement of conflicts of interest established in these bodies. They address anti-corruption issues within their assigned powers relating to supervision over the state civil service, including the observance of anti-corruption standards by civil servants of constituent entities of the Russian Federation. In addition to these institutions, the subjects of anti-corruption policy in the regions may include other advisory and expert bodies, which comprise representatives of interested public authorities, 1

See: Tatarstan President’s Decree dated June 2, 2012 No. UP-415 On the Republican Expert Group on Anti-Corruption // Bulletin of the State Council of Tatarstan. 2012. No. 6 (part II). Art. 826.

2

See: Resolution of the Legislative Assembly of the Kaluga Region dated October 29, 2009 No. 1441 On Expert Council of the Legislative Assembly of the Kaluga Region on Anti-Corruption // Vest. 2009. No. 424–426.

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public associations, scientific, educational and other organizations and individuals specializing in the study of problems of corruption. In recent years, control and accounting bodies and election commissions of constituent entities have been more and more actively involved in the implementation of anti-corruption policy in constituent entities of the Russian Federation, thereby increasing the efficiency of combating corruption. Thus, the analysis of institutional framework for combating corruption in constituent entities of the Russian Federation demonstrates that in general, despite the diversity of organizational models for combating corruption, they are characterized by the focus on multi-subject institutional framework while enhancing supervisory and coordinating functions by specially established commissions under the Heads of the constituent entities of the Russian Federation. Mechanisms for development, implementation and monitoring of anti-corruption activities are based on an integrated, multi-agency approach involving joint efforts and coordination of these activities by various authorities of the constituent entities of the Russian Federation. Procedural and institutional model of anticorruption policy approved-in-principle in constituent entities of the Russian Federation, in which a specialized body is accountable to the Head of the constituent entity of the Russian Federation, promotes consistency of methodological support for anti-corruption work of local governments, administration of the constituent entity of the Russian Federation and territorial bodies of federal public authorities. Analysis of the institutional framework for combating corruption at the municipal level shows that it is largely focused on the procedural and institutional model of anti-corruption policy prevailing in the corresponding constituent entity of the Russian Federation. This is due to the fact that combating corruption at the municipal level takes place in line with the common system. At the same time, the existing institutional schemes of building anticorruption models differ depending on the type of municipality – it is more developed at the level of municipal districts and city districts (city districts with intra-city division) and is more limited in nomenclature of its constituent authorities on the level of settlements, especially in rural areas. Additionally, the fact that 161

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the level of corruption and manifestation of corruption risks in each municipality is different, is considered in building the institutional framework for combating corruption. The main role at the municipal level belongs to the head of municipality (head of local administration). He/she coordinates all work on the prevention of corruption at the municipal level. Support of combating corruption rests, as a rule, on one of the functional or branch divisions of the local administration (legal divisions, human resources services of local governments, organizational department, etc.) of the respective municipalities1. In municipal districts and city districts, an anti-corruption council or commission is created under the head of the municipality as a permanent advisory body established to coordinate the activities of the authorities of local government of the municipality. At the same time, the status of council in different municipalities varies: in some of them it serves as a consultative coordinating body under the head of the municipality2, in others it has functions of Commission on compliance with the requirements to official conduct and settlement of conflicts of interests in respect of persons holding municipal office3. In the first case, Commission on compliance with the requirements to official conduct and settlement of conflicts of interests in respect of persons holding municipal office becomes an additional element of the institutional framework4. In practice, especially in thinly populated rural settlements, it is sometimes impossible to ensure compliance with legal requirements on the availability of the Commission on compliance with the 1

E.g., see: Order of the Arkhangelsk Mayor’s Office dated March 29, 2012 No. 170r On Consideration of Law Enforcement Practices in the Prevention of Corruption by Arkhangelsk Mayor’s Office // Document has not been published. ConsultantPlus Legal Reference System.

2

E.g., see: Resolution of the Head of the Murom District dated October 8, 2010 No. 2259 On Establishing Anti-Corruption Council under in the Administration of Murom District and Its Structural Divisions // Muromsky Krai (documents, issue No. 80). 2010. No. 165.

3

E.g., see: Resolution of the Arkhangelsk Mayor dated October 5, 2012 No. 322 On Establishment of Anti-Corruption Council Under the City Mayor // Arkhangelsk - City of Military Glory. 2012. No. 94; Resolution of the Administration of Kotlas municipality dated August 23, 2012 No. 2756 On Anti-Corruption Council in Kotlas Municipality // Dvinskaya Pravda. 2012. No. 126.

4

E.g., see: Resolution of the Head of Podolsk Municipal District of the Moscow Region dated July 3, 2014 No. 670 On Establishing the Commission on Compliance with the Requirements to Official Conduct of Municipal Employees and Settlement of Conflicts of Interest in Administration and Administration Authorities of Podolsk Municipal District // Business Newsletter Zemlya Podolskaya. 2014. No. 27 (supplement to the newspaper Zemlya Podolskaya).

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requirements to official conduct and settlement of conflicts of interest in respect of persons holding municipal positions in each municipality due to the lack of qualified personnel. In this case, as a rule, consideration of issues relating to municipal officials of this settlement administration related to compliance with the requirements for official conduct and (or) the requirements for settlement of conflicts of interest, is transferred on the basis of agreements between the settlement and municipal district to the level of the Commission on compliance with the requirements to official conduct of municipal officials and settlement of conflicts of interest of the corresponding municipal district1. Anti-corruption expertise of regulatory legal acts of local selfgovernment is carried out with a view of identification (prevention) and subsequent elimination of corruptogenic factors in municipal regulatory legal acts and their drafts. Organization of such anticorruption expertise is carried out in different ways. In some cases the corresponding powers are assigned to legal departments of local administration, in others – a commission for anti-corruption expertise of regulatory legal acts of municipal local self-government is established, the composition of which, as a rule, is formed in compliance with the principle of excluding the possibility of a conflict of interest that could affect the commission’s decision2. Problems with carrying out anti-corruption expertise often occur at the level of rural settlements. The reason is the lack of qualified personnel. To resolve this problem, local governments of settlements conclude agreements with local authorities of municipal districts to

1

E.g., see: Resolution of the Kaybitsy District Council dated January 28, 2013 No. 158 On Approval of the Agreement on Transfer of Powers to Implement Anti-Corruption Measures in Terms of Establishment and Operation of a Single Commission on Compliance with the Requirements to Official Conduct of Municipal Officials and Settlement of Conflicts of Interest, as Well as Powers to Deal with Issues Related to Compliance with the Requirements to Official Conduct, and (or) the Requirements for Settlement of Conflicts of Interest in Relation to Municipal Officials Holding Municipal Office in Local Governments of Settlements Belonging to the Kaybitsy Municipal District from Settlements to the Kaybitsy Municipal District // Kaybitskie Zori. 2013. No. 7; Resolution of the Assembly of Representatives of the Kamensky District dated August 28, 2014 No. 377-44/3 On Acceptance of Powers from Settlements of Kamensk District of the Penza Region in the Field of Combating Corruption // Journal of the Kamensk District. 2014. No. 238.

2

E.g., see: Resolution of the Council of People’s Deputies of the Petushki District dated April 17, 2014 No. 26/4 On Approval of Regulation On Implementation of Anti-Corruption Measures within the Boundaries of the Petushki District Municipality // Vpered. 2014. No. 16.

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transfer powers of settlements’ local governments on anti-corruption expertise of municipal regulatory legal acts and their drafts1. Transfer of powers in the field of combating corruption from local governments of settlements to local authorities of municipal districts often occurs in terms of supervisory activities related to legality and effectiveness of disposal and management of municipal property. As a rule, these powers are transferred to control and accounting bodies of the municipal district, if any2. For timely harmonization of regulatory legal acts of local selfgovernment bodies in the district with the federal legislation and legislation of the constituent entities of the Russian Federation, as well as to assess the effectiveness of measures aimed at combating corruption, local governments conduct anti-corruption monitoring. As a rule, these powers are assigned to all or individual structural divisions of local administrations. The procedure for conducting anticorruption monitoring is established by regulatory legal acts of the respective local self-government bodies. Conducting this monitoring contributes to the development of more efficient anti-corruption plans. As part of the preventive work local self-government bodies are tasked with organizing education of anticorruption outlook in the person, reducing legal nihilism and raising legal awareness and legal culture through anti-corruption advocacy. It is a low level of legal awareness that often leads to petty corruption, when citizens not knowing their rights and conditions of their exercise commit acts of corruption to resolve certain problems3. Anti-corruption advocacy is carried out in compliance with the provisions of Federal

1

For details, see: Resolution of the Belogorsk District Council of People’s Deputies dated September 25, 2009 No. 13/282 On Approval of Regulation On Anti-Corruption Measures in the Belogorsk District Municipality // Document has not been published. ConsultantPlus Legal Reference System.

2

E.g., see: Resolution of Administration of the Mednogorsk municipal settlement of the KarachayCherkess Republic dated April 23, 2014 No. 35 On Approval of Action Plan to Combat Corruption in the Mednogorsk Municipal Settlement for 2014-2016 // Document has not been published. ConsultantPlus Legal Reference System.

3

For details, see: Summary analytical report on the subject: Evaluation of the effectiveness of state policy in the sphere of security and combating corruption in the Krasnoyarsk Territory. URL: http:// www.krasimr.ru/pages/107

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Law dated December 27, 1991 No. 2124-I On Mass Media1 and other regulatory legal acts of the Russian Federation governing the relations in the production and distribution of media. It lies in the disclosure of information about the activities of local authorities in the field of combating corruption, the level of corruption, the progress and results of implementation of anti-corruption plans in the municipality. Organization of anti-corruption advocacy is carried out through the interaction of local authorities with civil society institutions; local authorities with public authorities of constituent entities of the Russian Federation, as well as territorial bodies of federal authorities, especially judicial authorities, law enforcement agencies and others. This interaction takes place in view of powers of these authorities established by the laws of the Russian Federation, including through the creation of joint working groups, commissions and other advisory bodies. The analysis of combating corruption in the municipalities demonstrates that the main problems in the organization of this activity include: – violation by local authorities of legal principle of transparency in the establishment of anti-corruption councils and commissions; – lack of legal regulation of interaction between local governments and public authorities of constituent entities of the Russian Federation, territorial bodies of federal executive authorities; – difficulties in the establishment of commissions on compliance with the requirements to official conduct and settlement of conflicts of interest in rural settlements; – inconsistency of methodological support of anti-corruption work of local government bodies with the highest executive authorities of constituent entities of the Russian Federation and federal public authorities2. 1

Gazette of the Congress of People’s Deputies of the Russian Federation and the Supreme Soviet of the Russian Federation. 1992. No. 7. Art. 300.

2

For details, see: Andritchenko L.V., Plyugina I.V. Regulatory and institutional framework for combating corruption in the constituent entities of the Russian Federation // Combating corruption in the constituent entities of the Russian Federation: research and practice guide / L.V. Andritchenko, O.A. Belyaeva, V.I. Vasiliev et al.; edited by T.Ya. Khabrieva. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2013. P. 15–32; Andritchenko L.V. Settlement of conflicts of interest in public and municipal service in the Russian Federation // Combating corruption in constituent entities of the Russian Federation: research and practical guide / edited by T.Ya. Khabrieva. P. 159–174.

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All this makes it necessary to improve the institutional framework for combating corruption in the municipalities. § 5. PARTICIPATION OF CIVIC INSTITUTIONS IN COMBATING CORRUPTION

Participation of civil society in the implementation of anticorruption policy, identification and disclosure of the facts of corruption offenses is one of the effective tools for combating corruption1. This approach is consistent with Article 32 of the Russian Constitution, which establishes the right of Russian citizens to participate in managing state affairs, both directly and through their representatives. Involvement of civic institutions in combating corruption is conditioned by implementation of the principle of information openness and transparency of public authorities’ activities, which is the cornerstone principle of combating corruption. Program anti-corruption state documents (strategies, plans), messages of the President of the Russian Federation suggest close cooperation of civil society and the authorities, their dialogue, which correlates with the provisions of the UN Convention against Corruption (Art. 13) proclaiming that in the effective prevention and elimination of corruption the states should cooperate with each other and rely on civil society and non-governmental organizations. All this confirms the need to consolidate the efforts of state and civic institutions, which can be divided into several groups: Public Chambers of federal, regional and local levels; public councils under the federal executive authorities; expert councils under authorities; self-regulatory organizations; professional associations and nongovernmental organizations; political parties; labor unions; industry workers associations; self-regulatory organizations; creative unions; civil initiative institutions; situation-driven protest institutes; religious organizations; individual citizens. Basic forms of civic institutions participation in combating corruption include: 1

For details, see: Participation of civic institutions in combating corruption: research and practical guide / T.A. Edkova, O.A. Ivanyuk, A.V. Soroko et al.; managing editor Yu.A. Tikhomirov. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2013.

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– public scrutiny, holding public anti-corruption discussions; – identification of negative trends in the implementation of anticorruption measures; – independent anti-corruption investigation, publication of information on corruption offenses; – provision of information which must be mandatorily considered by public authorities and investigated by law enforcement agencies. Active participation of civic institutions in anti-corruption policy promotes correction and optimization of public administration. The established anti-corruption legal framework offers broad opportunities for the development and use of instruments of social participation and control. A new space for dialogue is emerging. For example, currently the following is available: – information and communication channel of government and society – Big (Open) Government that supports the right of citizens to access to documents and activities of the state for the purpose of social control over government regulation. The range of these tasks also includes anti-corruption activities. Portal of public services (www.gosuslugi.ru) contributes to addressing anti-corruption problems in the provision of citizens and businesses with public services that belong to the sphere of public administration with high corruption risks; – mechanism to ensure access to information about the activities of public authorities; – mechanism for publishing court decisions on the Internet; – control over spending of budget resources and reliability of returns (income/expense) of public servants, monitoring of the authorities’ decisions; – independent anti-corruption expertise of draft legal acts and their public discussion, public examination, public consultations – within the Regulatory Impact Assessment (RIA) and Actual Impact Assessment (AIA); – under the federal executive authorities, other public authorities – advisory and consultative bodies, counseling offices, public monitoring of law enforcement and so on. However, there are no uniform rules and technology for assessment of the involvement of civic institutions in anti-corruption activities. The consequence is that feedback becomes imitation. 167

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Thus, despite the fact that the emergence of community councils confirms the strengthening of civic engagement, their effectiveness is limited by the fact that they are not always provided with guarantees of independence from government. Mechanism of an independent anti-corruption expertise established by the Russian Government Resolution dated February 26, 2010 No. 96 On Anti-Corruption Expertise of Regulatory Legal Acts and Draft Regulatory Legal Acts is not elaborated enough. Provision should be made for clear procedure for revision of findings of such anti-corruption expertise with determination of terms for consideration of comments, as well as publication of independent expert reports on the official websites of authorities, etc. Of particular importance is the involvement of business community in combating corruption, as it is this dialogue between business and the state that contributes to making informed decisions to support domestic business. In this regard, such positive point should be noted as the conclusion of an agreement between the Russian Ministry of Economic Development and Russian Union of Industrialists and Entrepreneurs on reference of relevant government documents to consideration by business associations to determine the risks of adverse effects from introduction of new regulation. At the same time, for example, strengthening of such form of interaction between business and government as public-private and municipalprivate partnership requires the determination of extent to which public agreements between public authorities and businesses will be permissible. Lack of clarity in understanding the nature and types of civic institutions and institutional forms that would ensure a stable and broad participation of citizens and their associations in addressing private and public issues is one of the reasons for underutilization of their potential. To create proper feedback, in addition to already existing institutionalization, it is necessary to determine the subject composition, as well as to: develop objectives of interaction (creating conditions for minimizing corruptogenic factors in the system of social relations); establish common rules and algorithm of interaction between representatives of civil society and the state through legal and organizational measures, structural elements that are part of the 168

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mechanism of interaction; provide for techniques for assessment of engagement level of civic institutions; identify areas that should be used in the development of feedback channels between the state and society. Specific criteria, which can help determine the anti-corruption designation of civic institution may include, firstly, the ability of the institution to carry out monitoring of legislation and law enforcement, other expert activities and the need for a public authority to take into account the results of this activity (competency criterion), and secondly, the interest of public authority in cooperation with civic institutions in order to earn the loyalty of citizens. They should also clearly define the range of issues in which representatives of civil society may be involved in combating corruption and establish a form of cooperation between civic institutions and public authorities (mutual assistance, cooperation, business cooperation, etc.) preventing the possibility of undue interference in the activities of public servants. In order to enhance participation of civil society representatives in the implementation of anti-corruption measures it would be expedient to provide funding for anti-corruption measures at the expense of the corresponding budget by allocating grants (subsidies). This can be considered as an incentive in achieving goals set by the state in the sphere of combating corruption. In addition to grants, such incentives may include: – information support of programs, projects, campaigns and other initiatives taken by civic institutions; – state assistance to civic institutions in the establishment and placement on television, radio channels, in print media, on the Internet of various social and journalistic, awareness raising programs targeted at different age and social groups reflecting the positive processes of development of civil society and cooperation of the state and civic institutions in the field of combating corruption; – media coverage of the main outcomes of activities of civic institutions taking the most active part in combating corruption and so on. Achieving the balance of interests of the state and citizens is ensured by means of public control comprising together with state and municipal control the system of social control. 169

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As one of the key anti-corruption mechanisms public control is a guarantee of quality functioning of public authorities and local authorities whose activities should become transparent. Considering the regulatory framework governing the issues of public control as a means of ensuring the rule of law, we should note the narrowness of Article 2 of Federal Law dated July 21, 2014 No. 212-FZ On Fundamental Principles of Public Control in the Russian Federation1 which is limited to the list of kinds of «three-level type» regulatory legal acts: federal, regional and municipal. In this regard, we should also mention the array of international legal acts containing legal foundations of public control and being of direct relevance to the regulation of these relations. Furthermore, the federal level is represented in addition to the Russian Constitution (Art. 30, 32) with a huge layer of regulatory legal acts, either defining the legal status of public control subjects, or formalizing the legal framework for the implementation of its individual forms. At the regional level, there is extensive regulation of public control in almost all regions of Russia. At the municipal level, all types of municipalities are adopting appropriate legal acts within local matters assigned to them. Pursuant to Article 9 of Federal Law On Fundamental Principles of Public Control in the Russian Federation, the subjects of public control include: Public Chambers of federal, regional and local levels; public councils under the federal executive authorities, executive authorities of constituent entities of the Russian Federation, bodies of local self-government; public monitoring commissions, supervisory boards, public inspectorates and other groups of public control. It is noteworthy that citizens are not included in the above list. Despite the fact that in the provisions of p. 2 Art. 4, p. 2 Art. 20 of the Law the legislator uses the term «other subjects of public control», a list of its subjects in p. 1 Art. 9 is comprehensive and is not subject to extensive interpretation. At the same time, participation of citizens in public control is provided both through public associations and other non-profit organizations (p. 1 Art. 3), and personally as public inspectors and public experts (p. 3 Art. 3). From the point of view of legal engineering and formal logic, it is hardly possible to call this concept appropriate. It would be appropriate to specify citizens in p. 2 1

Official Gazette of the Russian Federation. 2014. No. 30 (p. I). Art. 4213.

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Art. 9, which will eliminate legal uncertainty as to their inclusion in the number of public control subjects. Requirements and criteria for engaging public inspector, as well as his rights and the procedure for relations with the inspected object are not clearly defined in the law, which reduces the efficiency of this Federal Law. The uncertainty of citizens’ status as subjects of public control prevents them from fully exercising their powers with regard to initiation of activities, for example, in the form of submission of information requests. This is not consistent with the provisions of other federal laws where participation of citizens in the implementation of various forms of public control is permitted. Sectoral legislation contains a sufficient number of examples of referring citizens to the subjects of public control. We should not forget about such form of citizens’ participation as exercising control over the activities of public authorities through personal appeals (Art. 2 of Federal Law dated May 2, 2006 No. 59-FZ On Handling Appeals of Citizens of the Russian Federation1). The right of citizens to appeal, which is absolute, unlimited and inalienable right of every citizen, represents a kind of dialogue between the citizen and the state. Thus, it remains unclear how the closed list of subjects stipulated by Federal Law On Fundamental Principles of Public Control in the Russian Federation would correlate with the provisions of special laws. We consider it possible and proper in this case to apply the general principle of law, which dates back to Roman law – lex specialis derogat general. Participation of citizens in public control in accordance with the Federal Law On Fundamental Principles of Public Control in the Russian Federation is only possible as experts in conducting public examination provided that the organizer of public examination may engage a specialist for its conduct on a voluntary basis (public expert) or create an expert commission from among public experts with appropriate education and qualifications in various fields of knowledge, if public examination in accordance with the federal law is mandatory.

1

Official Gazette of the Russian Federation. 2006. No. 19. Art. 2060.

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An important role in establishing public control is reserved for the Civic Chamber of the Russian Federation and Public Chambers of constituent entities of the Russian Federation representing a link between citizens and public associations, on the one hand, and the authorities – on the other, that are intended to ensure coordination of socially significant interests of Russian citizens, public associations, public authorities and local authorities to address the most important issues of economic and social development, national security, protection of the rights and freedoms of Russian citizens, the constitutional system of the Russian Federation and the democratic principles of civil society development in the Russian Federation. Regarding the conduct of public examination by the Civic Chamber of the Russian Federation, it should be noted that the list of acts in respect of which it may be carried out is provided for by Art. 18 of Federal Law dated April 4, 2005 No. 32-FZ On the Civic Chamber of the Russian Federation1. It is about draft federal laws, laws of constituent entities of the Russian Federation, regulatory legal acts of the executive authorities of the Russian Federation and legal acts of local self-governments. Pursuant to Art. 19 of the above Law, the conclusions of the Civic Chamber on the results of public examinations, although subject to mandatory review by the relevant public authorities and local authorities, are non-regulatory (advisory) by their nature. The law does not oblige authorities to give a reasoned response in the event of non-acceptance of the comments and suggestions presented. However, federal authorities, public authorities of constituent entities of the Russian Federation and local authorities, their public officials, other public and municipal servants are obliged by law to assist the members of the Civic Chamber in the exercise of powers set out in Art. 25 of the above Law. Parliamentary control as a human rights mechanism is also a form of public control over the activities of public authorities and the appropriateness of their actions in execution of law. Conduct of parliamentary investigations by the State Duma of the Federal Assembly of the Russian Federation is provided among other legally regulated forms of parliamentary control.

1

Official Gazette of the Russian Federation. 2005. No. 15. Art. 1277.

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Legal analysis of Federal Law dated May 7, 2013 No. 77-FZ On Parliamentary Control revealed the shortcomings of parliamentary control. Thus, conducting such control in constituent entities of the Russian Federation and legal monitoring are not included in statutory forms of parliamentary control. It is still an open issue of inclusion of the Accounts Chamber of the Russian Federation, along with the chambers of the Federal Assembly and committees of its chambers in the composition of participants of parliamentary control implementing measures on the preliminary, current and subsequent parliamentary control in the sphere of budgetary relations. It is not clear how the appointment and dismissal of the Chairman of the Accounts Chamber of the Russian Federation and its other officials relates to the form of parliamentary control. The participation of independent experts in the work of commissions on compliance with the requirements to official conduct and settlement of conflicts of interest, which are aimed at eliminating conflicts between private and public interests is also the form of public control. Availability of a variety of independent representatives in the commission suggests that the legislator seeks to make the work of this body more transparent and competent, thus improving the efficiency of its work. However, as confirmed by the law enforcement practice and the opinion of a number of scientists, there are issues related to the activities of independent experts. First, their independence is directly questioned due to the lack of proper statutory mechanism for their selection and engagement that allows suggesting, as mentioned above, their loyalty to the state authorities. Second, there is a lack of specialists in the field of state and municipal service. We believe it appropriate to provide for confirmation of the special competence of experts on the basis of articles on the topic under discussion placed on the Internet and (or) published in media. Third, the lack of a common approach to compensation for transport and other costs of independent experts associated with their participation in the meetings of these commissions involves «closeness» of the commissions. Independent media, being a form of interaction between civil society institutions and public authorities, are also a kind of public auditors of state and municipal authorities, political communicator 173

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and spokesman for the interests and needs of citizens. In pursuit of the interests of obtaining information of state importance and denouncing corruption processes, the media as a real force in combating corruption manifestations must not only bring to the population and the competent public authorities information on violations of rights and legitimate interests of citizens and publicize the facts of abuses and flagrant neglect by public servants, but also promote the best practices in combating corruption improving the level of legal culture and legal awareness of citizens. The effectiveness of anti-corruption interaction of media with the state can be assessed using the indicator of public demonstration of response results to violations by law enforcement agencies. Due to the fact that independent media are one of the main elements of public control over the authorities without which no modern democracy is possible, we believe it appropriate to: – ensure equal conditions of access to information for all media by eliminating any discrimination of media and journalists; – comprehend the concept of denationalization of media with the establishment of Social Fund for the financing of media activities independent from the political environment; – develop Anticorruption Charter of Mass Media similar to the Anti-Corruption Charter of Russian Business which would oblige to provide information space for anti-corruption education and raising awareness about the results of combating corruption; – legislate the obligation of the authorities and law enforcement agencies to respond to anti-corruption media publications. Implementation of civil society monitoring of government activities concerns such an important element of legal system as justice without the active use of which civil society control becomes declarative. The key points in combating corruption are the organization of effective interaction between the court and media and posting maximum information on the court’s activities on the official website. Speaking about the forms of interaction between civil society institutions and public authorities, public administration requires the established use of the following organizational and institutional forms of interaction between civil society institutions and public authorities: anti-corruption expertise; law enforcement monitoring; Regulatory Impact Assessment (RIA) of the decisions on the 174

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development of regulatory legal acts, draft regulations and existing legal acts including Actual Impact Assessment (AIA); public consultations and public debate; platforms for discussion of issues of public life on the Internet, including on the official websites of public authorities; public examination of draft legal acts; publications in mass media; lobbying; pretrial (extrajudicial) appeal; legal education the effectiveness of which depends on active participation of not only governmental but also social structures. Lobbying as a resource of civil society, being a mediative political and legal phenomenon between influential stakeholders (consolidated businesses, public associations, corporations, etc.) and authorities, provides real opportunity to promote and defend their own rights and legitimate interests at various levels of government using forms and methods not prohibited by law. In our country, lobbying in public consciousness is increasingly acquiring a negative connotation, is consistently associated with protectionism, corporatism (merger of state and business structures), conflict of interest and the phenomenon of «revolving doors», trading in influence, bribery, illegal distribution and redistribution of public resources and funds and other corrupt practices. Indeed, it is quite difficult to distinguish between lobbying and corruption, so it is clear that institutionalization of lobbying activities and regulation of transparent mechanism for alignment of interests of political, economic and other groups in the process of drafting legislation is the most urgent and essential anti-corruption initiative. In many foreign countries, lobbying is a legitimate activity (USA, France, Canada, Australia, Poland, and others). The European Commission for Democracy through Law (Venice Commission), in its Report on legal frameworks for regulation of lobbying in members of the Council of Europe 2011, introduced the definition of lobbying as the actions of individuals or groups of individuals pursuing specific goals and interests, trying to influence the decisions taken at the political level. Attempts to adopt a unified act in Russia were taken in different years (draft federal laws No. 396138-3 dated 2000 On Lobbying Activities in Federal State Bodies and No. 97801795-2 dated 2000 On Legal Framework for Lobbying Activities in Federal State Bodies). 175

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Due to the fact that the need for legal regulation of lobbying activities was provided for by the National Anti-Corruption Plan for 2012–2013 and then was regulated in more detail by the National Anti-Corruption Plan for 2014–2015, the legislative regulation of lobbyism institute brought anti-corruption laws to a whole new level. According to the Presidential decrees, the drafter of the relevant law was the Russian Ministry of Economic Development, which offered its vision of mechanism for interaction of public officials with «lobbyists» by making disparate amendments to certain legal acts. However, the bill does not provide for a coherent legal policy concept in this field, does not contain such system-wide concepts as lobbying, subjects of professional lobbying activities, their legal status, goals and methods of lobbying, objects of lobbying, definition of lobbying activities, legislative formulation of a transparent mechanism for alignment of interests of political, economic and other groups, the extent of their participation, lobbying channels, ethics of lobbyists, which could lead to disruption of system approach in regulation of this activity. Important is the fact that for proper implementation of any legal act, social prerequisites for its entry into force should mature in the society. An important form of interaction and dialogue between the state and civil society is the work of academic community and business. Academic research and the results of research institutions specializing in the study of corruption processes demonstrate the need for consolidation of methodology and techniques of many branches of scientific knowledge (sociology, economics, psychology, law, philosophy, etc.). Only the joint efforts of representatives of social and humanitarian sciences, along with the systemic approach to the study of corruption problems, could be the basis for scientific substantiation of combating corruption concept, establishing the limits of state intervention in public and private spheres, finding the optimal combination of legal and extralegal influence in the implementation of anti-corruption measures the results of which may be reflected in law drafting activities (drafting of laws, changes in federal legislation, participation in public hearings, etc.). As for participation of business in combating corruption, the business community represented by the chambers of commerce and industry, including regional ones, public associations of 176

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entrepreneurs (RUIE, Opora Rossii [Support of Russia], Delovaya Rossiya [Business Russia]) and other civil society institutions (SROs) should also take active part in combating this deviant phenomenon, which is encouraged by Art. 12 of the UN Convention against Corruption and Principle 10 of the UN Global Compact which aim at developing principles of corporate social responsibility to address the most urgent problems of society at both global and local levels. Implementation of these provisions in the Russian legislation should lead to strengthening the role of audit with regard not only to «offering bribes», but also to «demand for bribes». Transition of Russian companies to preparation of the international financial reporting based on the standards recognized in most countries of the world will also have a positive impact not only on strengthening of combating corruption, but also on the Russian economy as a whole. By involving private businesses in combating corruption, establishing requirements for disclosure of information and transparency of transactions, the state simultaneously creates an environment encouraging fair business practices and fair competition. Despite the existing positive trends in statutory regulatory participation of civic institutions in combating corruption, on the one hand, it is necessary to emphasize the existence of certain inconsistency with its actual state on the other hand, and therefore it is possible to agree with the opinion of the Civic Chamber of the Russian Federation as reflected in the Annual Report on the State of Civil Society in the Russian Federation, according to which Russia has not yet completed the process of formation of a mature civil society and strong, effective democratic state. Analysis of exercise by citizens of their constitutional right to take part in the management and administration of state and public affairs, in particular to control state institutions shows that this right of citizens is increasingly causing a lot of conflicts between representatives of different interests, which, in turn, requires efforts to align them. All this places new demands on the right designed to regulate different aspects of citizens’ life, create conditions for active work of civil institutions and promote harmonization of social relations.

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The adoption by public authorities of the Russian Federation of regulatory legal acts that are not always systematic, often contradictory and (or) with legal gaps, ignoring the rules for the use of legal terms of art, not only dramatically reduces the effectiveness of legal system as a whole, but also increases its susceptibility to corruption. The multiplicity of inconsistent regulatory legal acts causes questions from the subjects of law enforcement about the correct application of a rule and its actual action1. Often, there is no feedback system between the result of legislative activity – regulatory legal acts and decisions based thereon2. Translated from the Greek, «technology» (techne) means an art, skill, ability. Dictionaries define technology as a set of inter-related methods, techniques, ways of object activity3. Technologies of combating corruption as a system of methods, ways and means of implementation of anti-corruption regulations are applied at various stages of preparation and adoption of legal regulations and law enforcement and play an important role in timely and systematic identification of defects, errors of law and corruptogenic factors. Due to the lack of a single approach to understanding the nature of combating corruption technologies and their classification in scientific literature and legislation it is worth presenting one of 1

See: Tsirin A.M. Perspective directions of development of anti-corruption laws of the Russian Federation // Journal of Russian Law. 2011. No. 2.

2

Gorokhov D.B., Spector E.I., Glazkova M.E. Legal monitoring: concept and organization: materials on legal issues of overcoming corruption. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2008. P. 227.

3

E.g., see, URL: http://tolkslovar.ru/t2446.html

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established theoretical positions which was based on the level of technology involvement in the relevant processes. Thus, technologies are proposed to be subdivided into three types: system-wide, special and coordinating1. System-wide technologies aimed at ensuring proper quality of adopted regulations and efficient law enforcement practices include: legal drafting, legal monitoring, legal examination, legal forecasting. Special technologies contributing to the prevention and suppression of corruption include anti-corruption monitoring; anticorruption expert examination of regulatory legal acts and their drafts. Coordinating technologies include: Regulatory Impact Assessment (RIA), information and legal technologies for legislation systematization and processing of legal data, etc. We believe that contemporary RIA technology, as well as recently introduced Actual Impact Assessment (AIA) carried out on the basis of reports of the Ministry of Economic Development of Russia, experts and representatives of business community, as additional practical tools to improve quality, effectiveness and efficiency of legal regulation and to improve conditions for business and investment activities, should be referred not to coordinating technologies, but rather to methods related to direct suppression and prevention of corruption. The imposition of excess duties, prohibitions and restrictions in the sphere of entrepreneurial and other economic activities, the establishment of uncertain and burdensome requirements for individuals and organizations, the creation of conditions leading to unreasonably high financial encumbrance of natural and juridical persons, constitute apparent corruptogenic factors2. 1

See: Khabrieva T.Ya. Scientific approaches to the development of modern standards and technologies to counter corruption // Journal of Foreign Legislation and Comparative Law. 2014. No. 3. P. 404–413; Contemporary standards and technologies to counter corruption: Materials of the Third Eurasian Anti-Corruption Forum (Moscow, April 24–25, 2014) / S.Ye. Naryshkin, T.A. Golikova, T.Ya. Khabrieva et al; managing editor T.Ya. Khabrieva. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015. P. 35.

2

See: Methodology of anti-corruption expert examination of regulatory legal acts and draft regulatory legal acts approved by the Russian Government Resolution dated February 26, 2010 No. 96 On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts.

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In turn, coordinating technologies that are used to achieve coherence and alignment between applied technologies and share a common goal may be supplemented with information technology for the promotion of anti-corruption ideas and views1 and specialized automated systems for countering corruption in the federal state bodies providing publicity and transparency of their activities2. Despite the flexibility of the above classification, it may be noted that the task of improving the efficiency of legislation in the sphere of combating corruption can only be achieved with efficient use of all types of technologies. These can be both proven (traditional) and modern technologies, including legal ones, which ensure the high quality of regulatory legal acts and regulatory stability, as well as provide an opportunity to systematically and consistently influence the law-making and law enforcement practice3 by excluding errors of law or correcting them, if any. In this description legal technologies shall mean a system of scientifically substantiated techniques, methods and other legal instruments, as well as the procedures for their use, that allow applying the required resources (financial, organizational, staffing, etc.) to ensure the effectiveness of legal decisions4. The effectiveness of combating corruption is largely conditioned by comprehensive professional analysis of regulatory legal acts, their practical application and functional use of the full arsenal of technologies. Jurisprudence has paid due attention to issues of assessing the effectiveness of legal regulations since the Soviet era. An invaluable contribution to the study of this matter, especially in the development of theoretical problems of sociology of law, was 1

For details, see: Talapina E.V., Antopolsky A.A. Information support for combating corruption. Overview of legislation of the Russian Federation. M., 2009.

2

For example, the official website of the Russian Federation for posting information about placing orders. URL: http://zakupki.gov.ru/; portal of state and municipal services. URL: http://www. gosuslugi.ru/ru/

3

«Without the process of implementation the law would have lost sense, because the provisions contained in legal acts relate to the sphere of due; and the reality, things existent show how and to what extent legal provisions are put into practice» (Alekseev S.S. State and Law. M., 1993. P. 42.)

4

Khabrieva T.Ya. Modern legal technologies in the theory and practice of law making and law enforcement // Efficiency of law making and modern legal technologies / managing editor T.Ya. Khabrieva. M., 2009. P. 4.

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made by employees of the Institute of Legislation and Comparative Law under the Government of the Russian Federation1. Classic time-proven technologies, which ensure high quality of legal regulation and public administration, as well as the effectiveness of anti-corruption decisions, include legal drafting responsible for legal and technical content of the legal act. In this regard, let us consider the rules of legal drafting that include everything about execution principles and methods, search for optimal structure of the act, comprehensiveness of legal material in the draft text of a legal act2. The level of legal drafting actually determines the level of civilization of a society3. Legal drafting technique prevents the possibility of inclusion of corruption provisions into a regulatory legal act at all stages of its preparation, ranging from the formation of ideas and concepts of regulatory legal act, search and organization of pre-drafting regulatory and legal information to the rules of amending and methods of preparation of the accompanying documents4. 1

E.g., see: Samoschenko I.S. On the notion of efficiency of legal norms // Bulletin of All-Union Research Institute of Soviet Legislation. Issue 18. M., 1969; Nikitinskiy V.I., Vengerov A.B. On the basics of methodology and methods of studying the efficiency of effect of legal norms // Bulletin of All-Union Research Institute of Soviet Legislation. Issue 25. M., 1971; Shlykov S.A. On the content of concept of legal regulations effectiveness // Problems of improvement of Soviet legislation. AllUnion Research Institute of Soviet Legislation. Proceedings. 8. 1977; Nikitinskiy V.I. Effectiveness of labor law. M., 1971; Samoschenko I.S., Nikitinskiy V.I., Vengerov A.B. On the basics of methodology and methods of studying the efficiency of effect of legal norms // Bulletin of All-Union Research Institute of Soviet Legislation. Issue 25. M., 1971; Effectiveness of legal regulations / V.N. Kudryavtsev, V.I. Nikitinskiy, I.S. Samoschenko, V.V. Glazyrin. M., 1977; M., 1980; Tikhomirov Yu.A. Theory of law. M., 1982; Lapaeva V.V. Case studies in Law. M., 1987; Effectiveness of laws. Methodology and case studies / managing editor V.M. Syrykh, Yu.A. Tikhomirov. M., 1997; Tikhomirov Yu.A. Action of law. M., 1992; How to apply the law / chief editor Yu.A. Tikhomirov. M., 1993; Lawmaking in the Russian Federation: research and practical study guide / edited by A.S. Pigolkin. M., 2000; Syrykh V.N. Forecasting the effectiveness of law // Sociology of law: textbook. M., 2002.

2

For details, see Yurtaeva E.A The Law on Normative Legal Acts and the Practice of Russian Lawmaking // ConsultantPlus Legal Reference System

3

See, for example: Anners E. History of the European Law. M., 1994. P.7; Gorokhov D.B., Spector E.I., Glazkova M.E. Legal monitoring: concept and organization: materials on legal issues of overcoming corruption. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2008. P. 227.

4

Legal and technical basics of law-making and law enforcement are paid sufficient attention to in the works of the Institute: in the monograph «Doctrinal bases of legal writing» (2010) the role and function of knowledge of legal writing in ensuring the efficiency of legal regulation are conceptualized in detail, in the monograph «Rule-making legal writing» (2011) special emphasis is made on the analysis of the design preparation features of the text of a regulatory legal act.

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It appears that the following aspects of legal drafting are relevant in combating corruption: – logical and theoretical framework for structuring legal acts, formulation and preparation of definitions, language and graphic rules (to avoid inclusion of corruptogenic provisions1 and lawmaking errors2 in the regulatory legal act); – technical and legal aspects of systematization of Russian legislation in order to eliminate conflicting and overlapping provisions and gaps in the legal regulation3; – methodology of legal forecasting, planning and examination. In our opinion, due to the fact that compliance with the rules of legal drafting is an important factor in increasing the effectiveness of laws, lack of Federal Law On Regulatory Legal Acts4 today should be compensated by using the rules developed by the legal doctrine5, and Guidelines for legal and technical execution of bills (Letter of administration of the State Duma of the Federal Assembly of the Russian Federation dated November 18, 2003 No. vn2-18/490). As a separate area of anti-corruption activities, consideration should be given to such advanced legal technology as legal monitoring which is one of the main tools to increase the efficiency of legal regulation, to ensure proper quality of regulatory legal acts and their implementation6. Legal monitoring is in fact a feedback channel between the state and society which is a complex structural and analytical-information mechanism for analysis and assessment of «life cycle» of a law or 1

For details, see: Legal Drafting: study guide / edited by T.Ya. Khabrieva, N.A. Vlasenko. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2009.

2

In the classification of lawmaking errors V. Syrykh determined legal, logical and grammatical errors. See: Syrykh V. Russian legislation: problems and prospects. M., 1995. P. 390–395.

3

See: Spector E.I. Some aspects of application of the concept of analogy in administrative law // Law and Economics. 2002. No. 7.

4

The Institute has been developing a draft federal law On Regulatory Legal Acts in the Russian Federation for over ten years. Some embodiments thereof have already been the subject of consideration in the chambers of the Federal Assembly, the Government of the Russian Federation and the Ministry of Justice.

5

This was the legal doctrine, which developed issues of legal drafting to the fullest extent.

6

See: Gorokhov D.B. Legal monitoring in the field of ecology // Journal of Russian Law. 2015. No. 12. P. 59–69; Gorokhov D.B., Spector E.I., Glazkova M.E. Legal monitoring: concept and organization // Journal of Russian Law. 2007. No. 5. P. 30–34; Legal monitoring: research and practical guide / edited by Yu.A. Tikhomirov, D.B. Gorokhov. M., 2009. P. 15–28.

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other legal act at all stages of its creation and application1. The lack of such cyclicality of legal development leads to disruption of a «legal chain», illusory and fragmentary nature of legal regulation2. In terms of etymology, the word ‘monitoring’ means systematic activities aimed at collection, compilation, analysis and assessment of information to support the adoption, amendment, and repeal of regulatory legal acts3. In turn, the main purpose of legal monitoring is to identify the effectiveness of legal acts, to provide recommendations on further improvements and to optimize legal system as a whole. Since the framework for organization and conduct of legal monitoring is not stipulated at the legislative level, in practice and in modern jurisprudence, there is no unified position on the terminology, and research cannot be carried out without harmonization of terms – this is a sine qua non. Frequently used separately, the terms «monitoring of law enforcement», «monitoring of law enforcement practice», «monitoring of legislation», «monitoring of law», «monitoring of regulatory legal acts» do not cover any rule-making stage, or law enforcement stage, although those who use these terms do not just accept the process of rule-making and enforcement in monitoring but imply and take it into account. Scientific generalization allows categorizing legal monitoring as a system of information observations, which enables to analyze and evaluate: 1) the results of law drafting activity (law-making process); 1

For details, see: Khabrieva T.Ya. Economic and legal analysis: methodological approach // Journal of Russian Law. 2010. No. 12; Khabrieva T.Ya. Modern legal technologies in the theory and practice of law making and law enforcement // Efficiency of law making and modern legal technologies / managing editor T.Ya. Khabrieva. M., 2009. P. 4; Legal means of combating corruption: research and practical guide / managing editor N.A. Vlasenko. M., 2012. P. 24–51.

2

For details, see: Tikhomirov Yu.A. Effectiveness of law: from goal to result // Journal of Russian Law. 2009. No. 4. P. 6.

3

Monitoring of law enforcement by virtue of the Regulation on Monitoring of Law Enforcement in the Russian Federation approved by Presidential Decree dated May 20, 2011 No. 657 involves a comprehensive and planned activities undertaken by federal executive authorities and public authorities of constituent entities of the Russian Federation within their powers on collection, compilation, analysis and assessment of information to support the adoption (issue), amendment and repeal (cancellation) of legislative and other regulatory legal acts of the Russian Federation to exercise the decisions of the Constitutional Court of the Russian Federation and ECHR resolutions. Monitoring is carried out in accordance with the plan and Procedures of monitoring approved by Russian Government Decree dated August 19, 2011 No. 694 On Approval of Procedures of Law Enforcement Monitoring in the Russian Federation.

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2) the quality of regulatory legal acts adopted by a law-making body in conformity with its law-making competence; 3) the effectiveness of their practical action, implementation (law enforcement process)1. Accordingly, the subject of legal monitoring is not only the current legislation and enforcement practice, but also the legislative drafting activities and other rule-making activities carried out by all branches of government. Legal monitoring is aimed at assessing such important indicators as balance, coordination and stability of legislation and its enforcement, revealing their defects, determining the vector of development of legislation, improving the quality of legislative technique and improving the legislative process2. Components of legal monitoring mechanism include: anticorruption expert examination of regulatory legal acts and their drafts; Regulatory Impact Assessment; Actual Impact Assessment; social research, including surveys of professional experts and public opinion polling. The aim of anti-corruption expertise recognized at statutory3 and substatutory levels4 is a significant reduction in corrupt practices, identification in and elimination from the texts of draft regulations and the texts of regulatory legal acts of uncertainty, excessive 1

Analytical report «Legal Monitoring: concept and mechanism of conduct» (prepared by the employees of the Institute of Legislation and Comparative Law under the Government of the Russian Federation). P. 9–10; Gorokhov D.B., Spector E.I., Glazkova M.E. Legal monitoring: concept and organization // Journal of Russian Law. 2007. No. 5. P. 30–34; Legal monitoring: research and practical guide / edited by Yu.A. Tikhomirov, D.B. Gorokhov. M., 2009; Legal monitoring: acute problems of theory and practice: monograph / D.B. Gorokhov, V.I. Radchenko, N.N. Chernogor et al; edited by N.N. Chernogor. M., 2010; Concepts of development of the Russian legislation / edited by T.Ya. Khabrieva, Yu.A. Tikhomirov. M., 2010. P. 99; Gorokhov D.B. Legal monitoring: concept, areas of institutionalization, state of law and prospects // Law and Economics. 2009. No. 7.

2

For details, see: Khabrieva T.Ya. Stages and main areas of constitutionalization of contemporary Russian law // Constitutional Justice Journal. 2013. No. 6. P. 25–30.

3

By virtue of the provisions of Federal Law dated July 17, 2009 No. 172-FZ On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts the main burden of conducting anti-corruption expert examination rests with the federal executive bodies, the Prosecutor’s Office of the Russian Federation and natural and juridical persons accredited by the Ministry of Justice as independent experts conducting independent anti-corruption expert examination of regulatory legal acts (their drafts) on their own initiative.

4

Russian Government Decree dated February 26, 2010 No. 96 On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts (along with the Rules of anticorruption expert examination of legal acts and draft regulations, Methodology for anti-corruption expert examination of legal acts and draft regulations) (hereinafter - the Methodology).

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discretionary powers, multiplicity of variants for disposition of legal norms, possibility of law enforcer’s discretion and so on. A significant part of corruption offenses occur because of defects in laws and legal acts made either due to an oversight of legislative bodies, or intentionally for the purpose of concealing corrupt practices and schemes. Although it is quite difficult to determine the purpose of identification of corruptogenic factors in draft regulatory legal act or the text of a legal act, codification of corruptogenic norms that are legal in form but illegal per se can be attributed to the presumption of committing unlawful acts. It should be noted that anti-corruption expertise is not an innovation of domestic legislation. The need for systematic and systemic analysis of legislative acts for corruptogenicity has been recognized by the international community. Thus, the 2003 United Nations Convention against Corruption signed and ratified by the Russian Federation contains the following provision on the prevention of corruption: «Each member state shall endeavor to periodically evaluate relevant legal instruments and administrative measures with a view to determining their adequacy in terms of corruption prevention and combating it»1. By virtue of the provisions of Law on Combating Corruption, anticorruption expert examination should be attributed to the preventive measure. We believe that the regulatory capacity of anti-corruption expert examination is undoubtedly higher, as evidenced by the provisions of Federal law On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts. Anti-corruption expert examination is a synthesis of preventive and control measures for combating corruption aimed both at establishing the legislation that prevents the commission by public officials (servants) of corrupt transactions, reduces corruption risks, 1

The authors of the idea of anti-corruption expert examination of regulatory legal acts and draft regulatory legal acts that emerged in 2002-2003 were the experts of INDEM Foundation, the Accounts Chamber of the Russian Federation, as well as professors of the Higher School of Economics. It was at that same time when the concept of «corruptogenicity of legislation» which means the ability to use legal norms for personal gain, the possibility of unreasonable bringing to legal liability or evading it was introduced into scientific use. In 2004, the Handbook of Expert on Primary Analysis of Legislative Act for Corruptogenicity was published; in 2006 the said Handbook was amended to allow applying it in the analysis of subordinate regulatory legal acts and administrative regulations.

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excludes arbitrary interpretation and the provisions creating a breeding ground for abuse in the future, and at improving the law enforcement practice by identifying corruptogenic factors directly in the regulatory legal acts. Nevertheless, the scope of anti-corruption expert examination actually does not cover legal acts related to particular persons, though they provide massive opportunities for corruption by public officials, as well as law-making treaties (agreements) and their drafts. By comparing all past and current methods of anti-corruption expert examination1, their analysis suggests that those previously used contained a more detailed list of corruption factors, including: – factors of systemic nature that can only be identified in comprehensive analysis of the draft document2; – factors related to legal gaps. As for the independent anti-corruption expert examination, its further effective introduction is only possible with a clear identification and resolution of such practical problem as elimination of insufficient elaboration of the mechanism of its conduct and consideration of its results. We think it appropriate to provide for the statutory procedure for examining the conclusions of an independent anti-corruption expert examination of draft regulatory legal acts with the determination of terms for fulfilling comments and publication of independent expert reports on the official websites of authorities, etc3. 1

Russian Government Decree dated March 5, 2009 No. 195 On Approval of the Rules for Expert Examination of Draft Regulatory Legal Acts and Other Documents to Identify the Provisions Conducive to Creation of Conditions for Corruption, Russian Government Decree dated March 5, 2009 No. 196 On Approval of the Procedure for Expert Examination of Draft Regulatory Legal Acts and Other Documents to Identify the Provisions Conducive to Creation of Conditions for Corruption approved the Rules and procedure for anti-corruption expert examination of regulatory legal acts and their drafts. However, at the same time the Government adopted Federal Law On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts which established legal and organizational framework of anti-corruption expert examination, and Government Resolution of the Russian Federation On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts, together with the Methodology for AntiCorruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts, which abrogated the previous resolutions (the above Law and Resolutions are still in effect).

2

Exclusion of these factors from the current Methodology represents a significant loss for anticorruption analysis, as they allowed indicating the possibility of dangerous manifestations of corruption, particularly in conjunction with other factors.

3

See also: Kamenskaya E.V., Rozhdestvina A.A. Independent anti-corruption expert examination: research and practical guide // GARANT Legal Reference System. P. 89; Aleshkova N.P. Principles of anti-corruption expert examination of regulatory legal acts and their drafts // State power and local self-government. 2013. No. 5.

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Improvement of the effectiveness of anti-corruption expert examination of legislation would be contributed by its more precise differentiation by content, results and consequences from legal examination1. Current methodological framework of anti-corruption expertise also requires some elaboration. Existing techniques do not provide a description of procedure for expertise, its stages, phases and methods of conducting; there is no established systematic training of public and municipal servants in skills of anticorruption analysis. Ongoing training courses in this area are not systematic. In addition, foreign experience in developing and applying methodologies for anti-corruption expertise of regulatory legal acts remains virtually unstudied2. Though, of course, significant work in this area has been done3. Regulatory Impact Assessment (RIA) is a kind of fusion of legal and economic technology and systematic process to identify and assess possible consequences of introduction of certain regulations. This tool is used at the stage of identifying the problems for risk evaluation of introduction of new regulatory acts, its purpose is to identify the provisions introducing excessive administrative and other restrictions and obligations for business entities, as well as contributing to the emergence of unreasonable expenditures of business entities and budgets at all levels of Russian budget system4. The scope of RIA is established in para. 60(1) of Regulation 1

Pursuant to para. 5 of the Rules for Preparation of Regulatory Legal Acts of Federal Executive Bodies and State Registration Thereof approved by Russian Government Decree dated August 13, 1997 No. 1009, anti-corruption expert examination shall be conducted along with legal examination.

2

For details, see: Anti-corruption expert examination of draft legal acts: research and practical guide / managing editor Yu.A. Tikhomirov, E.I. Spector. M., 2012.

3

Performing functions of interdisciplinary center for coordination of scientific and educational countering corruption, the Institute has developed a training program «Corruption: causes, manifestations, countermeasures» approved by Resolution of the Presidium of Anti-Corruption Council under the President of the Russian Federation dated January 23, 2009. In addition, in cooperation with the Research Center of the Russian Federal Security Service the Institute prepared scientific-practical handbook «Legal Acts: anti-corruption analysis», recommended by Resolution of the Presidium of Anti-Corruption Council under the President of the Russian Federation dated September 9, 2009 to use by the General Prosecutor’s Office of the Russian Federation and the federal executive bodies.

4

See: Russian Government Decree dated December 17, 2012 No. 1318 On the Procedure for Conducting Regulatory Impact Assessment of Draft Regulatory Legal Acts, Draft Amendments to Draft Federal Laws and Draft Resolutions of the Eurasian Economic Commission by Federal Executive Bodies, as well as on Amendments to Some Regulations of the Russian Federation (together with the Rules for Conducting Regulatory Impact Assessment of Draft Regulatory Legal Acts, Draft Amendments to Draft Federal Laws and Draft Resolutions of the Eurasian Economic Commission by Federal Executive Bodies).

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of the Government of the Russian Federation approved by Russian Government Decree dated June 1, 2004 No. 260, and para. 3(1) Rules for Preparation of Regulatory Legal Acts of Federal Executive Bodies and State Registration Thereof approved by Russian Government Decree dated August 13, 1997 No. 1009. In accordance with the Rules for Conducting Regulatory Impact Assessment of Draft Regulatory Legal Acts, Draft Amendments to Draft Federal Laws and Draft Resolutions of the Eurasian Economic Commission by Federal Executive Bodies approved by Russian Government Decree dated December 17, 2012 No. 1318, the procedure for RIA1 shall be carried out at an early stage of rule-making process, which is based on a detailed analysis of alternative ways of addressing problems and informed choice of the best of them. Along with RIA, since July 1, 2016 it is supposed to mandatorily apply such economic examination as Actual Impact Assessment (AIA) of regulatory legal acts drafting of which was carried out through RIA in order to analyze achievement of regulatory objectives, determine and assess actual positive and negative impacts of adoption of regulatory legal acts, and to identify the provisions thereof that unduly hamper the conduct of business and other economic activities, or lead to the emergence of unreasonable spending of budgets from the Russian budget system2. Thus, AIA may be attributed to retrospective economic assessment related to determination of the effectiveness and justifiability of achieving original objectives. It is regulated that if draft regulatory legal acts of federal executive bodies govern relations in the sphere of entrepreneurial and other economic activities, organization and implementation of state control (supervision), etc., then conclusions on the results of independent 1

This procedure is a specific sequence of actions in the development of draft regulatory legal acts based on transparency of the process and including public discussion of the proposed regulation with stakeholders at all stages of preparation of draft acts.

2

See: Russian Government Decree dated January 30, 2015 No. 83 On Actual Impact Assessment of Regulatory Legal Acts and Amendments to Some Acts of the Russian Federation. It is worth noting that entry into force of the said Decree from January 1, 2016 actually invalidated Russian Government Decree dated July 29, 2011 No. 633 On Examination of Regulatory Legal Acts of Federal Executive Bodies to Identify the Provisions Thereof that Unduly Hamper the Conduct of Business and Investment Activities, and on Amendments to Some Acts of the Russian Federation providing for expert examination to assess the financial implications of adoption of appropriate decisions in order to identify the provisions that unduly hamper the conduct of business and investment activities.

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anti-corruption expertise shall be issued within public consultations carried out in the manner established by the Rules for Conducting Regulatory Impact Assessment of Draft Regulatory Legal Acts, Draft Amendments to Draft Federal Laws and Draft Resolutions of the Eurasian Economic Commission by Federal Executive Bodies1. However, we believe it appropriate to consider the assessment of corruption risks comprehensively, simultaneously elaborating mechanisms and diagnostics for the prevention of corruption offenses. Risk management2, being an integrated technology, is also a symbiosis of legal, economic and political technologies. Analysis and assessment of general theoretical and practical knowledge about risk as legal category generally allows formulating the concept of «corruption risk» which implies possible and prospective actions (inaction) of the subjects of law aimed at illegal deriving financial and other benefit in the performance of their official duties3. Signs inherent to corruption risk may reasonably include actions (inaction) which are intentional and their ultimate goal is to gain financial and other benefits. Risk assessment involves identification and analysis of relevant risks associated with the achievement of the set objectives. This is a prerequisite to determine how to manage risks. Risks are analyzed taking into account the probability of their occurrence and impact in order to determine which actions must be taken towards them. Situations are assessed in terms of inherent and residual risk. Typical factors that require assessment for possible manifestations of corruption may include: – lack or incompleteness of regulatory legal acts aimed at combating corruption;

1

Russian Government Decree dated August 13, 1997 No. 1009 On Approval of Rules for Preparation of Regulatory Legal Acts of Federal Executive Bodies and State Registration Thereof, Russian Government Decree dated February 26, 2010 No. 96 On Anti-Corruption Expert Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts (along with the Rules of anti-corruption expert examination of legal acts and draft regulations, Methodology for anti-corruption expert examination of legal acts and draft regulations).

2

For details, see: Tikhomirov Yu.A. Law: forecasts and risks: monograph. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015.

3

According to UN experts, assessment of corruption risks is the basis for adoption and implementation of anti-corruption program in order to determine their priority (United Nations Global Compact, «A Guide for Anti-Corruption Risk Assessment», 2013).

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– availability of the provisions conducive to the creation of administrative barriers in the legal and institutional system; – lack of administrative and official regulations; – the need to improve transparency and accountability in public sector in the implementation of a number of functions; – low efficiency of internal and external control over the activities of public officials and employees, compliance procedures; – inadequate feedback mechanisms between citizens and public authorities; – lack of proper legal anti-corruption education of public officials (employees) and other. In the area of identification and prevention of corruption risks the federal executive bodies and the highest executive authorities of constituent entities of the Russian Federation (e.g., the Ulyanovsk Region) evolve practice of independent development of appropriate methods for the diagnosis of corruption risks which are considered solely in terms of public administration (placement of state orders for state and municipal needs, social services, etc.). At the same time, we consider it expedient to develop a common approach to the assessment of corruption risks, diagnosis of prevention of corruption offenses in different spheres of public life on the basis of doctrinal studies. Legal forecasting, closely related to legal monitoring the data of which can serve as a basis for forecasting, is also one of proven legal technologies aimed at adoption of efficient laws, building an integrated system of anti-corruption legislation able to respond to challenges of present time and to counter threats at global level1. Forecasting involves the development of scientifically substantiated scenarios of future state and dynamics of legislation development, its practical application by specially organized research teams on the basis of achievements of jurisprudence and other disciplines, as well as data from law enforcement practice2. 1

For details, see: Legal means of combating corruption: scientific and practical guide / S.A. Gracheva, E.E. Rafalyuk et al; managing editor N.A. Vlasenko. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012.

2

E.g., see: Shargorodsky M.D. Forecast and Legal Science // Jurisprudence. 1971. No. 1; Kudryavtsev V.N. Definition and classification of conditions for effective action of legal norms // Effectiveness of legal norms. M., 1980; Glazyrin V.V., Lapaeva V.V., Morshchakova T.G. et al Methodology and methods of predicting the effectiveness of legal norms. M., 1986 (deposited

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Research and educational organizations and institutions specializing in the field of law and relevant government departments are mainly the subjects of forecasting activities based on comprehensive, systematic research. A type of legal forecasting in addition to anti-corruption legal forecasting is also a technology of scientific planning of legislation development carried out on the basis of comprehensive, systematic research that is not confined to the sphere of jurisprudence and is based on the achievements of other social sciences, especially economics, history, sociology, political science and psychology. An illustration of forward-looking source may be «Academic concepts for the development of Russian legislation» prepared by the Institute of Legislation and Comparative Law under the Government of the Russian Federation which reveal the development prospects of various branches of legislation, including anti-corruption laws1. Concepts of the Institute serve as a model for future legal regulation, determine legal objectives and legal means to achieve new legal status, legal nature and regime2. International technologies of scientific planning have been successfully used primarily in the development of acts of socio-economic and especially fiscal legislation. In view of the above, it is advisable to develop scientific toolkit for legal forecasting to determine the dynamics of legal regulation forms and their correlation with extralegal regulators3. In recent years, information and legal (legal reference) technology for systematization of legislation and processing of legal data are

with the Institute of Scientific Information for Social Sciences of Academy of Sciences of the USSR, No. 25756); Syrykh V.M. Forecasting the effectiveness of legal norms in the drafting // Proceedings of All-Union Research Institute of Soviet Legislation. Issue 36. M., 1987; Glazyrin V.V. Forecasting the effectiveness of legal norms: possible approach // Proceedings of All-Union Research Institute of Soviet Legislation. Issue 41. M., 1988; Pavlodsky E.A. Experience in predicting the effectiveness of a legal act through expert assessments // Proceedings of All-Union Research Institute of Soviet Legislation. Issue 41. M., 1988. 1

For details, see: Academic concepts of development of the Russian legislation: monograph. 7th, enlarged and revised ed. / S.Ye. Naryshkin, T.Ya. Khabrieva, A.I. Abramova et al; managing editor T.Ya. Khabrieva, Yu.A. Tikhomirov. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015.

2

For details, see: Legal models and reality: monograph / O.A. Akopyan, Vlasova N.V., S.A. Gracheva et al; managing editor Yu.A. Tikhomirov, E.E. Rafalyuk, N.I. Khludeneva. M., 2014. P. 116–143.

3

See: Khabrieva T.Ya. Legal measurement of scientific progress // Journal of Russian law. 2009. No. 8. P. 12–19.

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rapidly evolving1. Theoretically, information technology is a clearly regulated process that determines the forms of data representation and procedures for performing information processing operations by humans and technical equipment, and leading to the production of information product with desired properties2. Such technologies implemented by collecting legal acts in the computer system with their subsequent processing for classification as sectoral affiliation, legal effect or case affiliation3 significantly facilitate the work of experts from different sectors and professions in analysis of existing legislation, identification of its gaps and contradictions, and search for the necessary legal solutions. The consequence of a better use of information resources (ITtechnologies, Legal Reference Systems, etc.) is the development of inter-agency information exchange, which is a key way to increase the efficiency of public administration system operation through the transition to electronic delivery of public services, and other. Another significant area is the improvement of public service system through the use of information and communication technologies, the introduction of which together with the automation of personnel procedures in public service, including in terms of combating corruption, is also a key objective4. One should not forget about such kind of information technology heavily used by civil society institutions as public sources of 1

Legal Reference Systems Consultant, Garant, Kodeks, Reference Bank of Legal Information, MITProject, TAXAMAN-I and TAXAMAN-II (UK), Judith (Germany), DSCAS , LEXIS/NEXIS, Westlaw (USA), Lex (France) etc., as well as international legal reference system: EUROVOC thesaurus of the European Parliament, GLIN Internet system of a worldwide international legal network and legal reference system of the EU Eur-Lex.

2

For details, see: Information technology in jurisprudence / edited by S.Ya. Kazantseva. M., 2011.

3

See: Egorov G.G. Role of legal reference computer systems in the systematization of Russian legislation: Theoretical and Practical Issues: author’s abstract of ... Cand. Sc. Volgograd, 2007.

4

In particular, special software Spravka BK posted on the official website of the President of the Russian Federation has been developed and operated efficiently since 2014 which is designed to fill in certificates of income, expenses, assets and property-related obligations to be submitted to the Presidential Office for Combating Corruption. Input of data in the fields of electronic forms eliminates the possibility of indicating incorrect data (through format-logical check and methodical tips, as well as built-in classifiers and directories), which greatly simplifies filling and formation of electronic certificates of income, expenses, assets and property-related obligations. Advantages of using automated systems by employees of departments for the prevention of corruption offenses are also obvious: they significantly reduce the time for and simplify collection, processing and analysis of information provided.

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information about the facts of corruption in the Internet network (websites, blogs and microblogs)1. In conclusion, it should be noted that anti-corruption technologies, both standard ones requiring constant improvement in terms of compliance with objective realities, and new, may not only prevent the onset of harmful consequences of corruption offenses, but also improve the quality of lawmaking, its efficiency and optimize administrative processes. § 2. FORMATION OF ANTI-CORRUPTION LEGAL CONSCIOUSNESS AND LAW-OBEDIENT BEHAVIOR

Along with the formation of anti-corruption legal framework our country is searching for innovative solutions in the field of combating corruption. This is manifested not only in the diversity of anti-corruption measures taken by the state and society (e.g., a combination of different forms of social regulation of ethical and legal nature), but also in raising the level of anti-corruption legal consciousness and law-obedient behavior being a response to current challenges of corruption. The law acts and manifests its social functions only in an organic conjunction with legal consciousness developing under the influence of country’s historical peculiarities, mentality of peoples and other. As was rightly pointed out, without legal consciousness able to understand legal norms, convert them into specific legal solutions and then into legally significant acts, the law is deprived of its social importance becoming a «dead» law2. Distortion of legal consciousness is one of the most important causes of crime. In this regard, combating corruption should overcome not only corrupt (corruptive) behavior, but also corruptive consciousness. This in turn reflects the distortion of values and legal nihilism, entails alienation from law and flagrant violation of its principles and rules, underestimation of public interests and dominance of selfish motives, sustainable preference for informal relationships and «shadow» law. 1

For details, see: Analytical report of Russian Presidential Academy of National Economy and Public Administration «Combating corruption and modernization of public administration: the experience of “Rossiya”». M., 2011.

2

See: Sociology of law / edited by V.M. Syrykh. M., 2001. P. 78.

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Formation of anti-corruption legal consciousness and lawobedient behavior is only possible through the integrated use of diverse measures, a priority of which should be the prevention of corruption. Notwithstanding the importance of application of specific preventive measures against corruption, their integral system has yet to be developed and consolidated at the legislative level1. Therefore, doctrinal developments in this area acquire a special significance. Anti-corruption legal consciousness is part of legal consciousness and defines the attitude of each individual citizen and the whole society to the rules of law regulating the state anti-corruption policy and measures to combat corruption. A particular behavior of the subject is determined not by the rules of law and permissions, prohibitions or restrictions contained therein, but by subjective perceptions of these rules and their inherent rules of behavior, i.e., legal consciousness. Law-obedient behavior depends not only on the knowledge and experience of the person, but also on individual psychological characteristics (abilities, temperament, and character) that cannot be ignored. In turn, the «fulfillment of legal requirements is determined by the level of legal consciousness and legal culture of citizens acting as private persons or public officials»2. Formation of anti-corruption legal consciousness of citizens and public officials can ensure a conscious rejection of corruption, creation of an environment of intolerance to it. Anti-corruption legal consciousness consists of two structural elements: 1) anti-corruption legal ideology, which is a set of views and scientific ideas about corruption as a negative social phenomenon; 2) anti-corruption legal psychology reflecting the actual attitude of the population to manifestations of corruption3. 1

See: Shindyapina E.D., Cherepanova E.V., Dymberova E.D., Belousova O.V. Improving the legal and institutional framework for combating corruption in the Russian Federation // Journal of Russian Law. 2013. No. 4. P. 102–103.

2

Khabrieva T.Ya. Economic and legal analysis: methodological approach // Journal of Russian Law. 2010. No. 12. P. 20; Khabrieva T.Ya. Stability of law, legislation modernization and tasks of legal science // Law: Stability and Dynamics: Proceedings of the meeting of the International Workshop of Young Law Scientists (Moscow, June 1-3, 2006) / managing editor T.Ya. Khabrieva. M., 2007. P. XI–XXVI.

3

For details, see: Legal innovations in combating corruption: proceedings of the First Eurasian Anti-Corruption Forum and VII International Workshop of Young Law Scientists (Moscow, May 30–31, 2012) / managing editor L.V. Andritchenko, A.M. Tsirin. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012. P. 416.

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§ 2. Formation of anti-corruption legal consciousness and law-obedient behavior

Depending on the depth of knowledge in the field of law and their degree of generalization it is customary to distinguish ordinary and scientific legal consciousness, depending on the range of subjects – individual, group and public. An independent group comprises professional lawyer’s legal consciousness1. Anti-corruption legal consciousness along with the general signs of legal consciousness have some additional specific features2, in particular: – exercise of will in countering corrupt practices or intentions to commit them; – perception, reflection and expression in the form of legal knowledge and legal evaluation of human behavior, in the regulatory capabilities of constitutional, administrative, criminal, civil law rules, to a sufficient efficiency of their application in the exercise of the rights of citizens and collective entities; – manifestation in the process of developing a legal part of anticorruption policy and the provision of decisive influence on the entire anti-corruption policy of the state; – cover of specific material (gain of illegal material benefits by public official from his/her office) and intangible (other intangible benefits received by public servant) sector, etc. For a long time in our country formation of legal consciousness and legal culture occurred on a systematic basis, but since the early 1990s it was abandoned, resulting in the fact that spontaneous development of citizens’ consciousness on the basis of the principles of economy, private property and exaggerated importance of liberalism led to the downfall of legal culture. In the changed sociocultural situation, each person had to rethink the basic life values and behavioral norms, to determine the desired and actual place in society, to apply adaptation strategies to adjust to new conditions of life3. Unfortunately, the prevailing purpose of the younger generation was to achieve material (financial) well-being by any 1

lbid. P. 634.

2

See: Knysheva E.A. Development of anti-corruption legal consciousness as technology for activation of anti-corruption potential of Russian society // Bulletin of state and municipal administration. 2015. No. 2. P. 86.

3

See: Shevchenko I.V. Legal socialization and legal consciousness of young people: problems of theoretical understanding // Society and Law. 2011. No. 2.

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(even criminal) methods, legal nihilism and the cult of criminal activity became widespread1. Increase in the rate of changes in legislation, transformation of legal relationship and legal consciousness (but at a slower rate, as the latter are more conservative parts of legal system), deterioration of consistency between legal norms, growing instability in the regulatory plane are natural for the legal system of a transition period in the development of any modern state2. The conceptual framework for raising the level of legal consciousness in the society is established by Fundamental Principles of the Russian Federation’s State Policy in the Sphere of Legal Literacy and Legal Consciousness of Citizens approved by the President of the Russian Federation on April 28, 2011 No. Pr-11683 which determine the relevant principles, objectives, basic directions and content of Russia’s state policy. Achieving the purposes contained in the document (in particular, increase in the level of legal culture of citizens, including the level of awareness and legal literacy, education of public sustainable respect for the law and overcoming legal nihilism) takes place against the background of globalization and informatization of society, which can contribute to an intensive dissemination of essential knowledge and public attitude development in line with law-obedient behavior. Thus, the information factor influencing legal consciousness of young people is considered an overriding source of knowledge about reality in the social and cultural space. Information means of modern communications have a significant impact on the level of legal consciousness of each particular individual and society as a whole. Their significance is also great in the formation of social and cultural categories such as public opinion and mentality. The main factors affecting legal literacy and legal consciousness of citizens also include clarity, accessibility and effectiveness of 1

See: Contemporary anti-corruption standards and technologies: Materials of the Third Eurasian Anti-Corruption Forum (Moscow, April 24-25, 2014) / managing editor T.Ya. Khabrieva. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015. P. 145.

2

See: Law: Stability and Dynamics / managing editor T.Ya. Khabrieva. M., 2007. P. 141 and the following.

3

Rossiyskaya Gazeta. 2011. No. 151.

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legislation, systematic and high quality control of its state for optimization, identification of gaps and contradictions, its timely incorporation and codification. Legal literature demonstrates that underestimation of this area will enhance the destructive trends aimed at further reducing the level of the rule of law in the country, legal consciousness of citizens and sustainable law enforcement practice1. In this regard, the role of legal drafting standards and modern legal technologies (in particular, forecasting, monitoring, planning, RIA) is increasing in the mechanism to ensure action of law and strengthen the stability of legal system2. The system of organizational and legal measures to support and encourage law-obedient behavior patterns should be complemented by educational and awareness-rising measures, when the citizens will understand the benefit (profit) from actions in accordance with law rather than contrary to it, when the ratio of public and private interests will be harmonious and correct understanding of the purpose of law and its provisions will help to eliminate limitedness of their use or neglect3. Attitudes of law-obedient behavior are heterogeneous in nature and the degree of their social significance. Depending on the underlying motive that determines legitimate nature of behavior, the following types of legal attitudes may be distinguished: 1) principled (a person complies with the requirements of law because shares them and understands the importance of law and public order for the society); 2) pragmatic (a person believes that it is more profitable to comply with legal requirements); 3) conformal (a habit to follow generally accepted requirements); 4) forced (based on fear of punishment). Most sustainable are principled attitudes to law-obedient behavior which drive a person to active actions in the implementation of legal 1

See: Scientific concepts of development of the Russian legislation: monograph / managing editor T.Ya. Khabrieva, Yu.A. Tikhomirov. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015; Khabrieva T.Ya. Stages and main areas of constitutionalization of contemporary Russian law // Constitutional Justice Journal. 2013. No. 6. P. 25–30.

2

lbid.

3

See: Tikhomirov Yu.A. Behavior in society and law // Journal of Russian Law. 2011. No. 2.

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values shared by him/her and achievement of his/her legitimate interests through this1. To form anti-corruption legal consciousness as well as in combating corruption in general, combination of legal and extralegal methods of regulation is particularly important. «It is essential to determine the «watershed» between the use of different forms of social regulation, determine in which cases the use of legal mechanisms and in which extralegal ones is more justified»2. Here it comes primarily about the codes of ethics the adoption of which has become widespread both in public and private structures in recent years. In the formation of anti-corruption legal consciousness, high legal culture of citizens and law-obedient behavior, the potential of civic institutions (political parties, public organizations, mass media, business structures3, scientific community) is rather significant. A prerequisite for effective fight against corruption is an active civic participation and efficient public control. In this context the effective implementation of legal framework for the organization and implementation of public control over the activities of public authorities, local authorities, state and municipal organizations, other bodies and organizations exercising certain public powers is of great importance4. This activity of public institutions and government support of civil initiatives on combating corruption is an indicator of maturity of civil legal consciousness and intolerance towards corrupt behavior. Experience of modern European states demonstrates the need for a coherent active position of state bodies and civic institutions in combating corruption, their continuous cooperation in this matter. 1

For details, see: Legal monitoring: acute problems of theory and practice: monograph / edited by N.N. Chernogor. M., 2010.

2

Khabrieva T.Ya. Scientific and legal problems of combating corruption // Journal of Russian Law. 2012. No. 7. P. 11.

3

In this regard, an illustrative example is the Anti-Corruption Charter of the Russian Business signed in 2012 by the leaders of the Russian Union of Industrialists and Entrepreneurs, the Chamber of Commerce and Industry of the Russian Federation, All-Russian Public Organization Delovaya Rossiya [Business Russia] and All-Russian Public Organization OPORA Rossii [Support of Russia]. URL: http://media.rspp.ru/document/1/8/d/ 8db23446b6f50286ec4faa5a85023232.pdf

4

E.g., see Federal Law On Fundamental Principles of Public Control in the Russian Federation, which declared the formation and development of civil legal consciousness as well as the formation of social intolerance towards corrupt behavior as objectives of public control (para. 1 and 6 p. 2 Art. 5).

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The conditions for such cooperation include mutual openness of the authorities and entrepreneurs, exchange of views and opinions on controversial issues, joint open public discussion of draft legal acts and other important decisions. Legal science rightly emphasizes that the lessons and mistakes of domestic and foreign reforms confirm the crucial importance not only and not so much of the theory and methodology of state reforms, as the degree of «involvement» of the society and different political forces in their preparation, implementation and successful completion1. Anti-corruption legal consciousness is implemented through anticorruption education and awareness, advocacy and introduction of standards of moral and ethical education in law enforcement officers, public and municipal servants, entrepreneurs, employees of private companies and citizens. The most efficient means and methods of forming anti-corruption legal consciousness and, as a consequence, anti-corruption behavior include: training programs; tests/quizzes in the Internet that can motivate public servants to voluntarily test their knowledge and understanding of ethical and legal norms and rules of anti-corruption behavior (Hong Kong, Singapore); issue-related campaigns – declaration of any day, week or month a «day/week/month of fight against corruption» or a «day/week/month of ethics», etc. (Japan); anti-corruption awareness raising (education in the form of counseling public officials on anti-corruption behavior) (USA); anti-corruption advocacy – often with the use of mass media (Hong Kong, South Korea, Mexico, Malaysia, the Philippines); outdoor anticorruption advertising; outreach activities in rural areas in order to intensify efforts to prevent corruption in the periphery (Australia)2. The most common means of anti-corruption education is anticorruption consulting of the population and specific target groups (public and municipal servants), lectures, briefings, etc. Guidelines on combating corruption developed and communicated to the subjects 1

See: Tikhomirov Yu.A. The State: Continuity and novelty. M., 2011. P. 50.

2

For details, see: Butkov A.V. Foreign experience of raising anti-corruption legal consciousness of citizens // Urgent problems of Economics and Law. 2015. No. 1. P. 227–229; Truntsevskii Yu.V. Organization of anti-corruption education as one of the areas of law enforcement in the prevention of corruption: foreign experience // Legal education and science. 2015. No. 3. P. 36–38.

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of anti-corruption education, mass media, the Internet, scientific and educational literature, contests, exhibitions, etc. have indirect information influence.1 Means of anti-corruption advocacy include anti-corruption campaigning and anti-corruption advertisement (anti-corruption social advertising)2. Campaigning is aimed at promoting anticorruption behavior of the population through the formation of a stable anti-corruption outlook and is designed to achieve the following tasks: demonstration of possible ways of reducing the level of corruption in public authorities and in society due to anticorruption activities; changing established adverse patterns of behavior of the entire population when faced with the facts of corruption to anti-corruption positive behavior patterns; creating the necessary behavioral values – rejection of corruption in public consciousness and behavior3. In turn, anti-corruption advertising should promote active (community involvement in combating corruption) and passive anticorruption behavior (provision of anti-corruption information to a wide range of people). Targeted process of anti-corruption training and education based on comprehensive programs developed within the framework of state educational standards and implemented in educational institutions will help to achieve objectives of formation of anti-corruption outlook, raising anti-corruption legal consciousness and legal culture of students, to master practical skills required to combat corruption in specific life situations, to create anti-corruption standards of behavior4. The higher education system plays an important role here, especially for the preparation of legal and administrative personnel. It is important to ensure the universalization and high quality of educational anti-corruption programs in order to facilitate dissemination of knowledge in the field of combating corruption, 1

See: Kabanov P.A. Concept and content of anti-corruption education as a means of corruption prevention // Legal research. 2015. No. 2.

2

Such means are established in the legislation of most constituent entities of the Russian Federation.

3

See: Kabanov P.A. Anti-corruption campaigning as an information tool to counter corruption: the concept and content // Administrative and municipal law. 2014. No. 2.

4

For details, see: Knysheva E.A. Op. cit. P. 87–88.

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development of skills in analyzing corruption situations, development and use of means for the prevention and overcoming the associated negative consequences. Rooting out corruption becomes an ideological problem causing systematic activities of all social strata to form law-obedient behavior of citizens and eliminate the causes of corruption the main among which is a distortion of legal consciousness of population. § 3. ESTABLISHING THE SYSTEM OF PROHIBITIONS, RESTRICTIONS AND OBLIGATIONS WITH A VIEW TO COMBATING CORRUPTION

Prohibitions and restrictions are important legal instruments to counter corruption. In this context, issues of the legality of restrictions and prohibitions for constitutional rights in the Russian Federation, conceptual framework, criteria, foundations, system, mechanisms and extent of action of this kind of legal instruments require scientific understanding. Legislation does not provide for legal concepts of such methods of legal regulation as «restriction» and «prohibition». Moreover, the question of the relationship of these categories in legal literature is still controversial: some scientists consider legal restrictions a type of prohibitions, others consider them as incomplete legal prohibitions, and still others either distinguish between legal prohibitions and legal restrictions or equate them. A unifying feature of these concepts is the fact that they are aimed at regulating different types of relationships within a particular field of law. Extensive scientific research of legal prohibitions concept are presented in the works of legal theorists1. Category of «prohibition» in legal dictionaries is defined as «a method of legal regulation being a state-authoritative imperative which indicates the inadmissibility of certain behavior under threat of liability and governs legal 1

E.g., see: Ioffe O.S. Legal norms and human behavior // Topical issues of Soviet civil law. M., 1964; Malko A.V. Incentives and restrictions as paired legal categories // Jurisprudence. 1995. No. 1; Malko A.V. Legal incentives and legal restrictions in public service // Legal science and legal education reform. Voronezh, 1995; id. Incentives and restrictions in law. M., 2004; Radko T.N. On the role of prohibitions in legal regulation // Proceedings of the Higher School of the USSR Interior Ministry. Volgograd, 1969; Alekseev S.S. Legal restrictions in the structure of Soviet law // Jurisprudence. 1973. No. 5. P. 43.

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impossibility of actual behavior causing damage to the interests of an individual and the state»1. Resolution of conflicts of individual interests of a person and collective interests of the society and public interests of the state suggests legitimate, proportionate and fair constraints on the constitutional rights of citizens. As outlined in the academic literature, «there are no absolute rights and freedoms, they can be restricted»2. There are certain international standards restricting the discretion of states in intervention into human rights and freedoms3 guaranteed by various international conventions4. Furthermore, according to p. 1 Art. 17 and p. 4 Art. 15 of the Constitution of the Russian Federation restrictions established by the legislator shall comply with international law. In this regard, we cannot but agree with the fact that «just as there are international standards for universal rights, there must be standards for their restrictions with comments for goals and their conditions of application in order to eliminate the background for arbitrariness and abuse of power committed by «national» public officials, on the one hand, and to create common «supranational» mechanisms for implementation of human rights and their restrictions, on the other hand.»5. Issues of limits of restrictions for the rights and freedoms, the criteria for their establishment in the most general terms are defined in Art. 55 and 56 of the Constitution, as well as indirectly through other constitutional norms. P. 2 Art. 19 of the Russian Constitution prohibits the imposition of restrictions on the rights of citizens on the grounds of social, racial, national, linguistic or religious affiliation. In accordance with p. 3 Art. 55 of the Constitution of the Russian Federation restrictions on constitutional rights and freedoms should 1

E.g., see. the Big Law Dictionary Online. URL: http://law-enc.net/

2

See: Khabrieva T.Ya., Chirkin V.E. Theory of modern constitution. M., 2005. P. 133.

3

For example, the International Covenant on Civil and Political Rights of 1966, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950

4

See: Gulyaeva E.E. Legal grounds for restricting the right to liberty and security under the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. M., 2013. P. 53; Lipkina N.N. Legality of interference with the rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 // Effectiveness of legislation and modern legal technologies: proceedings of the meeting of the III International Workshop of Young Law Scientists / managing editor T.Ya. Khabrieva. M., 2009. P. 79–84.

5

Malko A.V. Incentives and restrictions in law. M., 2003. P. 72.

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be imposed only «in order to protect fundamentals of constitutional system, morality, health, rights and legitimate interests of other persons, ensuring national defense and state security», subject to compliance with limitations – they can only be imposed to the extent required to achieve the stated objectives. The Russian Constitution imposes certain requirements to the form of permissible restrictions of constitutional rights and freedoms. In accordance with p. 3 Art. 55 restrictions of constitutional rights and freedoms shall be established only in the federal law which shall be published for general information (p. 3 Art. 15). In literature, there is a fairly critical opinion on the fact that the said constitutional provision fully meets generally recognized international standards. In particular, it is noted that the basis of the relevant constitutional principle is the primacy of public interests over personal, and Article 29 of the Universal Declaration of Human Rights places securing due recognition and respect for the rights and freedoms of other people in the first place among the grounds for permissible restrictions of rights and freedoms1. In this regard legal opinions of the Russian Constitutional Court are of particular importance since they fill the gaps in the doctrinal understanding of the provisions of the Russian Constitution and the laws based thereon to a large extent. According to the legal opinion of the Constitutional Court of the Russian Federation expressed in a number of its decisions, the restrictions of constitutional rights and freedoms may only by imposed by federal law, shall be proportionate to the constitutionally enshrined purpose of such restrictions, socially justified and meet the requirements of fairness; shall have no retroactive effect; shall not be interpreted broadly and lead to denial of other rights and freedoms; shall not affect the very essence of constitutional rights and lead to the loss of its specific content (Rulings of the Constitutional Court of the Russian Federation dated May 12, 2006 No. 155-O, dated December 4, 2003 No. 456-O, Decisions of the Constitutional Court of the Russian Federation dated 24 June 2009 No. 11-P, dated November 14, 2005 No. 10-P, etc.).

1

See: Bondar I.S. Principles, scope, grounds for restrictions on rights and freedoms under the Russian legislation and international law // State and law. 1998. No. 8. P. 39.

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It must be admitted that both in theory and in practice there is no clear and consistent understanding of restrictions of rights and freedoms. In the Constitution of the Russian Federation this term is used in different semantic meanings: according to Article 55 in a normal regime of legal regulation not associated with the imposition of a state of emergency federal law may limit any rights and freedoms without time limits of such restrictions, and in accordance with Article 56 specific restrictions on the rights and freedoms shall be permitted only during states of emergency, within the prescribed limits and only for a certain period. In terms of protection of human and civil rights in the Russian Federation the problem arises not so much from the ambiguity of this term in the text of the Russian Constitution (this problem is resolved by systemic interpretation of the constitutional text), but from the wording of p. 3 Art. 55 permitting restriction of fundamental rights and freedoms by federal law on a wide range of grounds without a clear indication of the constitutional limits of such restrictions1. Thus, restriction of constitutional rights and freedoms of citizens shall mean establishing in the legislation of conditions, prohibitions and duties in compliance with formal and material criteria which hamper implementation of legal constitutional rights and freedoms, as well as an increase in the powers of public authorities and their officials resulting in the reduction of possible variants of behavior that constitute legal constitutional rights and freedoms of citizens. Restrictions on fundamental rights by federal law cannot go beyond the limits of constitutional rights and freedoms outlined in the Constitution of the Russian Federation. Such restrictions shall not, firstly, violate the principle of equality of the rights of subjects of law, i.e. citizens; secondly, shall introduce additional assurances against the abuse of rights. They can only elaborate the guarantees enshrined in the Constitution of the Russian Federation. The most important safeguard against arbitrary intrusion of the law into the sphere of fundamental rights and freedoms is the provision of p. 2 Art. 55 of the Russian Constitution according to which «no laws shall

1

See: Lapaeva V.V. The problem of restrictions on the rights and freedoms of man and citizen in the Constitution of the Russian Federation (experience of doctrinal understanding) // Journal of Russian Law. 2005. No. 7.

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be issued that abrogate or derogate the rights and freedoms of man and citizen in the Russian Federation». It should be noted that the theory of restrictions on human rights operates with a variety of concepts in addition to the above: «deprivation» of the right, «deletion» from the right, «impairment» of the right, «nullification» or cancellation of the right, «suspending» the right1. From the theoretical point of view unambiguous answers must be provided whether deprivation of the right is a type of full restriction or nullification of right and how it relates to constitutional prohibition. Probably, nullification, cancellation and deprivation are similar, but not identical concepts and they are fundamentally different from the restriction of right. For example, the concept of «deprivation» of right is missing in the text of the Russian Constitution. In part 2 Art. 55 the term «cancellation» of right is used: «No laws shall be adopted in the Russian Federation that abrogate or derogate the rights and freedoms of man and citizen». However, the provision of p. 2 Art. 20 of the Constitution of the Russian Federation, which deals with the death penalty, can hardly be called «restriction of the right to life». In fact this formulation means the abolition of the right to life – the right guaranteed by part 1 of the same Article.2. Federal laws establish examples of absolute and perpetual deprivation or cancellation of rights. In particular, according to para. «a» p. 3.2 Art. 4 of Federal Law dated June 12, 2002 No. 67-FZ On Basic Guarantees of Electoral Rights and the Right to Participate in the Referendum of Citizens of the Russian Federation,3 persons having been ever sentenced to imprisonment for committing grave and (or) especially grave crimes shall be permanently deprived of the right to be elected, except in cases where, in accordance with the new criminal law, these offenses are not deemed grave or especially grave crimes. Restrictions of constitutional rights acting as legal regulation means when the legislator deliberately limits the scope of rights

1

For details, see: Nikitina E.E. Human and civil rights as a concept of constitutional law // Concepts of constitutional law / managing editor L.V. Andritchenko, A.E. Postnikov. M., 2011. P. 103.

2

It should be noted that international standards and requirements on the abolition of death penalty are justified by natural and legal nature of the right to life as an absolute right.

3

Official Gazette of the Russian Federation. 2002. No. 24. Art. 2253.

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granted to person should be distinguished from restrictions which are the result of regulatory impact of legal norms. Restrictions and prohibitions established in order to combat corruption are the main legal means in this area. The main purpose of legislative establishment of restrictions and prohibitions associated with civil service is to create the conditions for fair administrative decision-making, to ensure the effective performance by civil servants of their official duties while excluding the possibility of abuse of power. From this perspective, prohibitions are the provisions enshrined by the rules of law that do not allow a subject to perform actions listed by law under threat of state coercion1. Restrictions, in turn, are the circumstances established by rules of law, in the presence or occurrence of which the relevant actors are limited in the exercise of rights. According to legal literature, the purpose of prohibitions in civil service regulation is to create obstacles to possible abuse by civil servants, to create conditions for independence of official business and at the same time to provide safeguards for civil rights of public servants2. Restrictions shall mean prohibitions of certain actions established by the rules of law, and obligations shall mean the limits established for public servants which cannot be exceeded3. The main message of legal opinion of the Russian Constitutional Court on the constitutionality of restrictions under consideration is that «the specificity of public service as a professional activity on enforcement of powers of state bodies determines the legal status of public servants, proceeding from the features of which arising from the nature of activities and qualification requirements, the legislator shall be entitled in its own discretion to determine by special legal regulation the rights and duties of public servants, restrictions imposed on them and related to public service, and to provide them with adequate safeguards in view of the tasks,

1

See: Kurakin A.V. Administrative legal means of corruption prevention and suppression in the system of public service of the Russian Federation: thesis of ... Dr. Jur., Lyubertsy, 2008. P. 234.

2

See: Statement to Federal Law On State Civil Service in the Russian Federation and legislation on civil service of foreign states / managing editor A.F. Nozdrachev. M., 2005. P. 151.

3

lbid. P. 45.

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principles of organization and functioning of a particular type of public service»1. Upon admission to civil service a citizen voluntarily elects professional activity which presupposes the existence of certain restrictions in the exercise of constitutional rights and freedoms, which is associated with the performance of special public duties. Therefore, imposition of prohibitions arising from civil service on public servants is permissible in itself if it is consistent with the main objectives of public service legal regulation in the Russian Federation as a social state of law, meets the legitimate interests relating to its organization and effective operation, and does not exceed the scope of possible restrictions of constitutional rights and freedoms of man and citizen for constitutionally significant purposes. Anti-corruption prohibitions and restrictions may be of absolute and general nature. They apply equally to all public and municipal servants, regardless of their official position. It is essential to distinguish the concepts of «restrictions associated with service» and «legal restrictions of servants», since legal restrictions represent a broader concept which means a system of rights-restricting norms established by applicable legislation and arising from tasks, principles of organization and functioning of services and aimed at ensuring proper performance by servants of their functions, the violation of or non-compliance with which entails legal consequences. Thus, given the fact that some circumstances associated with restrictions occur regardless of the will of the parties (for example, upon reaching the age limit for service or a disease preventing from taking service), there is uncertainty about the possibility to comply with these restrictions, because in this context «restrictions» should be interpreted in a broader sense – as «legal restrictions» which on the information and legal level include both restrictions and prohibitions, including those relating to public or municipal service. In furtherance of the UN Convention against Corruption, recommendations of GRECO, OECD and other international orga1

Decision of the Constitutional Court of the Russian Federation dated June 30, 2011 No. 14-P On the Case of Constitutionality of the Provisions of Paragraph 10 Part 1 Article 17 of the Federal Law On State Civil Service of the Russian Federation and Article 20.1 of the Federal Law On the Police in Connection with the Complaints from Citizens L.N. Kondratyeva and A.N. Mumolina.

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nizations the Russian Federation has adopted a number of legislative acts significantly expanding the scope of application of anticorruption prohibitions, restrictions and obligations1. Whereas previously they were established primarily in respect of public servants, now they are applicable to municipal servants, employees of state corporations, companies, foundations and other organizations involved in the provision of public services2. Thus, the law formed a fairly stable list of restrictions and prohibitions established in order to counter corruption. At the same time, their analysis shows that current state of anti-corruption legal and regulatory framework created in the wake of a call to intensify fight against corruption, despite its large scale, is characterized by such negative features as inconsistency and unsystematic character of construction. There is a need for adjustment of tactics and an indepth survey of legislation in order to further optimize and improve the efficiency of its implementation. This must be done in relation to the restrictions and prohibitions aimed at combating corruption. Their content is largely eclectic, non-systemic, and in some cases obviously excessive. Moreover, the process of permanent fragmentation of restrictions and prohibitions without a clear systematization only enhances the chaotic approach to their regulation. Establishing the rules relating to imposition of anti-corruption restrictions, prohibitions and obligations by the federal law on the type of civil service (for example, Federal Law dated March 28, 1998 1

Federal Law dated December 25, 2008 No. 273-FZ On Combating Corruption, Federal Law dated July 27, 2004 No. 79-FZ On State Civil Service in the Russian Federation, Federal Law dated March 2, 2007 No. 25-FZ On Municipal Service in the Russian Federation; Presidential Decree dated May 18, 2009 No. 557 On Approval of the List of Offices in Federal Public Service, upon the Appointment To Which Citizens, and upon Substitution of Which Federal Officials, Are Obliged to Provide Information about Their Income, Property and Property-Related Obligations, as well as Information on Income, Property and Property-Related Obligations of Their Spouse and Minor Children, Presidential Decree dated May 18, 2009 No. 559 On the Provision of Information about Income, Property and Property-Related Obligations by Citizens Qualified for Offices in Federal Public Service and Federal Public Servants, Presidential Decree dated September 21, 2009 No. 1065 On Verification of Accuracy and Completeness of the Information Submitted by Citizens Qualified for Offices in Federal Public Service and Federal Public Servants, and Compliance by Federal Public Servants with the Requirements to Official Conduct and others.

2

As an example, we can note the restrictions imposed on medical and pharmaceutical personnel in the performance of their professional activities (they are not allowed to accept gifts, cash, including payment for entertainment, travel to the place of rest, etc. from manufacturers of drugs).

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No. 53-FZ On Military Duty and Military Service) should take into account, rather than formally copy the practice of legal regulation of other types of service. Regulation of such restrictions should take into account the main elements of servant’s legal status. Quite often in this part of the anti-corruption legislation we can observe a serious confusion when restrictions are defined as prohibitions and prohibitions as restrictions, though in fact they are not. Similar examples have been given in scientific literature many times1. Illegality of corrupt conduct of public officials necessitated application of different legal means regulating their conduct both on and out of duty through imposition of prohibitions, restrictions and obligations. A special group is comprised of restrictions concerning the execution by current and former public servants of anti-corruption legislation. A situation may be considered controversial where constituent entities of the Russian Federation with a view to combating corruption in their laws on municipal service establish penalties for failure to comply with the restrictions and prohibitions, requirements on the prevention and settlement of conflict of interest and dereliction of duty, as is done, for example, in the relevant Law on Municipal Service of the Primorye Territory (Art. 12), the Penza Region (Art. 12.1) and several other constituent entities of the Russian Federation, thus departing from the scope of their powers and interfering with the competences of the Russian Federation. However, the issues raised about regulatory levels of prohibitions and restrictions cannot be resolved in simplified form since anticorruption standards should be uniform, but reflect the specifics of regional and municipal levels. Indeed, in a strictly legal and formal interpretation in accordance with para. «c» Art. 71 of the Constitution of the Russian Federation lawmaking in the field of human and civil rights shall be an exclusive privilege of the federal level. However, there are objective reasons for intervention of constituent entities of

1

E.g., see: Lisov V.V. Constitutional and legal nature of restrictions on fundamental rights // Contemporary law. 2014. No. 5. P. 30–35; Ageev V.N. Legal mechanisms of combating corruption in the Russian Federation: regional experience (the case of the Republic of Tatarstan) // Administrative and municipal law. 2013. No. 1. P. 16–23.

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the Russian Federation in the sphere of regulation and protection of the rights and freedoms of man and citizen1. This approach is substantiated in a number of legal determinations of the Constitutional Court2. In particular, it formulated a legal opinion on the possibility of legislative regulation of constitutional rights of citizens, which is not a federal regulation (within the meaning of Art. 71 of the Constitution). In addition, the Constitutional Court stated that «the laws of the Russian Federation ... shall take into account the constitutional principles such as the principle of equality (p. 1, Art. 19) and the principle of restriction on rights and freedoms commensurate with constitutionally significant goals (p. 3, Art. 55)»3. This wording, as noted in the scientific literature, allows the conclusion that «the relevant issues cannot be resolved without some intrusion of constituent entity of the Russian Federation into legal regulation of the rights and freedoms of man and citizen»4. Thus, the constituent entity of the Russian Federation intrudes into regulation of restrictions on fundamental human rights and freedoms, including when it elaborates federal regulations in the area under consideration, and provides a mechanism for their execution. Problem of imposing restrictions and prohibitions as anticorruption standards for municipal servants who are foreign nationals or stateless persons is also topical. The legislator refers to application of these rules only to the citizens of the Russian Federation. However, a citizen of a foreign state – party to an international treaty may also act as a municipal servant, which could cause uncertainty in application of these rules. 1

See: Pyatkina S.A. Constitutional regulation of the rights and freedoms of man and citizen // Correlation of the Russian Federation legislation and legislation of constituent entities of the Russian Federation. M., 2003. P. 344.

2

Decision of the Constitutional Court of the Russian Federation dated March 11, 2008 No. 4-P and December 24, 2012 No. 32-P, Ruling of the Constitutional Court of the Russian Federation dated June 17, 2008 No. 436-O-O on electoral rights. A similar opinion was expressed by the Constitutional Court with respect to other rights, in particular labor rights which are subject to joint jurisdiction of the Russian Federation and constituent entities of the Russian Federation as provided for by Art. 72 (para. «k» p. 1) of the Constitution of the Russian Federation. E.g., see: Decision of the Constitutional Court dated April 5, 2013 No. 7-P.

3

Decision of the Constitutional Court of the Russian Federation dated April 4, 1996 No. 9 in the case on verification of a number of legal acts in Moscow and the Moscow Region, the Stavropol Territory, the Voronezh Region and the city of Voronezh.

4

Bondar N.S. Power and freedom in the balance of constitutional justice: protection of human rights by the Constitutional Court of the Russian Federation. M., 2005. P. 362.

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According to the law a municipal servant is not entitled «to engage without the written permission of the hirer’s (employer’s) representative in paid activities funded exclusively by foreign states, international and foreign organizations, foreign citizens and stateless persons». But if a municipal servant is a foreign citizen, it is necessary to answer the question of whether he/she could engage in paid activity which is partially funded by foreign states, international and foreign organizations, foreign citizens, and partially – at the expense of Russian citizens or Russian organizations. This example represents a gap in legal regulation, which should be eliminated. Addressing these problems requires a careful analysis of federal and regional legislation for improved regulation of these issues, given that they relate to human and civil rights the unjustified restriction of which on constitutional grounds would prejudice the whole legal system. Presidential Decree dated May 18, 2009 No. 557 approved the List of offices in federal public service upon appointment to which the citizens and upon filling of which federal public officials are obliged to provide information on their income, property and property-related obligations, as well as information on income, property and propertyrelated obligations of their spouse and minor children. Letter of the Russian Ministry of Labor dated December 25, 2014 No. 18-0/10/В-8980 On Assessment of Corruption Risks by Federal State Bodies (together with the Methodological guidelines for assessment of corruption risks arising from implementing the functions) has determined the functions of federal executive bodies which are prone to corruption. The list contained in these Methodical guidelines is not exhaustive and is advisory in nature. However, with some deletions it may be applied to determine the corruption-prone functions in a particular organization established on the basis of the federal law to perform the tasks assigned to federal state bodies to positions related to corruption risks. It should be borne in mind that these organizations do not institute or consider cases on administrative offenses, do not carry out administrative investigations, do not open criminal cases or conduct criminal investigations. Introduction of a specific prohibition, restriction or obligation to the legislation is conditioned by the choice of legal regulation 211

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means (obligation, permission, prohibition, restriction). Currently, however, such a choice is subjective and is hardly substantiated in the documents accompanying draft legal acts. Distinguishing between prohibitions and restrictions seems difficult, as evidenced by comparing their doctrinal classifications. From a legal point of view, the choice of regulatory means shall be determined by a number of conditions that can be accepted and effectively used in law enforcement. Scientific analysis allows us to offer a list of functions performed by public authorities or public officials which are associated with corruption risks. These functions may include: – placing orders for procurement of goods, works and services; – execution of administrative and regulatory, organizational and economic functions; – provision of public services to citizens and organizations; – implementation of internal control measures; – budget planning; – preparation and adoption of decisions on the allocation of financial and other material resources; – arrangement of sale of federal property and other property belonging to the Russian Federation; – management of state and municipal property; – conducting mandatory expert examination; – issuing permits, storage and distribution of materials and equipment. At the same time, along with the use of these functions it is advisable to conduct further assessment of corruption risks arising from the activities of civil servants (employees) filling the appropriate positions with the use of the following additional criteria: a) availability of resources the access to which may cause corrupt conspiracy; b) availability of interest which is the driving force behind the activities of the participants of potential corrupt practices; c) possible damage that corrupt behavior of the servant filling the appropriate position may cause to interests of the state, society and individual; d) availability of an authority to take decisions regarding resource the access to which may cause corrupt conspiracy. 212

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In view of this approach, it is important to analyze the activities carried out by bodies and organizations for the functions and powers potentially subject to corruption risks in order to carry out deeper analysis of administrative processes. This will reduce the number of persons covered by the prohibitions, restrictions and obligations established in order to combat corruption and strengthen the control over authorities for the prevention of corruption and other offenses. The proposed criteria could be used for further improvement of approaches to risk assessment of the UN Global Compact1, risk management standards of ISO 31000: 20092, GOST R. 31000:20103 and FERMA4. In addition, the described criteria may be considered in the methodological guidelines of the Ministry of Labor of the Russian Federation on assessment of corruption risks. In the theory of law and legislation prohibitions, restrictions and obligations in the public service are considered as an essential element of public official order. In this regard, there are questions of determining the limits of legal regulation, including the feasibility of further expansion of these prohibitions, restrictions and obligations, as well as the optimality of measures taken thereunder. It is worth noting such public service issue as the legitimacy of the establishment of certain prohibitions and restrictions, as they can take exaggerated forms. For this reason, some scholars point to the need for compliance with p. 3 Art. 55 of the Russian Constitution. In this case specific prohibitions and restrictions may be assessed in terms of the harm caused by prohibited conduct of a public servant, and correctly attributed to the branch of law with specific sanctions5. A number of prohibitions and restrictions imposed for the purpose of combating corruption are criticized in terms of their redundancy; some prohibitions do not fit the existing legal system. These are 1

UN Global Compact. Risk Assessment Guide. NY, 2013. URL: http://www. unglobalcompact.org/ library/411

2

URL: http://www.iso.org/iso/ru/catalogue_detail?csnumber=43170

3

URL: http://protect.gost.ru/document.aspx?control=7&baseC=6&page=3& month=9&year=-1&search =&id=179229

4

URL: http://www.ferma.eu/app/uploads/2011/11/a-risk-management-standardrussian-version. pdf

5

See: Spector E.I., Sevalnev V.V., Matulis S.N. Prohibitions and restrictions in law and corruption // Journal of Russian Law. 2014. No. 10. P. 158–167.

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legislative initiatives such as the prohibition of admission to civil and municipal service of citizens with tax arrears and overdue utility payments, prohibition to children of public servants to study and receive medical care abroad, etc. An emerging trend of indiscriminate establishment of prohibitions and restrictions not only encourages good behavior, but also can lead to building a system of excessive restrictions in public (municipal) service. There are diametrically opposed opinions on the abolition of anticorruption prohibitions and restrictions for certain categories of public servants and their application in their entirety to the persons who do not have the status of public servants. Thus, it is noted that «the practice of scaling back (but not cancellation) of certain prohibitions for servants of groups of associates may be observed in some foreign countries. Russian legislator is also following this way... But on the whole the time to cancel or reduce the effects of any anti-corruption prohibitions for all categories of public and municipal servants in the Russian Federation has not yet come»1. Thus, further adjustment of regulatory legal acts containing prohibitions, restrictions and obligations established for the purpose of combating corruption is required taking into account their practical application. One has to agree with the fact that restrictions and prohibitions shall be imposed differentially depending on the area of activity, scope and content of person’s competence. At the same time this does not exclude the possibility of corresponding regulation within a single regulatory legal act. Such an approach to determination of anti-corruption standards increases the systemic nature of regulation of these relations. It must be admitted that the Russian Federation has developed a system of multiple acts related to restrictions and prohibitions. For instance, for the head of local administration being a municipal servant (position is filled by a contract), the restrictions and prohibitions in scattered form, but somewhere repeating, are established in at least three Federal Laws – On General Principles of Local Government Organization in the Russian Federation, On Combating Corruption and On Municipal Service in the Russian 1

Quoted from: Corruption: nature, manifestations, combating / managing editor T.Ya. Khabrieva. M., 2012. P. 367.

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Federation. Such a fragmentary legal regulation is inefficient in terms of law enforcement. International experience proves the need to implement a systematic approach in the selection of administrative prohibitions and restrictions. At the same time we should not expect that we can once and for all build a set of prohibitions and restrictions which will be universal in nature. Corruption as any other social phenomenon adapts to changing conditions, including legislation. That is why the state establishes and elaborates legal controls, including restrictions and prohibitions, adequate to existing socio-economic, political and legal environment1. Introduction of a specific prohibition, restriction or obligation to legislation shall be clearly conditioned by the choice of legal regulation means (obligation, permission, prohibition, restriction). § 4. CONFLICT OF INTEREST AND THE WAYS TO GET IT SETTLED

The concept of «conflict of interest» as one of the most important legal means for combating corruption gains an increasing relevance in the system of conceptual framework of public administration. The content of this notion seems to be clear to such an extent that its statutory definition may seem useless, because the words «interest» and «conflict» are clear to everyone. In fact, a «conflict of interest» is one of the most complex and polysemantic concepts, which occur in the domestic legislation. In Art. 10 of the Law on Combating Corruption a conflict of interest refers to a situation where personal interest (direct or indirect) of a person holding office which provides for the obligation to take measures to prevent and resolve conflicts of interest, affects or may affect proper, objective and impartial performance of official (job) duties (exercise of powers). Let us review the concept of «conflict of interest» in the context of amended Art. 10 of the Law on Combating Corruption (rev. October 5, 2015 No. 285-FZ). 1

See analytical report «Comparative analysis of legislation on civil service of foreign countries and the Russian Federation and development of recommendations for improving the legal framework of public service in the Russian Federation related to the provision of conditions for anti-corruption conduct of civil servants» / A.F. Nozdrachev, L.A. Chikanova. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2014.

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The range of persons covered by this concept is of key importance. In the original version of the Federal Law On State Civil Service in the Russian Federation (Art. 19) and the Law on Combating Corruption (Art. 10) the concept of «conflict of interest» was directly associated with the relations of public or municipal service and the subjects of conflict of interests were only public and municipal officials, but a new definition becomes as broad as possible. It is extended to all relations associated with the performance of official (job) duties by persons obliged to take measures in preventing and resolving conflicts of interest. However, a new definition of «conflict of interest» is far from perfect. Not only does it meet the criteria of brevity, but also raises a number of questions. And first of them is who are those persons holding office which provides for the obligation to take measures to prevent and resolve conflicts of interest? Federal Law dated October 5, 2015 No. 285-FZ refers public and municipal servants to the number of these persons (Art. 8, 9). Legal uncertainty in respect of persons holding public office existed for a long time. In Article 12.1 of the Law on Combating Corruption which establishes restrictions and obligations imposed on persons holding public office in the Russian Federation and public office in the constituent entities of the Russian Federation, did not contain obligation to report personal interest in the performance of official (job) duties which may lead to a conflict of interest and to take measures to prevent such a conflict. The sole responsibility of the person holding public office in the Russian Federation (public office in the constituent entity of the Russian Federation) relating to the prevention of conflict of interest was the transfer of securities (interests, shares in the authorized (share) capitals of organizations) for trust management in accordance with the civil laws of the Russian Federation. According to para. 1 p. 1 Art. 13.1 of the Law on Combating Corruption in the event of failure to prevent or resolve the conflict of interest with the said public official being a party thereto, this public official shall be dismissed (removed) in connection with the loss of trust. Thus, the Law on Combating Corruption, without establishing obligation of the person holding public office in the Russian Federation 216

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(public office in the constituent entity of the Russian Federation) to take measures to prevent or resolve conflicts of interest with the said person being a party thereto (except for the transfer of securities (interests, shares in the authorized (share) capitals of organizations), provided for liability for failure to comply with that obligation, which is wrong from a legal point of view. Federal Law dated October 5, 2015 No. 285-FZ (Articles 1, 2, 3, 4, 6) clarified this issue: the persons holding public office in the Russian Federation and public office in the constituent entities of the Russian Federation are obliged to report the occurrence of personal interest which results or may result in a conflict of interest, and take measures to prevent or resolve a conflict of interest. The above approaches to the definition of «conflict of interest» are provided by the Labor Code of the Russian Federation (Art. 349.1, 349.2) for the employees of public corporations and state-owned companies, the Russian Pension Fund, the Social Insurance Fund, the Federal Mandatory Medical Insurance Fund of the Russian Federation and other organizations established by the Russian Federation on the basis of federal laws, and organizations established to perform the tasks assigned to federal public authorities. The new definition of «conflict of interest» covers a fairly wide range of persons obliged «... to take measures to prevent and resolve a conflict of interest», but it appears that this range is not clearly defined. Instead of including an unambiguous definition of the subject of conflict of interest, the legislator followed the path of numerous references to identify specific obligated persons contained in separate laws – the laws on public and municipal service, public administration (regulation) in government agencies, public corporations, companies, etc. The term «a person holding office which provides for the obligation to take measures for the prevention and resolution of a conflict of interest» is quite complex and not entirely clear, which, in turn, makes it difficult to understand the essence of a conflict of interest. There are good reasons to believe that the list of these persons is open, since we are dealing with the provision on other organizations established by the Russian Federation on the basis of federal laws, and organizations established to perform the tasks assigned to federal state bodies. For example, the following question needs to be clarified: 217

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whether persons that are not public servants, municipal servants, but that provide state, municipal (public) services (auditors, notaries, appraisers, experts, arbitration receivers, arbitrators, etc.) are the subjects of conflict of interest in the performance of public services. Do the subjects of a conflict of interest include persons who permanently or temporarily are holding office associated with the implementation of organizational-administrative or administrative duties, or persons specially authorized to perform such duties in legal entities under private law, regardless of the legal form, in accordance with the law? Could the officials of juridical persons or natural persons become subjects of a conflict of interest in case of receipt of illegal income from them, for example, by public officials or by other persons with the participation of these persons? In our view, there are other uncertainties in defining a range of subjects of a conflict of interest. We believe that to designate the range of persons who are obliged to take measures to prevent and resolve conflicts of interest, we can use a universal concept – «a person endowed with public (state and municipal) authority». This designation of the subject responsible for occurrence of a conflict of interest is sufficiently definite. This concept is in line with international conventions on combating corruption. The definition of «official endowed with public (state and municipal) authority» means any person who: is engaged in the legislative, executive or judicial authorities, including those holding public office, and their staff; holds judicial office, including prosecutors and investigators; performs public function, in particular in public agency or organization; is engaged in any activity in the state interests authorized by the state (for example, a task in connection with public procurement); provides public services according to the law, etc. It is worth discussing the proposal on application of the provisions of the law on the prevention and settlement of conflict of interest to official representatives of political parties and candidates for public (political) positions (those in the succession pool under the direct Russian President’s patronage («Golden 100», «presidential thousand»), as well as any person who expects to become a public official (either from the federal pool of administrative staff or the personnel reserve of the constituent entity of the Russian Federation). 218

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Inclusion of these persons in the number of «obliged to take measures to prevent and resolve conflicts of interest» would be consistent with international conventions. Thus, a conflict of interest is a situation where personal interest of a person affects or may affect proper, objective and impartial performance of official (job) duties (exercise of powers). Assessment of «proper, objective and impartial performance of duties» is inevitably linked to the subjective opinion about attitude to actions (decision) of the subject of conflict of interest, since there is no objective and precise criteria for measuring impartiality and objectivity. In some cases, the decision not caused by any personal preferences and objective (formally adequate to reality) may not be recognized as such, in other – biased and totally subjective decision (action) may be evaluated as fair, honest, reasonable and expedient act. Indeed, transparency of the decision does not always allow evaluating it as objective, required and in compliance with statutory requirements and impartial, though, no doubt, it increases the objectivity and impartiality. However, not all the decisions in public sphere may be (and should be) transparent. This is dictated by the requirements for the protection of state and public interests. The tendency towards non-transparency of decisions is particularly characteristic of private sphere, which essentially should be regarded as unlawful. The emergence of personal interest affecting proper objective and impartial performance of official (job) duties should be identified on the basis of the fact that a person knowingly commits an act, even if it had no direct intent to improper, biased and partial performance of duties. Conflicts of interest should be identified solely on the basis of actual facts, but not on assumptions about the possibility of actions of a person who is obliged to take measures to prevent and resolve conflicts of interest. This approach may eliminate the issue of evaluation subjectivity related to substantive possibility, which arises, in particular, from the established definitions of components of a conflict of interest. The term «personal interest» appears to be unreasonably broad in terms of the range of persons covered by it. It is clear that it should include and it includes personal interests, i.e. those directly 219

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or indirectly related to the person concerned. It also relates to the interests of his/her family, in particular parents, spouses and children. But the inclusion of third party interests in the concept of «personal interest», i.e., persons in kinship or in-law relationship (brothers, sisters, parents, children of spouses and spouses of children), as well as citizens and organizations bound by property, corporate or other close relationships with obliged person and (or) persons in kinship or in-law relationship, seems problematic. The issue of third party interests is largely delicate. Upon revealing any such interests a specific approach should be applied in each case taking into account the nature of family, kinship, friendship (e.g., work colleagues), or purely personal relations. Recognition of a third party interest that affects or affected the exercise of official powers is only possible on the basis of evidence of close and long-term relationships. At the same time, the established definition of «personal interest» is quite narrow in the meaning that is given to the word «interest» by the Law on Combating Corruption in the new edition. This takes into account only financial (material) interest of a person. Still it ignores everything that can cause a person’s direct personal interest in other (family, political, professional, religious, etc.) terms. Financial interest is, no doubt, the main and the most significant sign of conflict of interest in relation to combating corruption. A conflict of interest with financial motive is the basis of corruption. This is not a corruption tort, but the situation, which is always in the plane of corruption torts. However, this motive may be not the only sign of conflict of interest. This definition of personal interest does not allow prompt identification and accurate determination of a conflict of interest in a variety of other situations not related to material interests. The Supreme Court of the Russian Federation noted the unlawful restriction of personal interest by vested interests. Thus, para. 16 of Resolution of the Plenum of the Supreme Court dated October 16, 2009 No. 19 On Judicial Practice in Cases of Abuse of Office and Exceeding Official Authority1 stated that personal interest can be not only lucrative: it may manifest itself in an effort of the official to gain 1

Bulletin of the Supreme Court of the Russian Federation. 2009. No. 12.

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non-material benefit caused by such motives as careerism, nepotism, desire to embellish the actual situation, receive return service, earn support in any matter, disguise the incompetence, etc. In addition, it is stated that the use by official of his/her authority contrary to the interests of service should also be considered a protectionism which refers to illegal assistance in employment, promotion, encouragement of subordinate, as well as other clientelism at work committed out of mercenary or other personal (non-material) interest. Thus, the law enforcer de facto significantly expands the boundaries of the concept of «personal interest» in practice. Although the opinion of the Supreme Court of the Russian Federation does not define all the concepts (such as «nepotism», «careerism»), substantially it should serve as the basis for the definition of «conflict of interest» and be appropriately reflected in the provisions of the Law on Combating Corruption. Statutory definition of «personal interest» includes an indication not only to direct but also to indirect mercenary personal interest. It’s difficult enough to say what meaning the legislators imply in this case1. Construction of statutory definitions of «conflict of interest» and the related concept of «personal interest» suggests that by using the expression «indirect personal interest» the legislator is referring to the possibility of obtaining by third parties related by kinship, inlaw, property, corporate or other close relationships with the «person holding office which provides for the obligation to prevent and resolve conflicts of interest» of revenue in the form of money, valuables, other property or property-related services, other property rights as a result of improper, biased and partial performance of his/her official (job) duties. However, this assumption may be wrong, because it is judgment-based. It is necessary to clarify the concept of «related persons», given their open-ended list in p. 2 Art. 10 of the Law on Combating Corruption. It is not clear what persons are related by «close relationships», in addition to kinship, in-law, property and corporate relations. This matter requires specific, definite understanding. Such 1

See: Statement to Federal Law dated December 25, 2008 No. 273-FZ On Combating Corruption / edited by S.Yu. Naumov, S.E. Channov. M., 2009. P. 202.

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persons include parents, spouses, children and other close relatives who in any case have material interest and may receive revenue in the form of money, property, etc. from the salaries of persons holding relevant office for the performance of their duties. In addition, it needs to clarify the concept of improper biased and partial performance of official duties resulting in an opportunity for third parties to enrich themselves. This specification is quite complex apart from the concepts of «conflict of interest» and «personal interest». According to p. 1, Art. 10 of the Law on Combating Corruption, the main condition for qualification of a situation as a conflict of interest is not just the existence of personal mercenary interest, but its impact on or the ability to affect proper performance of official duties. As is evident, a new definition of conflict of interest in the wording of Federal Law dated October 5, 2015 No. 285-FZ to a large extent is probabilistic in nature. In this context, we can talk about different situations where personal interest affects or may affect proper, objective and impartial performance of official duties. «Actual conflict of interest» is a situation, which ascertains the existence of any personal interest and its actual impact on person’s performance of his/her professional and official duties. This impact depends on the nature of interests (for example, political affiliation, professional relationships, faith, family responsibilities, personal property, investments, debts, etc.) or their quantitative evaluation (for example, an interest in family business, the amount of profit or loss, etc.). In this case, a person holding office fails to take measures to prevent and resolve conflicts of interest and consciously allows the occurrence of situation resulting in a desired profit. «Possible conflict of interest» is a situation where personal interest of the person holding office is not sufficient for the occurrence of a conflict of interest at the time of consideration because there is no connection between his/her official duties and personal interests yet. But hypothetically personal interest may be manifested and affect proper, objective and impartial performance of official duties, especially in situations of their change or evolution. In all similar cases it is necessary to verify, whether the personal interests of public official can affect his/her performance of duties in new job conditions or new job responsibilities in order to ensure that a real conflict of interest has not occurred and it still remains only potential. 222

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«Alleged conflict of interest» is a situation where personal interest of the person holding office does not exist or where the facts available in this regard are unreliable, as there is only the illusion that the person has some personal interest that could affect proper, objective and impartial performance of official duties. To assess properly a situation, it is advisable to conduct an internal investigation. It is important to determine that official duties of the person are not inconsistent with his/her personal situation, that he/she commits no offenses nor shows bad faith, bias and partiality in the performance of official duties. Until these facts are proved, there is the illusion of a conflict of interest, and no charges shall be brought against this person. Conflict of interest has its duration. It must be prevented or settled in respect of personal interest, which has appeared before, during and after the performance of official duties. These are «three times of conflict of interest». The risk of conflict of interest a priori is much lower according to personal interest before or after performance of official duties associated with the decision. The boundaries are obvious basically. The conduct of an official in the course of official duties may be accompanied by personal interest in obtaining personal benefits as a result of implementation or adoption of «incentivized» decision. The period of holding office and performance of official duties is a time when the situation of conflict of interest may occur most intensively. But this does not mean that it is possible to identify personal benefit of public official in these situations immediately. Personal benefit may be manifested later, so there is no need for revealing mandatory overlap of improper, biased and partial performance of official duties and simultaneous personal gain. Such an overlap is possible, but can be extended in time. In this regard, let us consider the case of «discontinuance for the prescription of interest» where a conflict of interest is «no conflict» anymore when the facts of personal interest and improper, biased and partial performance of official duties though having taken place, but lost their significance, especially in a situation where official activity discontinued. Part 3 of Art. 17 of the Federal Law On State Civil Service determines the limitation period (two years) between the dismissal from civil service and holding office, performance of work under the 223

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terms of a civil contract in the organizations where public servant directly executed individual functions of state administration (administrative, supervision, control, etc.). Upon expiration of a twoyear period, the situation of conflict of interest shall not be considered because it cannot occur already, and the situation that occurred in the period of official activities may be considered irrelevant. Any situation where the potential receipt by the person holding office of any revenue may directly or indirectly affect (and, moreover, if it has already affected) proper, objective and impartial performance of official (job) duties (exercise of powers) may be qualified as a conflict of interest. However, the law does not mention the degree of impact of personal interest, the amount of possible income, the nature and content of improper, biased and partial performance of official duties, which is essential for the qualification of situations as a conflict of interest. All this suggests the broad sense implied by the legislator in the concept of «conflict of interest», which ultimately does not allow one to determine the totality of possible situations of conflict of interest and to distinguish them from other official situations (legitimate and illegitimate), such as disciplinary offenses, corruption offenses, crimes. Therefore, a definition of «conflict of interest» under consideration cannot be recognized a clear legal formula that can ensure the prevention of such a situation and its proper settlement. Persons holding office the substitution of which provides for the obligation to take measures to prevent and resolve conflicts of interest shall «... take measures to prevent any possibility of a conflict of interests» (para. 1 Art. 11 of the Law on Combating Corruption). These persons need to carry out their public, official activities so as to anticipate the risks of a conflict of interest and seek to «manage conflicts» that may arise in a most effective way. Primary obligation of a person who is party to the conflict of interests is to notify in the manner determined by the representative of the hirer (employer) in accordance with the regulations of the Russian Federation of the occurrence of the conflict of interest or the possibility of its occurrence, as soon as he/she becomes aware of it. This obligation under p. 2 Art. 11 of the Law on Combating Corruption complies with the requirements of para. 12 p. 1 Art. 15 of the Federal Law On State Civil Service. According to this provision one of the 224

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main responsibilities of a civil servant is to inform the representative of the employer of personal interest in the performance of official duties which may lead to a conflict of interest, and take measures to prevent such a conflict. Public (municipal) authorities do not establish any specific requirements for the notification procedure, except that the very notice shall be submitted in writing. The written notice may be either preliminary (setting out the evidence of the potential for conflict of interest), and subsequent (setting out the substance of conflict of interest). And still there is a need to clarify the form of notification of conflict of interest taking into account application of this responsibility to persons who are not in official relations. It seems appropriate, along with the provision of certificates of income, property and propertyrelated obligations, to submit declaration of private interests to the representative of the employer or the employer. The declaration should further include information about relatives of the person appointed to public (municipal) office, their places of work, job positions, the nature of work they do, securities and shares in the authorized capital of juridical persons owned by them and (or) person appointed to office. We believe that the structure of data in the forms of certificates of income, property and property-related obligations should be left unchanged for the purpose of convenience and further comparison of information for the previous and subsequent periods. Commissions on official conduct and settlement of conflict of interest may be granted the authority to mandatory review the declarations of private interests, assess the relevant risks of conflict of interest and deliver opinion on the possibility and conditions of holding the relevant office by the candidate which shall be binding for the representative of the hirer (employer). The employer representative’s responsibility is to take measures to prevent and resolve conflicts of interest1. This obligation arises, if 1

In practice, it does not exclude the situation when it would be problematic to give notice to senior official (in case of business trip, vacation, illness, etc.). Will the senior official be deemed duly notified if the notice is sent by post (telegraph, email, etc.) or by courier? Legal consequences stipulated by the legislation governing the settlement of conflict of interest may occur only when notice is received, not just sent (see: Astanin V.V. Combating corruption and prevention of corruption risks in the activities of public servants. M., 2011. P. 56).

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he/she becomes aware (in connection with the written notification of a person – party to a conflict of interest) of personal interest of a person holding position which provides for the obligation to take measures to prevent and resolve conflicts of interest, which results or may result in such conflict. In accordance with p. 3 Art. 11 of the Law on Combating Corruption execution of the above responsibility requires the provision concerning the need to establish the date of receipt of notice by the employer’s representative. Only after its receipt, one can draw conclusions about legal consequences of actions (inaction) of the person obliged to take measures to prevent and resolve conflicts of interest. The representative of the hirer (employer) may obtain information about personal interest of a person – party to a conflict of interest, also from other sources: official representations, statements, messages, complaints from natural and juridical persons, from the media. The representative of the hirer (employer), depending on factual circumstances, shall inform a person – party to a conflict of interests, of the existence of potential conflict, of the inadmissibility of certain actions that may contribute to actual occurrence and development of a conflict of interest. Performance of this obligation by the representative of the hirer (employer) may be effected in the form of conversation, explanation of legal consequences of failure to prevent and resolve conflict of interest. The requirement to renounce private interests, assets, etc., as well as the prohibition to perform certain actions (inaction) will be effective and lawful. Of course, the representative of the hirer (employer) shall set an example of honesty by his/her behavior – be impartial and fair. The Law on Combating Corruption (Article 11) provides a representative of the hirer (employer) with ample opportunities to take more radical measures aimed at preventing or resolving conflicts of interest: – change in official position of the person holding office which provides for the obligation to take measures to prevent and resolve conflicts of interest; – disqualification or withdrawal of such person; – removal of such person from office; – transfer of securities (interests, shares in the authorized (share) capitals of organizations) owned by a person holding office which 226

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provides for the obligation to take measures to prevent and resolve conflicts of interest for trust management in accordance with the civil law. Preventing or resolving conflicts of interest may comprise changing the official position of the person holding office which provides for the obligation to take measures to prevent and resolve conflicts of interest, which is a party to the conflict (hereinafter – a person being a party to a conflict of interest). Changing the official position of a person being a party to a conflict of interest may be temporary or permanent, expressed in transfer to another position or amendment of the terms of service contract or labor contract that does not constitute transfer. Transfers are regulated by the laws on civil service, in some cases – by labor legislation. Settlement of conflict of interests in this way is possible only on the basis of mutual consent. Permanent transfer to another position or permanent change in service contract or labor contract, under the general rule, may be effected only with the consent of a person being a party to a conflict of interests. Preventing or resolving a conflict of interests may be achieved by suspending a person being a party to a conflict of interests from official (job) duties in the prescribed manner. Suspension from official (job) duties is permitted as a temporary measure for the period of settlement of the conflict of interests, because at this stage the presence or absence of conflict of interests is still to be determined, as well as a guarantee for a person being a party to a conflict of interests, he/she reserves the right to salaries for the duration of the suspension from office. Assessment of suspension of a person being a party to a conflict of interests from the official (job) duties as a way of resolving conflict of interests has dual nature. Some domestic researchers find this legal framework for settlement of conflict of interest unacceptable, «when based only on the assumption of a personal interest the representative of the employer may decide to suspend civil servant from office»1. Supporters of this view believe that this «situation can lead to a violation of the right to work, professional dignity and 1

Gusev A.F. Russian state civil service: problems of legal regulation. Ekaterinburg, 2005. P. 177.

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reputation, and is contrary to the presumption of diligent conduct of civil servant»1. Another point of view is to recognize the admissibility of suspension from official (job) duties as a method of preventing or resolving conflict of interests in order to «protect public interest over private interests»2. Category of prevention and settlement of conflict of interests provides for a wide range of ways to prevent corrupt conduct and corruption offenses where suspension from official (job) duties seems to be not the severest measure of restriction of presumed or actual personal interest. It may be affirmed that suspension from official (job) duties is an effective measure to prevent corrupt conduct, and thus to prevent conflict of interests. Preventing or resolving conflict of interests may comprise a refusal of a person being a party to a conflict of interests from the benefits which became the cause of the conflict (para. 4 Art. 11 of the Law on Combating Corruption). This method of prevention and settlement of a conflict of interests may be applied both in conjunction with the change of official position of a person being a party to a conflict of interest, and alone. The researchers point out correctly that the application of this method is possible «only if these benefits have one-time nature. Since otherwise one cannot be certain that the conflict of interest will be resolved»3. Within the meaning of this method, it can be used only with the consent of a person being a party to a conflict of interests. Part 4 of Art. 11 of the Law on Combating Corruption does not establish the procedure for refusal by a person being a party to a conflict of interests from the benefits which caused a conflict of interest. «It appears that this may be a commitment to refrain from certain actions submitted in writing to the representative of the hirer or a refund of money (property), if the benefit has already been

1

lbid. P. 178.

2

Presnyakov M.V., Channov S.E. Administrative and legal regulation of official relations: theory and practice. Saratov, 2008. P. 230 and the following.

3

Statement to Federal Law dated December 25, 2008 No. 273-FZ On Combating Corruption (paragraph-to-paragraph) / I.S. Alikhadzhieva, D.S. Velieva, G.N. Komkova et al / edited by S.Yu. Naumov, S.E. Channov. M., 2009. P. 74.

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received»1. We believe that if a person holding office which provides for the obligation to take measures to prevent and resolve conflict of interest is offered undue benefit, then in order to prevent a conflict of interest, he/she shall: refuse from undue benefit; try to identify the person (natural, juridical) which has made such an offer; avoid prolonged contacts associated with the offer of undue benefit; if undue benefit can neither be rejected nor returned to the sender, it shall be transferred to the relevant public authorities; notify the representative of the hirer in writing of the offer of undue benefit; continue performance of duties in the usual manner, in particular with respect to the matter being the subject of offer of undue benefit. If the benefit which caused a conflict of interest has already been obtained and it cannot be returned, for example, if the property is already used or sold or the money cannot be returned to organization due to its winding up and so on, it is necessary to inform the representative of the hirer in writing. Accordingly, the use of this method in such situations becomes unacceptable. Legal validity of refusal by a person – party to a conflict of interest from benefit and consequences of a breach of commitment to such a refusal remain unclear. Prevention and settlement of conflict of interest may be carried out through disqualification or withdrawal of a person being a party to a conflict of interest in cases and in the manner prescribed by the laws of the Russian Federation. If a person being a party to a conflict of interests has private interests or controls them and if those interests could potentially conflict with the administrative decisions made or implementation of control over activities of a particular organization, etc., then this problem may be resolved by temporarily entrusting this mission to another person who is not a party to a conflict of interests. Disqualification may be carried out both at the initiative of a person being a party to a conflict of interest (withdrawal) and at the initiative of the representative of the hirer. In any case, disqualification (withdrawal) of a person being a party to a conflict of interest is not associated with his/her removal from office. 1

Channov S.E. Prevention and settlement of conflict of interest in public and municipal service: innovations of anti-corruption legislation // Administrative law. 2009. No. 2. P. 27.

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In practice, it is not always possible to disqualify (withdraw), i.e. essentially transfer the responsibility to another person. In some cases, the «transfer of responsibility» may be made only in respect of persons who have special powers, but they may also be in a situation of conflict of interest. Sometimes disqualification (withdrawal) in general cannot be a satisfactory solution for the public authority, as this may conflict with administrative actions (distribution of competences) and procedures ensuring the legality and validity of the decisions adopted on its behalf, and thus injure its legal status and unblemished reputation that has been created for many years. Therefore, the use of other mechanisms, namely, measures aimed not at resolving the conflict of interest, but at preventing its occurrence is required in order to avoid discredit of trust. In any case, the use of disqualification (withdrawal) requires a detailed and elaborated legal regulation. If a person holding office which provides for the obligation to take measures to prevent and resolve conflicts of interest owns securities (interests, shares in the authorized (share) capitals of organizations), he/she is obliged to transfer securities (interests, shares in the authorized (share) capitals of organizations) owned by him/her for trust management in accordance with the civil law in order to prevent conflict of interest. This method of prevention and settlement of conflicts of interest is provided in p. 7, Art. 11 of the Law on Combating Corruption. General terms and forms of such transfer are established by the Civil Code of the Russian Federation (Chapter 53 Trust Management of Assets). Although the requirement for the transfer of securities (interests, shares in the authorized (share) capitals of organizations) for trust management is not new in the Russian legislation, the performance of the obligation by a person being a party to a conflict of interest is still not regulated. There are very common cases where securities, shares (interests, shares in the authorized (share) capitals of organizations) are transferred to relatives or affiliates. Such cases do not exclude personal interest of a person being a party to a conflict of interest. These persons remain the owners of the said assets and may 230

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take measures to protect and increase them, and thereby feel «comfortable» in a situation of conflict of interest1. There are quite many organizations that can accept such assets for trust management. The transfer of low-valued securities, shares (interests, shares in the authorized (share) capital of organizations) for trust management, as evidenced by the practice, is usually rejected2. At the same time the owners of respective assets often face some risk, because no one can give guarantee that management of transferred assets will be effective and will cause no reduction of its value or loss. To ensure proper performance of obligation under consideration it was proposed to adopt a special law On the Procedure for Transfer of Assets of Public Servants for Trust Management3 which could reasonably provide for legal guarantees of preservation of public servant’s assets transferred for trust management. This proposal is still relevant considering the fact that the subject of regulation of this law will be the relations associated with the transfer of assets for trust management by all persons holding office which provide for the obligation to take measures to prevent and resolve conflict of interest. Failure by a person being a party to a conflict of interests to take measures to prevent or resolve conflict of interest constitutes an offense entailing dismissal of the said person. This liability for the occurrence of conflict of interest is provided for in p. 6 Art. 11 of the Law on Combating Corruption. The dismissal of such persons shall be in accordance with the Russian legislation. Thus, a civil servant who failed to take measures to prevent and resolve conflict of interest shall be dismissed due to loss of trust in accordance with Art. 59.2 of the Federal Law On State Civil Service of the Russian Federation. Dismissal due to loss of trust shall be 1

See Letter of the Ministry of Labor and Social Protection of the Russian Federation dated October 15, 2012 No. 18-2/10/1-2088 On Review of Typical Situations of Conflict of Interest in Public Service of the Russian Federation and the Procedure for Their Settlement.

2

See: Dubik S.N. Prevention and settlement of conflict of interest in public and municipal service // Corruption: nature, manifestations, combating / managing editor T.Ya. Khabrieva. M., 2012. P. 359.

3

E.g., see: Kurakin A.V. Legal means of corruption prevention and suppression in the system of public service of the Russian Federation (theoretical and administrative aspects). M., 2004. P. 126 and the following; A.V. Kurakin. Administrative restrictions and problems of combating corruption in the civil service system // Russian justice. 2008. No. 4.

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applied by the representative of the employer based on the results of the audit carried out by the personnel department of the relevant public authority for the prevention of corruption and other offenses, and in cases where a report on the results of the audit is submitted to the Commission for settlement of conflicts of interest – based on recommendations of this Commission. A civil servant shall have the right to appeal in writing against the act of dismissal due to loss of trust to the Commission for labor disputes of public authority or the court. The list of methods to settle conflict of interests established in Art. 11 of the Law on Combating Corruption in the scientific literature1 is described as imperfect, not conducive to complete prevention of the conflict of interest, but it seems to be fairly comprehensive. The use of the proposed «new» methods to settle conflict of interest (in particular, changes in official regulations, exclusion from participation in committees, working groups and other collective bodies in the performance of functions of representative of the Russian Federation or constituent entity of the Russian Federation or a municipality in joint-stock companies; resignations in order to maintain personal interests and other) relates to the authority of the employer. The choice of truly new ways to prevent and resolve conflicts of interest should be approached very carefully. Expansion of the list may complicate an already difficult situation with prevention of conflict of interest and provide no desired results for many reasons. As already noted, the concept of «conflict of interest» is imperfect. Many human relations cannot be covered by this concept. Conjugal relationships, for example, may be terminated by divorce, but actual family relationships may be maintained. And it will painlessly remove a formal conflict of interest avoiding the need to send notices or adverse effects in the form of suspension from duty, etc. Likewise, kinship relations do not always mean close relations between people; often relatives do not maintain any relationship with each other. Conversely, the relationships of fellows, childhood friends, fellow students, coworkers, professional colleagues, people 1

See Publications of O.V. Kazachenkova, S.E. Channov, A.V. Kudashkin, A.V. Kurakin, A.D. Ilyasova and others.

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with the same hobbies and simply neighbors may be close, longlasting and trusting. Very stable conflicts of interest with respect to these persons are quite possible de facto, but it’s rather difficult to impose legal prohibitions on them. Nor can we ignore the situation when a public official does not know his relatives, due to, for example, divorce of his/her parents at a time when he/she was a young child. Therefore, de jure a person may have no information about a conflict of interest in good faith. Yet the search for new ways to prevent and resolve conflicts of interest seems to be expedient, particularly in respect of certain categories of persons holding office which provide for the obligation to take measures to prevent and resolve conflicts of interest. «Ways, forms and methods for settlement of conflict of interest in any particular case depends on the nature and extent of its aggravation, the type of service, powers, functions and areas of activity of public authority or local authority, official position and official duties...»1. Currently, there is a need to develop new ways to prevent and resolve conflicts of interest in relation to the category of persons holding public office of the Russian Federation and municipal offices. It is advisable to provide such a mechanism for the prevention of conflicts of interest which would allow maintaining their personal interests, as well as restricting participation of public officials of this category in adopting decisions that affect their personal interests in any way. It is not difficult to foresee that the application of ways to prevent and settle conflicts of interest set forth in Art. 11 of the Law on Combating Corruption in some cases will be quite problematic in view of the special status of persons holding public and municipal offices. It should be borne in mind that these persons should be considered as subjects acting independently in the prevention and settlement of conflicts of interest. In this regard, the list of methods to prevent and resolve conflicts of interest can be expanded in relation to this category of persons. Additional means of preventing and (or) settlement of the conflict of interests of persons holding public offices or municipal offices 1

Kazachenkova O.V. Anti-corruption mechanism for resolving conflicts of interest in public and municipal service // State and law. 2012. No. 3. P. 112.

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of the Russian Federation include: the disclosure of conflicts of interest in the appointment to public offices or municipal offices of the Russian Federation; suspension from decision-making in respect of individuals and organizations that are parties to the conflict of interest disclosed upon appointment to public offices or municipal offices of the Russian Federation; sale of securities and (or) assets causing a conflict of interest or having the potential for occurrence of such conflict, and other. In order to monitor compliance with the legislation on conflict of interest it seems appropriate to establish monitoring of ways and methods for the prevention and settlement of conflicts of interest by persons holding public offices of the Russian Federation and municipal offices. § 5. FINANCIAL SECURITY OF THE RUSSIAN FEDERATION AS A FACTOR TO PREVENT CORRUPTION

One of the ways to improve anti-corruption mechanisms is to find optimal mechanisms to combat money laundering. Urgency of this problem is obvious – money laundering including income derived from the commission of corrupt acts causes significant damage to the system of redistribution of national wealth of the country and contributes to further spread of corruption and increase in its scale. Legalized proceeds of crime are the material basis for organized crime and terrorist financing, as well as bribery of public officials. Threats and risks in this area may be divided into the following categories: 1) global and regional international; 2) national and regional national. Risks of global and regional international (supranational) nature are associated with strengthening of the financial base of terrorism, which leads to escalation of regional conflicts and expansion of not only economic but also social base of terrorism and proliferation of weapons of mass destruction, which is increasingly being used in inter-ethnic and inter-confessional conflicts. As a result, actions of terrorists turn into a factor of influence on political decisions. At the national (state) level, illegal financial transactions related to preferential tax treatment and non-transparent ownership structure, increase in the volume of speculative transnational financial flows 234

§ 5. Financial security of the Russian Federation as a factor to prevent corruption

and instability of financial markets generated by them, lead to the criminalization of financial and real sectors of national economy, increase in the number of entrepreneurs who have fallen into a zone of crime influence, and reduction in law abidance of financial institutions. As a result government, commercial and financial activities are penetrated by transnational criminal organizations, and the volume of investment in the economy is reducing. No less of a problem is an imbalance between reproductive finances mediating the investment process, and virtual finances mediating global financial market to some extent. Insufficiently clear distinction between these two spheres of financial and legal regulation can cause accumulation of undue national debt, when the external financial obligations of the state increase depending on manipulation of actual and contingent financial obligations in global financial turnover. Finally, at the regional national (subnational) level, the risks and threats posed by legalization of proceeds derived from the commission of corruption offenses and illegal financial transactions associated therewith contribute to the formation of favorable conditions for such phenomena as narcotics abuse, human trafficking, illegal migration, illegal use of natural resources, illegal environmental management, further increase in the scale of corruption. «Breeding ground» for their dissemination is the existence of areas of social unrest and interethnic contradictions contributing to the creation of extremist and nationalist organizations. Researchers note that money laundering is a multi-stage process the aim of which is to legalize the possession of illegally obtained proceeds through a series of financial transactions in order to subsequently freely dispose of these proceeds1. Corrupt officials may dispose of illegally obtained proceeds in several ways. One of the most common ways is to transfer revenues abroad – mainly to offshore zones by investing them in the economy of foreign countries – often followed by «reinvestment» in the Russian economy.

1

See: Kondrat E.N. Main methods of legalization (laundering) of proceeds of crime as a result of corruption offenses // Law and Economics. 2011. No. 10; Aliev V.M., Tretyakov I.L. Criminal liability for legalization (laundering) of money or other assets acquired by criminal means // Russian Investigator. 2002. No. 5; Yani P.S. Criminal liability for legalization of property acquired illegally // Law and Economics. 1998. No. 1.

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Advantages of offshore areas are predetermined by a number of factors, including preferential tax treatment, property protection, financial privacy, confidentiality of foreign currency transactions, and possibility of involvement of nominee shareholders and directors, which allows concealing the actual owner of shares. Moreover, a special agreement (Indemnity Agreement) is entered into with the directors of companies for the safe use of the concept of nominal shareholding in offshore zones with English system of law, under which they shall perform their functions exclusively within the instructions of shareholders and shall be liable for their actions immediately to shareholders1. It should be noted that a quarter of a century ago the problem of offshore business (and therefore money laundering) was virtually non-existent in Russia. The state had a monopoly on all foreign economic activity, there was no free conversion of currencies, and the economic system of the country was virtually closed. The situation has now changed dramatically. The use of offshore companies by Russian business structures has spread extremely widely – from 3.2 million offshore companies incorporated worldwide about 60 thousand are Russian. This situation poses a threat to financial and economic security of Russia: according to experts, only in 2012-2014 commercial banks transferred more than 150 billion US dollars out of the country. This has been possible due to the nature of practical application of certain provisions of Russian civil and tax law allowing the use of tax evasion schemes not having an economic substance and transfer of profits to offshore jurisdictions2. In 2015, according to the Bank of Russia3 the net outflow of capital from the private sector amounted to 58.1 US dollars. Laundering of proceeds of corrupt activities in offshore jurisdictions is carried out through various financial and nonfinancial institutions, through the use of schemes for cash withdrawal involving «technology» companies, intermediary firms, the Internet 1

See: Kondrat E.N. Op. cit.

2

See: Bauer V.P. On the implementation of the concept of Regulatory Impact Assessment in the field of tax administration of offshore activities (the case of the concept of income beneficial owner) // Business Security. 2015. No. 2.

3

Official website of the Bank of Russia. URL: http://www.cbr.ru/statistics/?PrtId=svs

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network, non-bank remittance systems, and committing crossborder transactions. Globalization of financial markets allows criminals to modify the schemes for laundering the proceeds of crime in response to law enforcement efforts, facilitates the process of legalization leveling the boundaries between internal and external sources of illegal capital. Moreover, this problem is typical not only for Russia but also for all states regardless of their level of socioeconomic development and legal system. Under these conditions, measures aimed at counteracting legalization of proceeds of corruption are undertaken both at the international (universal) and regional levels and at the level of national state. At the universal level some fundamental acts regulating the issues of combating money laundering were adopted. Thus, the United Nations Convention against Transnational Organized Crime dated November 15, 2000 attributes legalization (laundering) of proceeds of crime to international crimes (Art. 6) which pose a threat to economic security of several countries, obliging States Parties to the Convention to consider the application of measures to detect movement of cash and appropriate negotiable instruments across their borders and for such movement control without creating any obstacle to movement of legitimate capital. The UN Convention against Corruption (Art. 14) contains similar description of the preventive measures against money laundering complementing them with more advanced mechanisms. Article 52 of the Convention provides measures for recovery of assets as means for prevention of money laundering. States may require financial institutions subject to their jurisdiction to verify the identity of customers, to take reasonable measures to establish identity of owners – beneficiaries of funds deposited on accounts in a large amount and to conduct enhanced strict control of accounts opened or maintained by persons having or having had significant public authority, their family members and closely associated partners, or on behalf of any of the above persons. Such control measures are designed to detect suspicious transactions for the purpose of reporting to competent authorities and should not be construed as to discourage or prohibit financial institutions from doing business with any legitimate customer. 237

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In addition, these international legal instruments call on the states to develop and promote global, regional, subregional and bilateral cooperation among judicial, law enforcement and financial regulatory authorities in order to combat money laundering. In addressing forfeiture of proceeds of crime, consideration should be given to the recommendations contained in the UN Standard Minimum Rules in respect of non-custodial measures (Tokyo Rules) adopted by Resolution 45/110 of the UN General Assembly dated December 14, 1990. According to para. «e» Art. 8.2 of this document, the sentencing authorities may provide for forfeiture or decision on deprivation of property rights to assets as a sanction. Among the important international initiatives aimed at improving the means and procedures for combating money laundering it is worth noting the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (Warsaw Convention) adopted on May 16, 2005 in Warsaw which contains the concept of a financial intelligence unit, envisages measures for arrest, seizure and confiscation of proceeds from crime, as well as the need to consider recommendations of Financial Action Task Force on Money Laundering (FATF). The official website of the organization states that its creation «was a response to the increased volumes of laundered proceeds of crime in the world»1 and led to a sense of urgency for the development of collective measures to counter financial crimes. Currently, FATF comprises 35 member countries and two international organizations. The Russian Federation was accepted into FATF in June 2003. Mandate of FATF establishes standards and involves promoting the effective implementation of legal, regulatory and operational measures for combating money laundering, financing of terrorism, proliferation of weapons of mass destruction and other threats to the integrity of the international financial system. FATF Recommendations, which include provisions relating to the criminalization of money laundering, provisional measures and confiscation of legalized property form a comprehensive and consistent framework of measures that countries should apply 1

URL: http://www.fatf-gafi.org/home/

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to combat money laundering and terrorist financing, as well as financing of proliferation of weapons of mass destruction. Since 2003, the FATF Recommendations have been recognized by more than 180 countries as the international standards in the sphere of combating money laundering and terrorist financing. International cooperation to counter money laundering is also implemented in the Eurasian area. For example, the fundamental act of the Commonwealth of Independent States governing the prevention of laundering of proceeds derived from the commission of acts of corruption, and ensuring financial security is the Treaty of Members of Commonwealth of Independent States on Counteraction to Legalization (Laundering) of Criminal Proceeds and Financing of Terrorism which includes the following main areas and forms of cooperation of the CIS countries: 1) harmonization of legislation. In November 2013 the Interparliamentary Assembly of Members of the Commonwealth of Independent States adopted Recommendations on improving the legislation of the CIS member states on countering legalization (laundering) of proceeds from crime, terrorist financing and financing of proliferation of WMD, and in November 2014 – the model law On Counteraction to Legalization (Laundering) of Proceeds from Crime, Terrorist Financing and Financing of Proliferation of Weapons of Mass Destruction. According to these documents, the national legislation of the CIS countries in this sphere should be built considering the principles of risk-based approach, based on the identification, assessment, monitoring, control and reducing the risks of money laundering and terrorist financing. In addition, these documents encourage the CIS countries to include the problems of combating the financing of proliferation of weapons of mass destruction into the competence of financial intelligence units, as well as, where appropriate, other bodies; 2) legal assistance, including the service of documents, the arrest of criminal proceeds and funds aimed at financing the terrorism; confiscation; 3) information exchange; 4) special investigation activities; 5) consultations; 6) exchange of representatives. 239

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Institutional cooperation between the SAIs of the CIS members, coordination of their interaction and the exchange of experience within the CIS is carried out with the help of the Interstate Council of the Heads of Supreme Audit Institutions of Members of the Commonwealth of Independent States having the following main functions: – maintenance of interaction of the SAIs in order to develop coherent approaches and opinions on the theoretical and practical aspects in the field of public financial control; – ensuring systemic nature of mutual consultation and exchange of experience on issues of public financial control; – facilitation of joint and (or) parallel control and audit activities in the framework of bilateral and multilateral agreements; – development of model (exemplary) control and audit standards and guidelines; – organization and holding of multilateral consultations, seminars, conferences, specialized courses, joint research on relevant theoretical and practical problems of public financial control; – promoting vocational training, internships and advanced training of personnel of financial control authorities; – improvement of information exchange mechanism on issues of public financial control (audit); – publication in special editions (newsletters, magazines, and so forth) of materials about the work of the Council and on the experience of the SAIs of the CIS members1. Decisions of the Council are solely advisory in nature. The forms of international cooperation listed in the above mentioned international legal instruments are further developed in bilateral intergovernmental agreements2. 1

Regulation on the Interstate Council of the Heads of SAIs of Members of the Commonwealth of Independent States approved by Resolution of CIS Heads of State dated August 26, 2005. URL: http://www.cis.minsk.by/reestr/ru/index. html#reestr/view/text?doc=1820

2

Thus, the Agreement between the Russian Federation Government and the Government of the Republic of Belarus on Cooperation and Mutual Assistance in Combating Illegal Financial Transactions and Financial Transactions Related to Legalization (Laundering) of Proceeds from Crime concluded on February 12, 1999 provides for specific types of information designed for exchange which contributes to the prevention, detection, suppression and disclosure of illegal financial transactions and financial transactions related to legalization (laundering) of proceeds from crime. Similar agreements have been concluded by the Russian Federation with Kazakhstan, Georgia, Uzbekistan and other countries.

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The Eurasian Economic Union which is positioning itself as an international organization of regional economic integration having international legal personality is focusing primarily nor on financial security, nor on prevention of illegal financial transactions, but on elimination of barriers impeding free movement of capital. In turn, the free movement of capital means primarily investment of capital of the country being a Union member to another without any restrictions. Another component of this principle is the freedom of lending and remittances; third – the creation of common capital market which implies common monetary system with common currency1. All this can be regarded as a framework for principle and vectors in each area of work under consideration. In order to ensure freedom of movement of the capital, the state members of the Eurasian Economic Union should complete harmonization of their legislation in the sphere of financial market by 2025. Moreover, harmonization should be carried out so that the remaining differences do not hinder effective functioning of a common financial market within the Union. By the same date they should establish and start operating a supranational body on financial market regulation which will be located in Almaty (Kazakhstan). The Treaty requires member states not to create unnecessary barriers to trade in financial services, so the rules for the implementation of activities related to the provision of financial services established by national legislation shall be based on objective and transparent criteria, such as adequacy and the ability to deliver the service, and be no more burdensome than it is necessary to ensure its quality. It is emphasized that in case licensing procedures in any activity related to the provision of financial services should be introduced, such procedures shall not constitute a restriction on the delivery of the corresponding service. Each member state of the Eurasian Economic Union guarantees that its legislation which affects or may affect regulation of financial markets will be published in the Official Gazette, and, if appropriate, 1

For issues of the formation of a single financial market on the post-Soviet space, see: International legal aspects of the implementation of the interests of the Russian Federation in connection with the formation of a Single Economic Space: scientific publication. M., 2012; Legal problems of formation of interstate associations (the case of free trade zone and the Eurasian Economic Union customs union): monograph / managing editor V.Yu. Lukyanova. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2012.

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on a dedicated website on the Internet network so that any person whose rights and (or) obligations may be affected by this legislation would have an opportunity to review it. It is also emphasized that publication of such legislation should include explanation of the purposes of its adoption and shall be made within a period ensuring legal certainty and reasonable expectations of persons whose rights and (or) obligations may be affected by this legislation, but in any case before the date of its entry into force1. As for the issues of formation of a single system to ensure financial security of member states of the Union, the Treaty on the Eurasian Economic Union does not regulate them. The only international legal instrument in this area is the Treaty on Counteraction to Legalization (Laundering) of Proceeds from Crime and Terrorist Financing when Moving Cash and (or) Financial Instruments across Customs Border of the Customs Union dated December 19, 20112. However, the range of issues included in the Treaty is extremely narrow – preventing the possibility of using cash and (or) financial instruments moved across the customs border of the Eurasian Economic Union for the purpose of legalization (laundering) of proceeds from crime and (or) terrorist financing. Under these conditions, a significant amount of measures aimed at preventing laundering of corruption proceeds should be implemented by member states of the Eurasian Economic Union at the national level. Anti-corruption legislation is enhancing reducing the risks of corruption in the economic sphere. Special legislative acts in the field of combating money laundering are adopted (in the Russian Federation such act is Federal Law dated August 7, 2001 No. 115-FZ On Counteraction to Legalization (Laundering) of Proceeds from Crime and Terrorist Financing3), as well as acts aimed at adjustment of legal instruments regulating economic activities, their harmonization with the requirements of the Recommendations on combating money laundering and terrorist financing4. Russian Government Resolution 1

Articles 70 and 103 of the Treaty on the Eurasian Economic Union, Annex 17.

2

Official Gazette of the Russian Federation. 2013. No. 21. Art. 2561. Currently, there is an ongoing process of accession to the Treaty of the Republic of Armenia and the Kyrgyz Republic.

3

Official Gazette of the Russian Federation. 2001. No. 33 (p. I). Art. 3418.

4

For analysis of compliance of individual concepts of Russian legislation with the requirements of the FATF Recommendations, see: Transparency of legal persons and associations: ways to reduce

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dated June 30, 2012 No. 6671 approved the requirements for internal control rules developed by organizations engaged in transactions with funds or other assets, and individual entrepreneurs. This document determines the requirements for the development by organizations (except for credit institutions, including professional equity market participants) engaged in transactions with funds or other assets, the internal control rules in order to prevent legalization (laundering) of proceeds from crime and terrorist financing, which: – regulate the organizational principles of work aimed at countering the legalization (laundering) of proceeds from crime and terrorist financing in the organization; – establish responsibilities and procedures for public officials and employees for the implementation of internal control; – determine the deadlines for internal controls responsibilities, as well as persons responsible for their implementation. For instance, the requirements in question contain a list of actions that an organization should take when identifying unusual transactions in the customer’s business. As explained in information letter of the Bank of Russia dated March 31, 2010 No. 17, if the credit institution has identified any transaction that meets the criteria of unusual transactions set out in the internal control rules and decided to classify this transaction as «suspicious» according to the analysis of documents submitted by the customer, then regardless of the completion of settlement operation under the specified transaction the credit institution is obliged to provide this information to the authorized body within the period prescribed by the federal law. In this case the decision to classify a transaction as «suspicious» shall be made by the credit institution independently in each case. A special role in the field of counteraction to legalization (laundering) of proceeds from crime and terrorist financing is assigned to the Federal Service for Financial Monitoring (Rosfinmonitoring). the ML/FT risks: monograph / V.I. Lafitsky, A.M. Tsirin, N.A. Povetkina et al; managing editor V.I. Lafitsky, M.A. Tsirina. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation; ITMCFM. Yaroslavl, 2014; Prospects of mechanisms for blocking, seizure and confiscation of criminal assets and mechanisms for confiscated assets management / V.I. Lafitsky, A.M. Tsirin, N.A. Golovanova et al; managing editor V.I. Lafitsky. M.: Institute of Legislation and Comparative Law under the Government of the Russian Federation; ITMCFM. Yaroslavl, 2014. 1

Official Gazette of the Russian Federation. 2012. No. 28. Art. 3901.

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The scope of activities of this Service may be judged on a number of facts. As of January 1, 2015, it covers more than 120 thousand financial institutions that perform customer orders on transactions with funds or other assets. The Federal Service for Financial Monitoring registered about 16 thousand organizations that do not have supervisors. During 2014 the Federal Service for Financial Monitoring received nearly 10 million messages on suspicious transactions with funds or other assets. This wide monitoring of financial market allowed it to identify and eliminate 15 «shadow» platforms of illegal financial transactions amounting to about 90 billion rubles only in 2014. As a result, in the Samara Region alone the monthly volume of suspicious transactions declined by almost 100 times. New solutions established by Federal Law dated June 28, 2013 No. 134-FZ On Amendments to Certain Legislative Acts of the Russian Federation to Combat Illegal Financial Transactions1 allowed the banks to suspend suspicious transactions for the amount of 137 billion rubles, thereby not allowing them to «withdraw into the shadows». As a result of measures taken jointly by the Bank of Russia, law enforcement agencies and other concerned departments, cash flows going abroad and returning from abroad on suspicious grounds have been reduced almost twice, the amount of «shadow» encashment transactions reduced by more than one and half times. At the same time we must acknowledge that national legal regulation relating to prevention of legalization (laundering) of proceeds from crime, including corruption proceeds, needs further improvement. There are a number of areas to form a national mechanism to ensure transparency and protect business environment against financial risks and threats. The first area is the prevention of transferring Russian capital outside the Eurasian Economic Union. According to official data of the Federal Service for Financial and Budget Supervision, 27,500 administrative offenses were identified in 2014, including those 1

Official Gazette of the Russian Federation. 2013. No. 26. Art. 3207.

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related to non-performance of obligations on repatriation of foreign currency proceeds. These processes leave the Russian economy without funds required for its development, create additional financial risks and hinder the transparency of business environment. Therefore, a set of measures to suppress illegal flight of Russian capital and to improve national legal mechanisms for the protection and repatriation (return) of Russian capital located abroad is required. Without these measures, the introduction of a mechanism to ensure transparency and protection of business against financial threats and risks will not provide the desired effect. The second area is the development of comprehensive doctrinal approaches to further development of the concept of beneficial owner of income and its implementation in the Russian legislation, on the one hand, and the distinction between the concepts of beneficial owner of income, companies and assets – on the other. In the Russian legislation there is an intermixture of the international concept of beneficial owner of income, and the concepts of beneficial owner of property (assets) and beneficial owner of companies1. Due to mixing of two concepts the definition of the concept of beneficial owner established in Art. 7 of the Tax Code of the Russian Federation (RF Tax Code) is rather confusing and does not allow determining who is the beneficial owner of income – a foreign company directly receiving income and claiming to receive tax relief under the agreement, or, for example, a shareholder of this company. Thus, according to para. 1 Art. 11 of the Agreement between the Government of the Russian Federation and the Government of the Kingdom of the Netherlands dated December 16, 1996 On Avoidance of Double Taxation and Prevention of Fiscal Evasion with Respect to Taxes on Income and Property interest accrued in the Russian Federation and payable to a resident of the Netherlands shall be taxable only in the Netherlands if such resident is the actual owner of interest. In other words, if a resident of the Netherlands wants to be exempt at source in the Russian Federation, it should have the status of beneficial owner. Where a resident of the Netherlands is not recognized as a beneficial owner 1

See: Balakina Z.V. Legal problems of interpreting the concept of beneficial owner of income in the Russian tax legislation // Russian Law Journal. 2015. No. 6. P. 185–196.

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of interest and is considered a conduit company that transfers interest to any other person – non-resident of the Netherlands, including a resident of the Russian Federation, being a beneficial owner, the withholding tax in Russia shall be withheld at the tax rates established by the RF Tax Code. However, in accordance with the rules of pass-through taxation of income from sources in the Russian Federation referred to in Art. 7 of the RF Tax Code, the withholding tax in the Russian Federation on interest paid to a resident of the Netherlands shall not be charged not only when a resident of the Netherlands has the status of beneficial owner of interest received, but also when it applies to conduit company and beneficial owner is a resident of the Russian Federation. This example and in general the analysis of tax legislation shows the need for comprehensive doctrinal approaches to further development of the concept of beneficial owner of income and its implementation in the Russian legislation. An important area of counteraction to legalization (laundering) of proceeds from crime should be the improvement of civil legislation of the Russian Federation in terms of legal regulation of economic dependence of juridical persons. The third area of forming a national mechanism to ensure transparency and protection of business environment against financial threats and risks implies the adoption of additional measures to enhance the transparency of banking and investment segments of the country’s economic system. According to the Deposit Insurance Agency, as a result of audits conducted in the first half of 2014 more than 170 bank bankruptcy frauds were identified. The total amount of embezzlement amounted to 800 billion rubles. Even more disturbing situation persists in the field of investment. Investment legislation does not contain sufficient guarantees of preservation of invested funds and does not provide the necessary balance between investors’ costs and their profits. As a consequence, the majority of Russian investors either lost their funds, or receive dividends disproportionate to their investment deposits. A higher level of security of banking and investment assets of enterprises and individuals is required, which is impossible without the introduction of specific mechanisms to ensure 246

§ 6. Protection of persons informing of facts of corruption

transparency and protection against financial risks of banks and investment vehicles. Only such a comprehensive approach aimed, on the one hand, at prevention of flight of Russian capital, on the other – at suppression of their illicit trafficking within and outside the Russian Federation, on the third – at introduction of common standards, as well as special measures to ensure transparency and protect the most risk-sensitive segments of the national economy, will create a strong foundation for country’s financial security, which, in turn, will serve as an effective tool for combating corruption. § 6. PROTECTION OF PERSONS INFORMING OF FACTS OF CORRUPTION

In addition to the legislative anti-corruption measures, one of the mechanisms to combat corruption is the ability of a natural person to report the fact of corruption with further protection of his/her rights and interests. Lack of protective measures against such persons confirms half-measure in combating corruption. Protection of persons, who reported corruption offenses, by its very nature being a multifaceted problem, has, along with legal, psychological, ethical and behavioral aspects. It should be noted that in patriarchal societies, the term «whistleblower» still has a very negative connotation, and it is considered a sign of good manners to endow officials because they «quickly» perform legal acts in connection with an appeal to them. Statement of corruption is a common practice to report any misconduct, that is, disclosure by a natural person who is an employee of a state or municipal body, institution, organization or private enterprise, a representative of the public, of the information on cases of corruption and other violations of the law. Fight against corruption, including the strengthening of transparency and public involvement, are paid much attention in most foreign countries. In this context, it is possible to mention the adoption in some states of a special legislation on the protection of persons reporting the fact of a corruption offense or otherwise assisting in the fight against corruption, as well as their promotion. 247

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By ratifying the UN Convention against Corruption1, the Russian Federation committed itself to take it as a legal framework for the protection of those who report cases of corruption (Art. 33). Such persons associated with at least one of the acts of crime listed in the UN Convention against Corruption (Art. 15–25), are deemed whistleblowers. In accordance with Art. 33, each member state considers possibility of inclusion in its domestic legal system of appropriate measures to ensure the protection of these persons from any unfair treatment. However, this approach of the United Nations Convention against Corruption is not fully reflected in domestic law, in which there are no legal grounds for the establishment of the protection of certain categories of natural person who reported corruption from further persecution and pressure. In Russia, such a protection is granted only to the state and municipal servants who have notified the representative of the hirer (employer), the prosecuting authorities or other state bodies about the facts of appeal in order to induce those officials to commit corruption offenses (p. 4 Art. 9 of the Law on Combating Corruption). Partially such situation is due to the fact that the protection of persons who reported corruption offenses is a complex issue. Despite the fact that the technical capabilities to report cases of corruption are available (functioning of internet receptions, hotlines, helplines, the relevant sections on the websites of the security services), their number is small. This indicates a low level of legal awareness of the population and the ineffectiveness of the ongoing educational and promotional activities. However, we cannot fully agree with this argument. Often, citizens, state and municipal servants, employees of federal funds, state-owned corporations and companies, other organizations are not interested in giving publicity to corrupt practices. There are practically no legal mechanisms to encourage such appeals. Exception is cases where these persons are themselves the party of corrupt relations (note to Art. 291 of the RF CC)2. 1

Federal Law dated March 8, 2006 No. 40-FZ On the Ratification of the United Nations Convention against Corruption // Official Gazette of the Russian Federation. 2006. No. 12. Art. 1231.

2

The person giving a bribe is released from criminal liability if such person actively assisted the disclosure and/or investigation of the crime or bribe extortion took place in regard of such person by the official, or after committing the crime, the person informed voluntarily the authority entitled to open a criminal case of the giving of the bribe.

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Another problem is ensuring compliance with the principles of reasonableness and good faith of reporting the fact of corruption. In the absence of real evidence of corruption offenses the person reporting the facts of corruption, may himself/herself become a subject of a criminal offense of, for example, libel. In this case, it should be noted that the person reporting certain facts, is not in all cases a specialist able to qualify an act as a corruption offense. At the same time such a person may be mistaken in good faith and believe that the information reported by him/her is true, but he/she himself/herself does not pursue personal gain, acting for the benefit of the society. The essential problem of the protection of those who report the facts of corruption is the fear of revenge (intimidation) by those being denounced. Usually the adverse consequences for the informer appear in the workplace, so first of all, it is necessary to protect his/her labor rights. Adverse effects may include imposition of disciplinary action, dismissal, demotion, transfer to another job, refusal of promotion, reduction of salary, bonuses, awards, incentive payments etc. Possibility of the fact of providing information about the manifestations of corruption of the damage exceeding the benefit from its disclosure to a specific body or a juridical person is also a serious problem in the arrangement of receipt of information on corruption. Due to this, any organization strives to be the first to obtain this information to assess the risks of its spread and to prevent «leakage» and its provision to the competent public authorities, etc. An important question is the specific attitude of others to persons who report the facts of corruption, who risk to become outcasts in the team and receive a label of informer, complainant, agiler, whistler, informer. The historical and cultural features should also be taken into account. Reports on suspicion of committing illegal actions are not peculiar to the Russian mentality, while in some other countries, for example in the United States, this practice is not an outstanding phenomenon and is used almost everywhere, being supported by social morality. At the same time, such reports are considered an expression of active citizenship. The study found that at least 60% of Americans consider themselves bound to complain when 249

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confronted with «disrespect to the state» or various deviations from the established norms1. As a rule, information on the following is welcomed: – any violations of the principles and internal control procedures (theft, damage to the property, abuse, violation of laws, etc...); – any violations in the field of accounting and finances that may affect the reliability of company accounts (the use of false invoices, falsification of records or accounts, fraud, etc...); – any violations of anti-corruption legislation (concealment of payments, etc.). While in some countries channels of information about corruption are made as open as possible (for example, the system of «red phone» in the USA), in others the information channels are more closed in order to ensure the protection of persons reporting relevant information. Anonymity is an essential aspect of corruption reporting procedures in the case where the legal framework is not strong enough and does not provide a complete guarantee against physical abuse and social censure. The culture of comprehension of the practice to report facts of corruption is not developed in our country. In this connection, when considering the protection of persons reporting facts of corruption, it makes sense to take into account foreign practices. In international practice, there are developed general principles of the protection of persons who report facts of corruption, including the validity and integrity of the report. The validity refers to the existence of evidence of the commission of wrongful acts of corruption. Integrity means that the informer believes that the information provided by him/her is true. At the same time, he/she does not seek personal gain, and acts for the benefit of the society. Moreover, the informer who has intentionally reported false information is denied the protection. In the USA, for example, the culture of whistleblowing, which (depending on the nature of information and its particular 1

See: Konovalova V. Organized whistleblowing: solution to problems or catastrophe waiting to happen? // Kadrovik. Human Resource Management. 2011. No. 11.

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destination) takes different forms, is highly developed1, and the term «whistleblower» used in the legislation literally means «a person who blows the whistle», i.e. red-flags a violation. In its meaning it’s close to the Russian «bring to light» and the words «informer», «informant», and does not have a negative connotation. In European countries, however, (especially in the former socialist countries and Soviet republics), the perception by the society of such persons generally is negative, that represents a significant obstacle to implement the legislation on protection and especially to encourage informers. Therefore, European legislators carefully avoid using the term, similar to the US one, and the rules for the protection of such persons are formulated in a streamlined form (for example, the term «worker who reports...» is used in labor law)2. Sometimes, admitting the possibility of the disclosure by the worker, the legislator still provides for certain exceptions for certain categories of public officials – military and intelligence personnel (UK). With regard to the content of information to be disclosed, it is usually permitted to disclose any information, including confidential, in the public interests3. As already mentioned, reports on violations must be in good faith, but because the concept of «good faith» in the legislation is not disclosed, the resolution of this issue is within the competence of courts or tribunals. At the same time, the burden of proof of good faith rests on the employer, and the statement about the absence of good faith must be proved by the employer. This guarantee is very important, because in practice, the employee, 1

For example, financial whistleblowing was legalized already in the nineteenth century. According to the 1986 False Claims Act individuals have the right to file a claim on behalf of the government concerning fraud with budgetary funds (falsification of claims for payment of work performed or services rendered). In case of a positive outcome, the defendant is obliged to compensate the state for the loss three-fold, and to pay a fine (5-11 thousand US dollars) for each violation of the law. The claimant is entitled to receive remuneration in the amount of 15% to 25% of the amount of the claim.

2

For example, the British Public Interest Disclosure Act 1998 speaks about the worker; the Irish Protected Disclosures Act 2014 - about the worker and the employee (when it comes to the police and civil service); 1977 Norwegian Law on Hours of Work and Employment - worker (arbeidstaker) / Lov om arbeidsmiljø, arbeidstid og stillingsvern mv. (Arbeidsmiljøloven) URL: https://lovdata.no/ dokument/NL/lov/2005-06-17-62/KAPITTEL_2#KAPITTEL _2

3

Thus, Irish Act 2014 permits to disclose information on illegal or other misuse of public funds or funds or other money intended for public purposes; on the actions or inaction of the state body, which leads to discrimination, gross negligence, etc.

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reporting the facts of corruption, finds it difficult to prove that the subsequent dismissal was the result of his/her reporting. One of the most important things to protect the informer is providing a legislative framework for the procedure of reporting. Typically, several stages of reporting an abuse are prescribed – reports are submitted to an internal division of the company, state or municipal body, such as Human Resources Department, to a special staff member of the Legal Department or to the Compliance Control Department. The laws of certain countries (UK, Ireland, Canada, South Africa) specifically state that the informer must first use «internal» means to report facts of corruption, before applying to an «external» body, the function of which may be performed by a special state body, regulator, union, law enforcement agency, independent anticorruption body, the commissioner or ombudsman1. In Romania, according to the Law on Protection of the Personnel of State Bodies and Institutions, as Well as Other Institutions Reporting Violations 2004, reporting can be arranged through internal channels or both the internal and external ones2. In addition, the informer has the right to report the facts of corruption in the media and human rights non-governmental organizations (South Africa, Serbia), but in some countries (e.g., the UK), it is recommended to use this method as a last resort. In a number of countries the legislator began using the payment of substantial compensations to the informers – from 10 to 30% of the imposed fine as a mechanism to stimulate reporting of corruption or fraud (US Dodd-Frank Act)3. Since the beginning of the program of 1

South Africa Protected Disclosure Act 2000 allows the possibility to provide information not only to a specific group of people, but also to the media representatives.

2

Superior officer of the offender; head of the state body, state or budgetary institution where the offender works or where there is an illegal practice, even if a particular offender can not be identified; disciplinary committee or other authority in the framework of the mentioned state bodies; judicial authorities (prosecutors, police); authorities responsible for the investigation of cases of conflict of interest (in Romania, such body is the National Integrity Agency); parliamentary committees; mass media; trade-union organizations, unions or employers’ organization or nongovernmental organizations.

3

In the first seven weeks after the introduction of new regulations, 334 complaints were filed (seven per day), in total 14,116 reports since August 2011 have been received from employees of the companies located not only in the USA, but also in other countries / SEC whistleblowing benefits foreigners too // URL: http://www.igloballaw.com/sec-whistleblowing-benefits-foreigners-too/

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work with informers the US Securities and Exchange Commission has received signals about violations from citizens of 95 countries, in 2015 – from citizens of 61 countries (the greatest number of appeals was received from the United Kingdom – 72, from Russia – 6)1. Large rewards (up to 2 million USA dollars) are provided for by the Law of the Republic of Korea on Protection of Whistleblowers in the Public Interest 20112, if informers reports that reveal acts of corruption, directly contributed to the restoration or increase of revenues or reduction of costs of state bodies. According to the Korean Commission for Combating Corruption and Civil Rights, for the last three years, 43.8 billion KRW have been returned to the state treasury, and 83 people received 2.9 billion Korean won as a reward for the reports. In particular, the largest amount paid since the publication of the Law was about 1.1 billion Korean won for the report on corruption committed during public procurement3. The procedure for protection and promotion of those who report facts of corruption was introduced in the Republic of Belarus by the Law dated July 15, 2015 On Combating Corruption (Art. 39 Guarantees to natural persons contributing to the identification of corruption), which states that a natural person who has reported the facts of the offense that creates conditions for corruption, the corruption offense or who otherwise assists in identifying corruption, is under state protection. At the same time the natural person, his/her spouse, close relatives or in-laws if there are sufficient data indicating that there is a real threat of murder, violence, destruction of or damage to the property, implementation of other illegal acts in relation to them, are guaranteed the application of security measures in accordance with the procedure established by legislative acts. In addition, in cases and the procedure determined by the Council of Ministers of the Republic 1

According to the report for 2015 submitted by the Securities and Exchange Commission to the US Congress, foreign informer, being neither a citizen nor a permanent resident of the USA, received for the report that resulted in the successful prosecution of the offender a reward of 30 million US dollars / 2015 Annual Report to Congress on the Dodd-Frank Whistleblower Program // URL: https://www.sec.gov/whistleblower/reportspubs/ annual-reports/owb-annual-report-2015.pdf

2

Act on the Protection of Public Interest Whistleblowers 2011 // URL: http://www.moleg.go.kr/ english/korLawEng;jsessionid=Ed6hYyM6JcTTf7g8GEspJUCIKuI0oIBgNZQNt5ZSFiahiaiR6ENrV50i5iaOiAWY.moleg_a1_servlet_engine2?pstSeq=58460&pageI ndex=2

3

Corruption reporters received KRW 2.9 billion for the past 3 years // URL: http://www.acrc. go.kr/eng/board.do?command=searchDetail&method=searchDetailViewInc&menuId=020501& confId=62&conConfId=62&conTabId=0&currPageNo=1&boardN um=52140

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of Belarus, the informer is paid remuneration that is not indicated in the declaration of income and property. In accordance with decision of the Council of Ministers dated February 5, 2016 No. 101 On the Remuneration and Other Benefits to a Natural Person Contributing to the Identification of Corruption,1 such payments are made in the following cases: – provision of information, objects and documents that contributed to the identification of a corruption offense; – provision of information on the whereabouts of the wanted person who has committed a corruption offense; – provision of information on the whereabouts of funds and other property obtained from the commission of a corruption offense; – contributing to the prevention or compensation for harm caused by a corruption crime; providing other assistance to the prosecution authorities, which had significance for countering corruption crimes. The size of the payment depends on the severity of the corruption crime and amounts up to 50 base values for an offense relating to the categories of grave or especially grave crimes, and up to 30 base values – to the category of misdemeanors. Additionally, there are payments of compensating character of up to 10 base units on the basis of the documents confirming costs incurred by a natural person. From January 1, 2016 the basic value size amounts to 210 thousand rubles2. Thus, overseas protection of persons, including public servants who report cases of corruption is ensured by a complex of legislative measures providing not only for their protection, but also encouraging. Specific protection measures of the informers of corruption are laid down in Decree of the Russian President dated April 2, 2013 No. 309 On Measures to Implement Certain Provisions of the Federal Law On Combating Corruption3. These include, first, the special procedure for the application of disciplinary measures to civil servants or employees of state corporations that reported cases of corruption. In accordance with them a disciplinary offense 1

Legislation of the CIS countries. URL: http://base.spinform.ru/show_doc.fwx?rgn=83083

2

See: Resolution of the Council of Ministers of the Republic of Belarus dated December 18, 2015 No. 1059 On Establishing the Base Value Size // National Internet portal of the Republic of Belarus. URL: http://www.pravo.by/main.aspx?guid=12551&p0=C21501059&p1=1

3

Official Gazette of the Russian Federation. 2013. No. 14. Art. 1670.

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is considered at a meeting of the commission on compliance with the requirements to official conduct and settlement of a conflict of interest, which can engage the public prosecutor supervising the observance of legislation on civil service or labor legislation. Secondly, for the citizens who are not in the public service, preparing to report the facts of corruption, in case of violation of their legitimate rights and interests in connection with such reports the opportunity to receive free legal aid is provided. Given the lack of legal regulation for the protection of the informers of corruption, we consider it necessary first of all to analyze the legislation on the state protection of the persons promoting criminal justice. Currently, the institute of state protection of victims, witnesses and other participants in criminal proceedings has in fact been formed and is acting, which takes into account international norms and legal experience of foreign countries. However, its ability to protect the informers of corruption are not used fully. The labor legislation poorly protects an employee who may report such facts. The Labor Code of the Russian Federation contains a closed list of grounds for dismissal (Art. 77, 81). Herewith, the general procedure for protection of rights does not take into account the specifics of protecting the rights of the informer of corruption. FR CAO also establishes penalties for the organization in connection with the use of negative measures against an employee who has reported the fact of corruption, while the foreign legislation of some countries (Canada and the USA1) provides for criminal liability for those who violate the rights of the informer. Measure to protect victims, witnesses, reporters of crimes provided for by Federal Law dated August 20, 2004 No. 119-FZ On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings2 also appear insufficient (cover only participants in criminal proceedings and only upon a decision of the court, agency of inquiry, investigative body). Thus, there is an urgent need to regulate the legal and organizational basis for the protection of persons reporting in the 1

In the USA, for example, at the federal level, there is Law on Strengthening the Protection of Persons Who Report Various Offenses, Including Corruption Ones (Public Law 112-199).

2

Official Gazette of the Russian Federation. 2004. No. 34. Art. 3534.

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public interest and the state of corruption offenses in the following areas: – identifying ways of informing on corruption (internal, external, anonymous1, etc.); – creation of guarantee protection mechanisms to ensure the safety of persons who report facts of corruption and corruption offenses; – introduction of mechanisms for the promotion of persons reporting cases of corruption, as well as compensation to such persons for the material damage caused as a result of such reporting. Paragraph «p», para. 2 of the National Anti-Corruption Plan for 2014–2015 provided for the preparation of a draft regulatory legal act on the improvement of the legal and organizational support of the protection of whistleblowers. At the same time it is determined that such protection is provided from the prosecution and infringement of their rights and legitimate interests on the part of officials whose actions are appealed. The option, involving the preparation of a special federal law On the Protection of Persons Reporting Corruption Offenses from Persecution and Violation of Their Rights and Legitimate Interests on the Part of Officials Whose Actions are appealed, seems most reasonable.2

1

We believe that anonymous promotion by citizens in the prevention and disclosure of acts of corruption is justified by the interests of the state and society. In fact, without anonymous statements many corruption offenses remain latent, and those guilty - unpunished, so it seems urgent and necessary to use anonymous aid of citizens in combating corruption crimes.

2

The Ministry of Labor of Russia has already prepared a draft federal law On the Protection of Persons Reporting Corruption Offenses and Other Violations of the Russian Legislation, and Amendments to Some Legislative Acts of the Russian Federation, in respect of which the Institute of Legislation and Comparative Law under the Government of the Russian Federation has made conceptual remarks.

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Development of property relations in Russia, the increasing complexity of their legal regulation in the conditions of legal integration involves an objective necessity to resolve complex problems on balanced development of the entire system of national legislation taking into account existing and proven international and foreign experience of legal regulation. Modern challenges require the improvement of remedies for violated rights and at the same time development of effective and adequate legal actions against offenders with a view to preventing unlawful conduct, enhancing the principles of the rule of law in legal and social state. Under modern conditions of public-political and socio-cultural development of the country a study of civil penalties for corruption offenses both from the standpoint of current civil legislation and in terms of possible areas of its future development is undoubtedly relevant, which is reflected in the corresponding publications1. In accordance with Art. 1 of the Civil Code of the Russian Federation the civil law is based on the recognition of equality of participants in relationships regulated by it, the inviolability of property, the freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for unhampered exercise of civil rights, the provision of redress of infringed rights and their judicial protection. Citizens (natural persons) and juridical persons acquire and exercise civil rights by their own free will and in their own interest. Civil rights may be restricted by federal law and only to the extent required to protect foundations of the constitutional system, 1

E.g., see: Kabanova I.E. Civil law consequences of corrupt conduct // Lawyer. 2014. No. 6. P. 25– 31; Koryakin V.M., Voropaev D.A. Issues of invalidity of civil transactions concluded with signs of corruption // Russian justice. 2014. No. 6. P. 6–10; Sinitsyn S.A., Pozdnysheva E.V. Civil penalties for corruption offenses // Legislation and economy. 2015. No. 5. P. 7–10.

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morality, health, rights and legitimate interests of others, and to ensure national defense and state security. Thus, the objectives of civil regulation, functions and principles of civil law originally are not intended to have a repressive effect on the offender, and therefore civil penalties are aimed mainly at restoration of situation preceding the offense, have a pronounced compensatory and recovery rather than penitentiary and punitive nature and are focused on full compensation for the damage caused. Civil law and civil methods of protection do not regulate alone and do not resolve issues related to the detection and suppression of corruption offenses, but only play a supporting role in the restoration of the legal condition preceding their occurrence (restitutio in integrum). The objectives and functions of civil law regarding the prevention and suppression of corruption offenses are studied inadequately, legal literature only indicates the presence of «business corruption», analyzes its causes, dangers, manifestations, including the types of «corrupt practices» and «conflicts of interest». Nevertheless, the main issue is still to be resolved – an efficient and effective civil remedies for counteracting and preventing corruption which must be clearly stated not only de lege lata, but also de lege ferende. In addition, the civil anti-corruption mechanism should include comprehensive legal response measures consistent with the objectives, principles and functions of civil regulation, and at the same time establish special measures to combat corruption offenses in private and public spheres. Regime of strict observance of the rights and freedoms of man and citizen, the rule of law, the constitutional principles of inviolability of property assumes that civil penalties for corruption offenses can only be applied in the case where in accordance with the law the offender has been identified and his guilt was proved by enforceable court ruling. Historically, legal counteraction to bribery appeared to belong to criminal law. Currently, the system of Russian civil legislation does not establish adequate and effective mechanisms to counter corruption offenses. Both difficulties and gaps in the perception of international regulation and more specific national features of the Russian legislation stand out particularly. Identification and scientific and practical substantiation of importance of civil regulation in combating and prevention of corruption offenses is motivated by the challenges of 258

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time, creating urgent and virtually unexplored problem for modern science and practice of civil law that are developed in harmonious interaction with legal sciences of other sectors, which is intended to facilitate timely and integrated achievement of state’s objectives in the regulation of developing social relations. The Russian Federation implemented the provisions of Article 20 of the UN Convention against Corruption which states that each State Party shall consider adopting legislative measures which may be required to recognize illicit enrichment, i.e. a significant increase in the assets of a public official exceeding his/her legal income which he/ she cannot reasonably explain, as a criminal offense, when committed intentionally. Certainly, this provision cannot but cause issues, as in this case it proposes a mechanism of objective imputation in criminal proceedings through the civil, property status of public servant or his/her close relatives. It turns out that owned property itself is sufficient proof of guilt in a criminal trial. Thereby the fundamental importance of the presumption of innocence is ignored and the civil law becomes a support in meeting the objectives of criminal and criminal procedural law. Hardly is it possible to agree with such an approach only on the grounds that public danger of corruption offenses is increasing and spreads in different manifestations like an epidemic. The Russian legislator took a different way by determining a preferred approach in the national civil law. Rules of the Civil Code of the Russian Federation on termination of ownership right have been supplemented by new ground: subpara. 8 para. 2 Art. 235 establishes the right to forfeiture to the state of assets in respect of which no proof of purchase by legitimate income under the laws on combating corruption has been submitted. Lack of a coherent mechanism of civil measures to counter corruption offenses is a significant gap in the Russian legislation. In particular, the following needs to be developed: special rules on the invalidity of corrupt transactions (content and consequences), rules for determining the injured or aggrieved person in corruption offenses. The literature also has virtually no studies that define the concept of corrupt transaction and its consequences. Currently, the concept of corrupt transaction is defined neither by civil law, nor by legal science. 259

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Theoretical developments encouraging judicial practice to qualify corrupt transactions under Art. 169 of the Civil Code of the Russian Federation do not achieve their goal, since, as a result of humanization of civil law, the rules in this article provide for mutual restitution as a general legal consequence for the transaction. Article 169 of the Civil Code of the Russian Federation is a general, «elastic» rule the effect of which cannot ensure restoration of balance of rights and legitimate interests that existed before the conclusion and execution of corrupt transaction: in the doctrine the invalidity of transactions made for illegal purposes has traditionally been associated with the action of general rules the scope of which is difficult to estimate in advance. Challenges require the inclusion of special elements and rules on the invalidity of corrupt transactions in the text of the Civil Code of the Russian Federation. Apparently, subpara. 8 para. 2 Art. 235 of the Civil Code of the Russian Federation requires elaboration, as practical application of this rule is complicated by the uncertainty of the range of persons whose property may be forfeited to the Russian Federation. In this case, it refers to the uncertainty of procedural form and type of legal proceedings in which such property may be forfeited to the state. This rule has a pronounced specificity. It differs from confiscation with the fact that the absence of proof of property acquisition by legitimate income in itself does not constitute an offense or a crime and can only give rise to some speculation. In this regard, the Russian civil legislation requires improvement regarding the establishment of corpus delicti for the invalidity of corrupt transactions, the establishment of special legal consequences of its invalidity in the form of unilateral restitution and compensation which shall be determined in the amount of not less than 25% of the price of such transaction. Determining a common approach to corrupt transactions and their specific types is an urgent issue of the doctrine and legislation. Supplementing the list of grounds for termination of ownership right to property in respect of which, in accordance with the law on combating corruption, no proof of purchase by legitimate income has been submitted (subpara. 8 para. 2 Art. 235 of RF CivC) seems to be not just unelaborate in regulatory terms, but excessive, since in case of availability of such supplements to the Civil Code of the Russian 260

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Federation the task of forfeiture of property acquired by illegal income could be resolved using the concept of unjust enrichment (chapter 60 of RF CivC), which will be discussed below. Civil mechanism to counter corruption offenses cannot be limited to corpus delicti for invalidity of corrupt transactions provided by the laws. It is also advisable to use wide potential of civil law in terms of repudiation of contract (Art. 450.1 of RF CivC) the economic inexpedience of which for public entity will be determined in the course of control and audit measures in respect of activities of the authority or public official. Repudiation of the contract shall not be substantiated by enforceable court ruling on the case of corruption offense. Fictitious and «kickback» contracts made in some cases for the sole purpose of money legalization or knowingly overpriced or underpriced are common in public procurement and orders. The right to repudiation of the contract provided by law coupled with a demand for compensation for assets unjustifiably obtained from the budget of appropriate level, in many respects is able to guarantee the interests of public authorities and ensure target spending of budget funds, «to patch up holes» in the budget. The establishment of rules on compensation for reputational harm to public-law entity caused by the commission of corruption offense by an official of this entity may be a promising area for improvement of civil legislation on civil liability for corruption. In accordance with Art. 124 of the RF CivC, the Russian Federation, constituent entities of the Russian Federation and municipalities act in relationships governed by civil law on an equal basis with other participants of these relations – natural and juridical persons. In doing so, the specified subjects of civil law shall be governed by the rules regarding participation of juridical persons in relations regulated by civil legislation, unless otherwise provided by law or specificity of these subjects. Public authorities act on behalf of the Russian Federation and constituent entities of the Russian Federation in civil transactions within their competence established by the acts determining the status of these authorities. In the cases and in the manner prescribed by federal laws, decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation and legal acts of the Russian Federation and municipalities, state agencies, local authorities, as well as juridical 261

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and natural persons may act on their behalf according to their special instructions. According to para. 2 Art. 2 of RF CivC, intangible benefits shall be protected by civil law, unless otherwise follows from the nature of these intangible benefits, with intangible benefits to include, inter alia, repute, business reputation, good standing and goodwill (Art. 150 of RF CivC). Article 152 of the Civil Code of the Russian Federation established that the rules of the above article on the protection of business reputation of a natural person shall be applied respectively to the protection of business reputation of a juridical person, except for the provisions on the compensation for moral damages. However, the Constitutional Court of the Russian Federation in its ruling dated December 4, 2003 No. 508-O pointed out that the applicability of a particular remedy for violated civil rights to the protection of business reputation of juridical persons should be determined based on the nature of juridical person. The lack of direct reference in the law to the method of protecting business reputation of juridical persons does not deprive them of their right to bring claims for damages, including those caused by depreciation of goodwill or non-pecuniary damages having their own content (other than content of moral damages caused to natural person) which arises from the essence of violated incorporeal right and the nature of consequences of this violation (para. 2 Art. 150 of RF CivC). This conclusion is based on the provisions of Art. 45 (p. 2) of the Russian Constitution under which everyone has the right to protect his/her rights and freedoms by all means not prohibited by law. At present, the judicial practice has an established approach under which non-pecuniary (reputation) damages caused by actions (inactions) violating non-property right of juridical person shall be eligible for compensation (Regulation of FAS for Moscow District dated March 30, 2005 No. KG-A40/1052-05, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 17528/11). In this case damage is caused by the formation of negative public opinion about the corresponding subject in the area of its operations. Non-pecuniary (reputation) damage shall be compensated according to the rules of Chapter 59 of the Civil Code of the Russian 262

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Federation («Tort Liability») subject to proof of general conditions of tort liability (existence of a wrongful act on the part of the defendant, the adverse effects of these actions for the plaintiff, the causal link between the defendant’s actions and the occurrence of adverse effects for the plaintiff, guilt of the tortfeasor). To confirm the occurrence of adverse effects in the form of non-pecuniary (reputation) damage it is necessary to establish the existence of plaintiff’s good reputation, as well as the fact of loss of trust to its reputation. In identifying the causal link between the defendant’s actions and the occurrence of adverse effects for the plaintiff the courts should take into account the existence of actual possibility for the defendant’s actions to influence the formation of an opinion about the claimant by third parties (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 17528/11). Thus, as the subjects of civil law referred to in Art. 124 of the Civil Code of the Russian Federation are governed by the rules that determine participation of juridical persons in relations regulated by civil law, and public authorities, local authorities, as well as juridical and natural persons act on behalf of the above subjects in civil transactions, in the case the appropriate public official commits wrongful corrupt acts confirmed by enforceable court ruling, the public employing the said public official shall acquire the right to compensation by the latter for reputational damage which took the form of, inter alia, the establishment of a negative public opinion about the public entity and its activities, the formation of a negative attitude to it, the potential decrease in trust, since there is no doubt that a positive assessment of the subject depends not only on administration of such subject, but also on the behavior of each its employee. Establishing ethical norms and rules of official conduct for officers and employees to achieve due diligence of their professional activities, to strengthen the credibility of both the employees and agencies and organizations which employ them, to increase trust in them, as well as to prevent corruption in these agencies and organizations, is also useful and necessary for employees of juridical persons involved in civil transactions. The document containing such regulations for these persons may be, for example, the internal regulations of juridical person that determine the standards and 263

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rules for interaction with both juridical person’s counterparties, including in order to comply with principle of free competition, and with representatives of public authorities and administration, primarily in order to prevent corrupt practices. According to para. 5 Art. 52 of RF CivC, founders (participants) of juridical person shall be entitled to approve internal regulations and other internal documents of juridical person regulating corporate relations and not being constituent documents (para. 1 Art. 2). The internal regulations and other internal documents of juridical person may contain provisions which do not contradict the constituent instrument of juridical person. Chapter 30 of the Criminal Code of the Russian Federation provides for criminal liability for crimes against the public order, interests of public service and service in local authorities. Such crimes include, inter alia, the use by public official of his/her powers contrary to the interests of service, if the act is committed out of mercenary or other personal interest and led to substantial violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state (Art. 285 Abuse of Office); committing by public official of actions clearly exceeding his/her authority and involving substantial violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state (Art. 286 Exceeding Official Authority). Commission by public officials of the above crimes may be a consequence of bribery by business entities in order to obtain benefits causing or capable of causing losses to other economic entities – competitors, or causing or capable of causing harm to their business reputation (according to Art. 4 of Federal Law dated July 26, 2006 No. 135-FZ On Protection of Competition1 such actions constitute the concept of «unfair competition»). It should be noted that Art. 53 of the Constitution of the Russian Federation guarantees everyone the right to compensation by the state for damages caused by unlawful actions (inaction) of public authorities or their officials. There is no doubt that in the commission by public authorities and their officials of illegal actions a business entity in respect of which 1

Official Gazette of the Russian Federation. 2006. No. 31 (p. I). Art. 3434.

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these acts are committed incurs losses, which may be expressed in additional costs, loss of profit, reputation damage and so forth. According to Art. 16 of the Civil Code of the Russian Federation, damages caused to a natural or juridical person as a result of illegal actions (inaction) of public authorities, local authorities or their officials, including adoption of any act by public authority or local authority not in compliance with the law or other legal act, shall be reimbursed by the Russian Federation, the relevant constituent entity of the Russian Federation or a municipality. Paragraph 1 Art. 1069 of the Civil Code of the Russian Federation also provides that the damage caused to a natural or juridical person as a result of illegal actions (inaction) of public authorities, local authorities or their officials, including adoption of any act by public authority or local authority not in compliance with the law or other legal act, shall be reimbursed. Damage shall be compensated at the expense of treasury of the Russian Federation, treasury of constituent entity of the Russian Federation or treasury of municipality, where filing a claim by a natural or juridical person directly to the public authority or local authority in breach, or only to the financial body shall not constitute grounds for refusal to satisfy this claim. In this case, the court shall bring the appropriate public-law entity as a defendant in the case and at the same time determine which bodies will represent its interests in the proceeding (para. 15 of Resolution of the Plenum of the Russian Supreme Court dated June 23, 2015 No. 25 On Application by the Courts of Some Provisions of Section I of the First Part of the Civil Code of the Russian Federation). It should be noted that failure to recognize non-regulatory legal act by the courts as invalid, and the decisions or actions (inaction) of public authority as illegal shall not in itself constitute grounds for rejection of the claim for damages caused by such an act, decision or action (or inaction). In the above case, the court shall assess the legitimacy of the non-regulatory act, decision or action (inaction) of public or municipal body (official) when considering the claim for damages (para. 4 of Information Letter of the Presidium of the Supreme Arbitration Court dated May 31, 2011 No. 145 Review of Practice of Consideration by Arbitration Courts of Cases Involving Compensation for Damage Caused by Public Authorities, Local Authorities and Their Officials). Moreover, the arguments about 265

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the lack of budget funds for compensation for damage caused by unlawful actions (inaction) of local authorities or officials shall be recognized meritless by the court, since in accordance with para. 2 of Resolution of the Plenum of the Supreme Arbitration Court dated June 22, 2006 No. 23 On Some Issues of Application of the Rules of the Budget Code of the Russian Federation by Arbitration Courts, in satisfaction of claims made in accordance with Art. 16, 1069 of the Civil Code of the Russian Federation, limitation of recovery sources by reference to the recovery only from the budget is unacceptable, since such a restriction is contrary to Art. 126, 214, 215 of the Civil Code of the Russian Federation. In this case, the general rule on liability of public entity with all assets owned by it and constituting treasury shall be applied (Decision of the Tenth Arbitration Court of Appeal dated February 10, 2015 in case No. A41-45610/14). The foregoing leads to the following conclusion: if a public official commits wrongful corrupt acts confirmed by enforceable court ruling (abuse of power, exceeding official authority, bribery, etc.) which resulted in actions or inaction of the authorized authorities or officials of such authorities, including the decisions that violated the rights and legitimate interests of the subject of civil transactions in the sphere of entrepreneurial and other economic activities and led to the reimbursement for damages incurred by such subject from public entity which employs the said public official, consideration should be given to the question whether this public entity acquires the right to recover the amounts of paid damages from guilty public official – an employee of such entity by way of recourse. Such a measure due to its potentially severe property encumbrance of guilty public official will serve both as a preventive measure and liability for corrupt conduct ensuring restoration of violated civil rights of participants in civil transactions. In order to avoid interpretation inconsistent with the purposes of legal regulation, it appears the issue shall be discussed on amending Art. 575 of the Civil Code of the Russian Federation regarding expansion of the prohibition of gift giving (regardless of the value) to persons holding public offices in the Russian Federation, public offices in constituent entities of the Russian Federation and municipal offices, civil servants, municipal servants, employees of the Bank of 266

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Russia in connection with their official position or performance of official duties. Para. 1 Art. 575 of the Civil Code of the Russian Federation prohibits gift giving (except for ordinary gifts with the value not exceeding 3 thousand rubles) to employees of educational institutions, healthcare organizations, organizations providing social services, and similar organizations, including organizations for orphans and children deprived of parental care, by citizens who are in their care, maintenance or upbringing, spouses and relatives of these citizens; to persons holding public offices in the Russian Federation, public offices in constituent entities of the Russian Federation and municipal offices, civil servants, municipal servants, employees of the Bank of Russia in connection with their official position or performance of their official duties. Meanwhile, the acceptance of any gifts or services in relation to the activities of public authorities and administration belongs to the sphere where a conflict of interest is most likely. In support of the above proposal it is worth noting the Handbooks on possible cases of conflict of interest in public service and the procedure for their settlement approved by the relevant authorities, according to which in order to avoid a conflict of interest, the civil servants, their relatives and other persons associated with the personal interest of civil servants are recommended not to accept gifts from organizations in respect of which a civil servant carries out or was carrying out certain functions of public administration, regardless of the value of these gifts and reasons for gift giving (see, for example, Handbook of typical situations of conflict of interest in public service of the Russian Federation and the procedure for their settlement approved by the Ministry of Sports of Russia; Handbook of possible cases of conflict of interest in public service in the National Courier Service and procedure for their settlement approved by the National Courier Service of Russia). Development of civil transactions demands from civil law to use all possible measures and means to ensure diligent and proper exercise of civil rights and civil duties. The Civil Code of the Russian Federation acquired mechanisms that could provide additional civil measures for the prevention of corruption offenses and subsequent bringing to civil liability of persons who have committed them. In particular, 267

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the measure to prevent misconduct at the stage of negotiation of the contract is the concept of pre-contractual liability on the basis of culpa in contrahendo principle. Thus, in accordance with Art. 434.1 of the Civil Code of the Russian Federation when joining negotiations for the conclusion of the contract, in the course of their implementation and upon completion the parties shall act in good faith, in particular to prevent entry into negotiations on the conclusion of the contract or their continuation with notorious absence of intention to reach an agreement with the other party. Misconduct in negotiations include: 1) provision to other party of incomplete or inaccurate information, including omission of circumstances that due to the nature of the contract shall be communicated to the other party; 2) sudden and unreasonable termination of negotiations on the contract conclusion under such circumstances which the other negotiating party could not reasonably have expected. In this case the party which negotiates or breaks off negotiations on the conclusion of the contract in bad faith is obliged to compensate the other party for losses caused by this, i.e. the costs incurred by the other party in connection with negotiations on the conclusion of the contract, as well as for the loss of contract with a third party. The rules of this Article shall apply regardless of whether a contract was signed by the parties based on the results of negotiations, and they shall not prevent application of rules set out in Art. 59 of the Civil Code of the Russian Federation governing tort liability to relations arising after establishment of contractual obligations. In accordance with Art. 24 of Federal Law dated April 5, 2013 No. 44-FZ On the Contract System of the Federal and Municipal Procurement of Goods, Works and Services (hereinafter – Federal Law No. 44-FZ), in the course of procurement the customers shall apply competitive methods for determining the suppliers (contractors, performers) or carry out procurement with a single supplier (contractor, performer). The contract system in the field of procurements is based, inter alia, on the principles of openness, transparency of information, ensuring competition, customers’ professionalism, responsibility for productivity of ensuring state and municipal needs, efficiency of implementation of procurements (Art. 6). 268

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In accordance with Art. 8 of Federal Law No. 44-FZ, the contract system in the field of procurement is aimed at creating equal conditions for competition between the procurement participants. Any interested person has opportunity in accordance with the laws of the Russian Federation and other legal acts on the contract system in the field of procurement to become a supplier (contractor, performer). Competition in implementing procurements has to be based on observance of the principle of fair price and non-price competition between procurement participants for identification of the best conditions of goods deliveries, works performance, rendering services. Customers, specialized organizations, their officials, procurement commissions, members of such commissions, procurement participants are not allowed to take any actions which contradict the requirements of the said Federal Law, as well as lead to competition restriction, in particular to unreasonable restriction of number of procurement participants. At the same time, public officials of the customers are charged with personal liability for compliance with the requirements established by the laws of the Russian Federation on contract system in the field of procurement and regulatory legal acts listed in p. 2 and 3 Art. 2 of the Law. There is no doubt that the officials of the customers in committing corruption offenses at determining the suppliers (contractors, performers) within the tender usually enter into negotiations to conclude a contract with other persons, other than the winning bidders which have become such as a result of incitement of personal interest of these officials (including through bribery) by potential suppliers (contractors, performers) with the notorious absence of intention to reach an agreement with these bidders. Thus, upon the availability of appropriate and sufficient evidence of personal interest of the customer’s official acting on behalf of the Russian Federation, the constituent entity of the Russian Federation or the municipality in determining a particular supplier (contractor, performer) which provided incentives for this interest, it is possible to hold the above official liable in the form of reimbursement to other bidders of costs incurred by them in connection with negotiation on the contract (bidding) and damages for the loss of contract with a third party, all caused by bad faith negotiating (expressed in this 269

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case in unfair determination of the supplier (contractor, performer) based on the results of tender). Such a measure due to its potentially severe property encumbrance of guilty public official may serve both as a preventive measure which excludes corrupt conduct of the latter in the procurement of goods, works and services for state and municipal needs, and liability for corrupt conduct ensuring restoration of violated civil rights of participants in civil transactions. Thus, the tender held in violation of the rules established by the law may be recognized null and void by a court at the suit of the person concerned within one year from the date of tendering. Invalidation of tender shall entail the invalidity of the contract concluded with the winning bidder and application of consequences under Art. 167 of the Civil Code of the Russian Federation. However, these consequences do not resolve the problem of compensation, restoration and protection of violated civil rights of the potential suppliers (contractors, performers) participating in the tender. However, Art. 59 of the Civil Code of the Russian Federation governing tort liability provides for a universal method of protection of civil rights, which can be applied in this situation. Thus, according to Art. 1064 of the Civil Code of the Russian Federation, damage caused to the personality or property of a natural person, as well as damage caused to the property of a juridical person shall be reimbursed in full by the tortfeasor. When satisfying the claim for damages, the court in accordance with the facts of the case obliges the person responsible for causing damage to compensate for the damage in kind or for losses caused (para. 2 Art. 15 of RF CivC). According to Art. 15 of RF CivC damages include both actual damage and lost profits of the injured party. Moreover, if the violating person received income as a result of this violation, the person whose rights were violated shall be entitled to claim compensation for lost profit in the amount of not less than such income, along with other losses. Thus, consideration should be given to the possibility of bringing claims for damages by suppliers (contractors, performers) – participants of tender which subsequently was declared invalid due to the corruption offenses of customer’s officials, against these officials, including compensation in the amount of not less than the income of officials obtained as a result of such breach. 270

§ 1. Civil liability for corruption-related offenses

As noted earlier, the Civil Code of the Russian Federation provides for a number of civil means that under certain conditions can potentially be used to counter corrupt conduct. Thus, according to Art. 1102 of the Civil Code of the Russian Federation a person which without the grounds prescribed by law, other legal acts or the transaction acquired or saved property (purchaser) at the expense of another person (victim) is obliged to return to the latter all unjustifiably acquired or saved property (unjust enrichment), except as provided for by Art, 1109 of the Civil Code of the Russian Federation. The rules provided by Chapter 59 of the Civil Code of the Russian Federation shall apply regardless of whether the unjust enrichment was the result of conduct of the purchaser of property, the victim and third parties or occurred against their will. In this case, unless otherwise established by the Civil Code of the Russian Federation, other laws or other legal acts or arise from the essence of the respective relations, the rules provided for by this chapter shall apply also to claims for damages, including damages caused by misconduct of the enriched person. It appears that upon receipt of money or other property by public official as a result of corruption offense such property falls under the concept of «unjust enrichment» under Art. 1102 of the Civil Code of the Russian Federation, subject to the following conditions: inability to confirm the legality of ownership rights of the official of public or local authority to the said property (including by information about the official income, acquisition of property by inheritance) and the apparent mismatch of the said property cost and the level of income specified by such officials in official documents (according to Art. 3 of the Federal Law On Monitoring Expenses Against Revenues of Persons Holding Public Office and Other Persons, a person holding one of the offices referred to in para. 1 p. 1 Art. 2 of this Federal Law shall annually within the period established for the submission of information on income, property and property-related obligations provide information about his/her expenses, as well as about expenses of his/her spouse and minor children for each transaction on the acquisition of land, other real estate, transport vehicle, securities, shares (interests, shares in the authorized (share) capitals of organizations) made by him/her, his/her spouse and (or) minor children during the 271

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calendar year preceding the year of submission of information, if the total amount of such transactions exceeds the total income of the person and his/her spouse for the last three years preceding the reporting period, as well as information about the sources of obtaining funds for these transactions). Thus, consideration should be given to the possibility of return to the Russian Federation, the constituent entity of the Russian Federation or the municipality by public officials of public authorities and local authorities of property which the said persons acquired through the commission of corruption offense as unjust enrichment without any grounds provided for by the law, other legal acts or the transaction. Some cases of acquisition of property by corrupt official using straw parties (nominees) including their relatives and agents, as well as acquisition of common ownership property (especially joint ownership property) by criminally acquired funds from corruption offenses, put before the legislator the task of combating such illegal actions. In this connection, it seems appropriate to complement the Civil Code of the Russian Federation with the rules stating that the property in shared or joint ownership may be divided between the co-owners not only by agreement of the co-owners, but also by virtue of legal provisions. In this case, apportionment or payment of compensation against termination of the right of one of the coowners to common property should be controlled and initiated by the prosecutor’s office, and legally effective court decision in a criminal case should be a prerequisite for the termination of common ownership rights by virtue of law and the definition of a particular size of damage caused by corruption offense. A widespread practice of registration of property (mainly business assets and other liquid assets) in the name of third parties – nominees and fiduciary owners in circumstances where it was acquired by civil servants as a result of corruption offenses actualizes the question of inclusion in the legislation of the group of rules the application of which would make it possible to pierce the corporate veil and (or) use the property formally registered in the name of fiduciary owner to compensate for property damage caused by the corruption offenses. This requires detailed elaboration of legislative provisions on the scope, means and legal consequences of proving ownership right of 272

§ 2. Administrative liability for corruption-related offenses

another person which actually bears the burden of maintenance and defines acceptable options for the use of property. In conclusion, it should be noted that according to Art. 11 of the Civil Code of the Russian Federation, the protection of violated or disputed civil rights shall be carried out by the court, arbitration court or arbitration tribunal in accordance with jurisdiction over cases established by the procedural law, with judicial protection acting as a universal method of protection of the right (Decision of the Constitutional Court of the Russian Federation dated July 20, 2011 No. P-20). In accordance with Art. 7 of the Civil Law Convention on Corruption, each party shall provide in its internal law that the proceedings on damages shall be governed by limitation period of at least three years from the date when the person who has incurred damage becomes aware or should have reasonably become aware of the occurrence of damage or about the act of corruption and the person liable for it. However, such a claim may not be brought after the expiration of not less than ten years from the date of the act of corruption. We believe that due to serious negative consequences of corruption offenses consideration should be given to introduction of longer limitation periods, as compared with the general one, for the protection of civil rights violated as a result of such offenses. § 2. ADMINISTRATIVE LIABILITY FOR CORRUPTION-RELATED OFFENSES

The main provisions of the laws on combating corruption are meant for civil servants and other officials implementing the administrative authority given to them by law that determines the relevant legal nature of the norms of the combating corruption concept in general. However, strict compliance with the prohibitions and restrictions, performance of duties aimed at combating corruption, is provided mainly by criminal and disciplinary measures of coercion, providing a strictly individual, personalized impact on the addressees of legal norms. Unlike criminal law and criminology, the administrative law does not distinguish the offenses of corruption. The Code of Administrative 273

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Offenses of the Russian Federation establishes administrative liability for the commission of only two types of misdemeanors related to corrupt behavior1, despite the fact that a number of offenses provided for by the RF CAO can have a corrupt nature2. It is worth recalling that criminal acts are classified as crimes of corruption without any conditions, crimes that should be attributed to corruption ones under certain conditions, and crimes contributing to the commission of corruption crimes3. Such a classification in respect of administrative offenses does not exist, in fact, the country still has no unified accounting system of administrative offenses, which would make it possible to analyze the administrative tort, identify the causes and conditions conducive to the commission of administrative offenses, to develop science-based measures against administrative violations, including measures to prevent the commission of wrongful acts of corruption4. At the same time, administrative liability as an independent public-law legal liability has a significant and still far from fully implemented potential5. It stands to reason that suggestions are made in the literature to establish administrative liability of public officials 1

Article 19.28 of the RF CAO provides for administrative liability for the unlawful reward on behalf of or for the benefit of a juridical person, Art. 19.29 of the RF CAO - for illegal employment or involvement in work performance or services provision of the former state or municipal servant.

2

For example, the unlawful refusal to provide a citizen and (or) a company with information, provision of which is stipulated by federal laws, its untimely provision or provision of knowingly false information; violation of the procedure for consideration of citizens appeals; violation of the law on the arrangement of public and municipal services provision; violation of the legal requirements to placing orders for goods supply, works performance and services provision for the needs of customers; illegal restriction of rights to drive the vehicle and its operation; hindering the spread of mass media products; violation of the procedure for the provision of information on the activities of state bodies; restriction of competition.

3

Direction of the General Prosecutor’s Office of the Russian Federation No. 65/11, Ministry of Internal Affairs of the Russian Federation No. 1 dated February 1, 2016 On Bringing into Force the List of Articles of the Criminal Code of the Russian Federation Which Are Used for Statistical Report Preparation.

4

The need to introduce a unified system of statistical records of administrative offenses has been mentioned repeatedly. E.g., see: Konstantinov P.Yu., Solovyova A.K., Stukanov A.P. Administrativedelictual policy as one of the directions of the administrative reform in the Russian Federation // Jurisprudence. 2007. No. 1; Shergin A.P. Administrative Jurisdiction. M., 1979. P. 79 and the following

5

See: Galagan I.A. Administrative liability in the Soviet Union (state and substantive research). Voronezh, 1970; Shergin A.P. Op. cit.; Kirin A.V. Administrative-delictual law (theory and legislative framework). M., 2012; Zyryanov S.M. Administrative liability in the system of public-law liability // Journal of Russian Law. 2014. No. 1. P. 15-22 and the following

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for violation of the mandatory requirements to them of the anticorruption legislation1. One of the significant features of administrative liability lies in the fact that it can be established in relation to juridical persons, which is eliminated in case of criminal or disciplinary liability. This feature was implemented in Art. 19.28 of the RF CAO, which establishes administrative liability of juridical persons for the unlawful reward on behalf of the juridical person. In addition, Art. 19.29 of the RF CAO provides for administrative liability for violation of the restrictions imposed by the Law on Combating Corruption in relation to citizens substituting office of state or municipal service, within two years after leaving the state or municipal service. In the new draft of the Code of Administrative Offenses of the Russian Federation under consideration by the State Duma, the stated elements of administrative offenses are left unchanged. Most clearly the anti-corruption impact of the administrative liability is manifested in the provisions of Art. 19.28 of the RF COA, introduced in 20082, which provides for administrative liability of juridical persons for the unlawful reward on their behalf or for their benefit, expressed in the transfer, offer or promise to an official, a person who performs management functions in a commercial or other organization, to a foreign official or official of a public international organization of money, securities or other assets, the provision of the propertyrelated services, the provision of property rights for the commission in the interests of such juridical person by the official, the person who performs management functions in a commercial or other organization, the foreign official or the official of a public international organization of actions (inaction) connected with the official position held3. One of the significant features of this article is that the unlawful act is committed by an individual, but it is the juridical person that is 1

See: Conflict of interest on state and municipal service, in organizations: causes, prevention, management: scientific and practical guide / hole. Ed. A.F. Nozdrachev. M.: Institute of Legislation and Comparative Law under the Government of Russian Federation, 2016 P. 172.

2

Federal Law dated December 25, 2008 No. 280-FZ On Introducing Amendments to Certain Legislative Acts of the Russian Federation Associated with the Ratification of the United Nations Convention against Corruption dated October 31, 2003 and the Criminal Law Convention on Corruption dated January 27, 1999 and the Adoption of the Federal Law On Combating Corruption // Official Gazette of the Russian Federation. 2008. No. 52 (p. I). Art. 6235.

3

For details, see: Zyryanov S.M., Tsirin A.M. Administrative liability for the unlawful reward on behalf of a juridical person // Journal of Russian Law. 2015. No. 2. P. 82–90.

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held liable. Thus, the purpose of administrative liability, which is to prevent the commission of further administrative offenses by a person held liable and other persons, is achieved by means of compulsory influence on the juridical person that (control bodies of which) under the threat of such an influence must implement a set of measures, stipulated by the Law on Combating Corruption, including the identification of the unit or appointment of officials responsible for the prevention of corruption offenses; cooperate with law enforcement authorities; develop and put into practice standards and procedures to ensure diligent operation of the organization; adopt a code of ethics and professional conduct of employees of the organization; prevent conflicts of interest and take measures to address them; avoid drawing up an informal reporting and use of forged documents. Committing administrative offenses under Art. 19.28 of the RF CAO entails rather significant sanctions calculated depending on the cost of the administrative offense subject. Thus, in case of the cost of an administrative offense subject up to 1 million rubles the imposition of an administrative fine of up to three times the amount of money, the value of securities, other property, property-related services, other property rights, illegally transferred or rendered or promised or offered on behalf of a juridical person, but not less than 1 million rubles is stipulated, with the forfeiture of money, securities, other property or the value of property-related services, other property rights. Such fine shall be imposed including for offering bribes in the amount of 5 thousand rubles. The same act, committed on a large scale (the cost of an administrative offense subject over 1 million rubles) entails the imposition of an administrative fine of up to 30-fold amount of money, the value of securities, other property, property-related services, other property rights, illegally transferred or rendered or promised or offered on behalf of a juridical person, but not less than 20 million rubles, with the forfeiture of money, securities, other property or the value of property-related services, other property rights. Finally, commission of the administrative offense on an especially large scale (the cost of an administrative offense subject over 20 million rubles) entails the imposition of an administrative fine of up to 100-fold amount of money, the value of securities, other property, propertyrelated services, other property rights, illegally transferred or rendered 276

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or promised or offered on behalf of a juridical person, but not less than 100 million rubles, with the forfeiture of money, securities, other property or the value of property-related services, other property rights. Proceedings on administrative offenses provided for by Art. 19.28 of the RF CAO are associated with a number of law enforcement problems. First, all three parts of this article establish forfeiture of the administrative offense subject. However, there may be no subject of an administrative offense, if the objective side is formed by a promise of property, services or rights. It is also impossible to forfeit services rendered. Secondly, when qualifying this administrative offense, it is necessary to take into account the action of laws on administrative offenses in space. According to the provisions of the above article, an administrative offense means an act committed on the territory of the Russian Federation or abroad in the cases provided for by an international treaty of the Russian Federation. Accordingly, the commission of the actions provided for in this Article outside the territory of the Russian Federation does not constitute an administrative offense, even if all three parties (a natural person, an official and a juridical person) are Russian. Thirdly, as a rule, the case of an administrative offense under Art. 19.28 of the RF CAO is initiated based on the materials of the criminal case initiated on the fact of commission of the relevant crime (Art. 204 or 291 of the RF CC). Criminal law also provides for the forfeiture of the target of crime on the basis of a conviction (Art. 104.1 and 104.2 of the RF CC). Thus, there is a competition of the rules of RF CAO and of RF CC that require to apply forfeiture of the same subject in two separate processes. Fourth, the purpose of implementation of measures to prevent corruption is not only and not so much to recover from the perpetrators of fines, but also to promote lawful behavior in the form of exemption from criminal liability of citizens actively contributing to the disclosure and (or) the investigation of the crime, who have voluntarily reported to the law enforcement agencies about the bribe or extortion of a bribe by an official (note to Art. 291 of the RF CC). RF CAO does not stipulate such incentives, thus, a juridical person is guilty of an administrative offense, even if its employees 277

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and management bodies are exempted from criminal liability, which is perceived as injustice. Fifth, administrative penalties are so significant that the execution of the decision by the guilty juridical person may result in its liquidation, that is not the purpose of the application of an administrative penalty. The problems listed manifest themselves in legal practice, indicating that judges impose administrative fines in a smaller size than it’s established by the relevant norm of the RF CAO, and rarely impose forfeiture1. Part 1 of Art. 19.28 of the RF CAO contains a relatively specific sanction: the size of the imposed administrative fine may not be less than 1 million rubles, thus, the total amount of the administrative fines imposed on 405 persons must be more than 405 million rubles. A smaller value (more than by 70 million rubles2) indicates that the judges use the opportunity provided to them at the request of the Constitutional Court of the Russian Federation3 to impose a penalty in the amount less than the minimum administrative fine, provided for by the relevant article or part of the article of the Special Part of the RF CAO. Such right of a judge may be due to the presence of exceptional circumstances relating to the nature of the administrative offense and its consequences, property and financial situation of the juridical person brought to administrative liability. Judges also considered 31 cases on administrative offenses under p. 2 Art. 19.28 of the RF CAO, and brought 25 juridical persons to administrative liability. Forfeiture was not used, the total amount of fines imposed was 383,377,512 rubles (an average of 15,335,100 rubles for each juridical person). Sanction of p. 2 Art. 19.28 of the RF CAO requires to impose an administrative fine of not less than 20 million rubles4. 1

In 2015, the judges reviewed 541 cases under p. 1 of this article (in 2014 - 333 cases). 405 juridical persons were held administratively liable (in 2014 - 224 persons). Forfeiture was imposed only in relation to 37 juridical persons (2014 - 18). The total amount of the imposed administrative fines was 334,907,170 rubles (in 2014 - 191,877,636 rubles).

2

In 2014, this difference amounted to 35 million rubles.

3

See: Resolution of the Constitutional Court of the Russian Federation dated February 25, 2014 No. 4-P // ConsultantPlus Legal Reference System.

4

In 2014, fines in the amount of 317,164,000 rubles were imposed on 19 juridical persons, the average amount of the fine exceeded 16 million rubles, forfeiture was imposed on 5 persons.

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With regard to the cases on administrative offenses, provided by p. 3 Art. 19.28 of the RF CAO, in 2015, the judges considered only six such cases and punished one juridical person1. Cases concerning the administrative offenses provided for by Art. 19.28 of the RF CAO shall be initiated by prosecutors and considered by justices of the peace, and where an administrative investigation was carried out in the case – by district court judges. As distinct from the offenses specified in Art. 19.28 of the RF CAO, acts that constitute an offense provided for by Art. 19.29 of the RF CAO are more common. In 2015, 1,350 public officials and 2,077 juridical persons were held administratively liable for committing such administrative offense2. The administrative offense elements enshrined in Art. 19.29 of the Code of Administrative Offenses of the Russian Federation constitute a breach of the requirement of the Labor Code of the Russian Federation and the Law on Combating Corruption, and, therefore, a failure by an employer or a customer of work (services) to comply with its duty to inform a representative of the hirer (employer) of a state or municipal public servant according to his/her last place of employment about entering into a labor or civil contract within ten days, subject to the following: – a labor or civil contract for work or services has been entered into with a state or municipal public servant that holds an office included in the list specified by regulatory legal acts3, or a citizen that held such office previously, within two years following his/her dismissal from the service; – a state or municipal public servant, or a citizen that held a state or municipal public office has failed to obtain the consent of the corresponding commission for compliance with the requirements to 1

Only one juridical person was held administratively liable, with an imposition of an administrative penalty in the form of an administrative fine in the amount of 1 million rubles. In 2014, also only one juridical person was punished, with an imposition of an administrative fine in the amount of 20 thousand rubles, while the sanction of p. 3 Art. 19.28 of the RF CAO sets the imposition of an administrative fine of not less than 100 million rubles.

2

In 2014, 1,949 public officials and 1,136 juridical persons were held administratively liable under the said Article.

3

Decree of the President of the Russian Federation dated July 21, 2010 No. 925 On Measures to Implement Certain Provisions of the Federal Law On Combating Corruption // Official Gazette of the Russian Federation. 2010. No. 30. Art. 4070.

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official behavior and resolution of conflicts of interests to entering into the labor or civil contract; – the work is proposed to be performed (services are proposed to be provided) for one month and over; – the cost of work (services) exceeds RUB 100,000 per month. Obtaining the consent of the commission for compliance with the requirements to official behavior and resolution of conflicts of interest is conditioned upon finding, or a failure to find, that certain functions of public administration of the employer of customer of work (services) were part of employment (official) duties of such state or municipal public servant. It should be noted that the provisions of the Labor Code of the Russian Federation, Law on Combating Corruption, and Art. 19.29 of the RF CAO do not fully correspond to each other. For instance, the Labor Code of the Russian Federation stipulates that a citizen that held a state or municipal office included in the List approved by Decree of the President of the Russian Federation dated May 18, 2009 No. 557, is only required to obtain the consent of the commission for compliance with the requirements to official behavior and resolution of conflicts of interest, where he/she enters into a labor or civil contract with an entity, certain functions of administration of which were part of his/her employment (official) duties, within two years following his/her dismissal from the service. Furthermore, citizens that held offices included in the List, must inform their employers about their last places of employment when entering into labor contracts within two years following their dismissal from the service. No limits for remuneration of such citizen are stipulated. The Law on Combating Corruption restricts the right of a citizen dismissed from the state or municipal service to hold an office in an entity under a labor contract (perform work for, provide services to, such entity) with a necessity to obtain the consent of the commission for compliance with the requirements to official behavior and resolution of conflicts of interest within two years following his/her dismissal from the service, where such citizen held a state or municipal service office included in the List, and his/her remuneration for the work or services is proposed to exceed RUB 100 thsd per month, and where 280

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certain functions of administration of such entity were part of his/ her employment (official) duties. The Law on Combating Corruption also obligates a citizen that held a state or municipal service office included in the List, and dismissed from such state or municipal service to inform his/her employer of his/her last place of employment within two years following his/her dismissal. Article 19.29 of the RF CAO does not contain any clear description of the objective aspect of such administrative offense referring to the Law on Combating Corruption. Only an employer or customer of work (services) may be held administratively liable for committing the offense provided for by Art. 19.29 of the RF CAO. A citizen that held a state or municipal office and failed to comply with his/her duty to inform his/her employer of his/her last place of employment, will face adverse effects in the form of termination of the labor or civil contract entered into in violation of the law. Therefore, one may state that enforcement measures provided for by the legislation on administrative offenses are capable of having a quite substantial, though indirect, impact on the behavior of employees and management bodies of juridical persons. Introducing provisions that encourage management bodies of juridical persons to implement effective measures to combat corruption to the RF CAO appears to be a critical task. At the same time, we believe that the administrative liability potential is not exhausted, and administrative enforcement actions may also be provided for violations of the anti-corruption legislation requirements with respect to state and municipal public servants. § 3. CRIMINOLOGICAL ASPECTS OF CORRUPTION MANIFESTATIONS AND CRIMINAL LEGAL METHODS AIMED AT THEIR PREVENTION

The term «corruption» has traditionally been a synonym for bribery, where two parties act: the one giving a bribe – a corruptor, and the one taking a bribe – a corrupted party, or corruptionist1. In 1

A. Dolgova. Problem of Criminological Conditionality of Criminal Legislation on Corruption-Related Crimes // Ugolovnoye Pravo [Criminal Law]. 2013. No. 5. p. 61–63.

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terms of criminology, combating corruption-related crimes involves a complex system and structural activities that include as follows: general arrangements for combating corruption, prevention of corruption, and direct law enforcement activities on combating corruption, and provides for achieving the goal – to prevent mass violation of law by impacting the processes of determination and causation of corruption-related crimes. The vast outspread of corruption in Russia is evidenced by comments of social scientists and business community representatives, as well as sociological studies conducted by independent non-governmental organizations. However, any official confirmation of the negative trend in terms of the growing threat from corruption elements has not been provided as yet. The government has no complete and unbiased statistical data that would enable analyzing the criminal situation, and making a forecast on the crime development in the sphere of social relations in question to take timely and adequate legal decisions and organizational measures. Still, actions to combat corruption taken at the state level eventually resulted, in particular, in the reduced number of registered acts of such category. For instance, the number of such crimes committed in 2012 was 49,513, in 2013 – 42,506, in 2014 – 32,204, and in 2015 – 32,037. Over the recent years, the relative share of acts of corruption in the overall structure of crime decreased from 2.2% in 2012 to 1.4% in 2015 (1.9% in 2013, and 1.5% in 2014). This trend is present in most regions. However, the growth in the number of registered facts of taking bribes has been observed starting from QIII 2013. One of the reasons for the reduction in the total number of corruption-related crimes detected is the amended normative criteria for evaluating the performance of law enforcement agencies, pursuant to which qualitative indicators, including those related to the detection and suppression of the most significant wrongful acts committed on a large and especially large scales, as part of organized crime groups and syndicates, are taken into account. All these circumstances are aggravated by several specific features of corrupt relations, their latency associated with mutual interests of parties to an illegal deal. Mutual benefits of participants of a corrupt criminal deal is one of the factors that prevent the comprehensive 282

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registration of data on corruption manifestations in the criminal statistics system, as they promote the latency of such deal. At the same time, the imperfection of the Russian criminal legislation aimed at combating and preventing corruption manifestations should not be underestimated. For instance, the criminal legislation of the Russian Federation does not provide for any adequate liability for certain forms and types of socially dangerous and actual corruption that inflict substantial damage on the state and society. They include acts characterized by the lucrative conspiracy of public officials, investments in business entities out of the state budget, unjustified transfer of state property to business entities, incorporation of fake companies, concurrent public service and business activities. Furthermore, the legislative definition of the term «corruption» is quite narrow and implies simple bribery, and an exhaustive list of corruption-related crimes is not available in the legislation. The need for such transformation of the criminal legislation stems from the fact that corruption being one of the most dangerous types of criminal activities has certain specific features. In particular, it contemplates criminal activities, rather than a single crime. It comprises a range of lucrative crimes, interconnected and even not interconnected by a common intent, but always having a similar motive. The criminological characterization of corruption and corruptionrelated crimes provides for the review of certain specific features of this phenomenon. The criminological study of this phenomenon reveals its causes in the first place. It is common knowledge that producing any benefits requires expending certain resources to be compensated by funds received from consumers of such benefits. The salary of public servants employed by the government is classified as expenses eventually covered at the expense of a consumer of such benefits. A particular case is a public benefit paid for out of taxes, and provided by public servants. Notwithstanding the fact that citizens actually pay for the work of public servants, their employer is the government that grants them the right to make decisions affecting competing interests of various persons, at their own discretion. 283

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For this purpose, the government designates administrators, and confers certain powers on them. They receive necessary resources and have to comply with the prescribed rules of conduct, observing which is subject to supervision. Certain problems arise in this sphere of social relations. First, it is about the untimely adoption of laws that govern social relations associated with combating corruption manifestations, which has a negative impact on achieving the common goal – the reduced number of such crimes. Legislative rules change much more slowly than the living environment does; therefore, many social relations are governed at the discretion of public servants, which leads to corruption. However, it does not mean that in situations not covered by law, an administrator may choose a procedure most beneficial to himself/ herself. Second, the impossibility of ensuring comprehensive control over corruption manifestations should be noted. The supervision requires significant expenses, and moreover, excessively strict control undermines the management quality, and may lead to the churn of creative employees. Therefore, the management principle itself provides for a potential opportunity to commit corrupt actions, which evolves into objective conditions for the formation corruption, when it prevails over the risk of being held liable. One of the issues that attract attention of corruption origin researchers is studying the causes for its high level in the modern society. Most specialists agree that the major cause for the high level of corruption is the imperfection of political institutions designed to restrain the growth and spread of this socially dangerous phenomenon. Objective circumstances include: – uncertainty of several laws, e.g. with respect to the difference between aiding and abetting, and mediation; – lack of knowledge or understanding of laws by the population, which enables public officials to voluntarily prevent administrative procedures, or overstate requirements to their implementation; – professional incompetence of public officials; – general or political protection and connivance, which lead to latent agreements that weaken corruption control mechanisms; 284

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– disunity within the executive power system, i.e. different agencies govern the same activities; – low level of public involvement in supervising government activities. The literature also discusses other assumptions with respect to circumstances that may cause a high level of corruption (those hypotheses are not deemed to be proven), including: – low level of salary in the public sector as compared to the private sector; – state regulation of the economy; – citizens’ dependence on public servants, government monopoly with respect to certain services; – detachment of bureaucratic elites from people; – economic instability, inflation; – ethnic heterogeneity of the population; – low level of economic development (GDP per capita); – state of culture and legal consciousness of the country population as a whole. The key attribute of bribery is an unlawful deal, the participants of which are a public official, or state or municipal public servant not being a public official, or head of a business entity, and any other person interested in the actions (omissions) by the former as determined by the terms and conditions of such deal. Taking a bribe mandatorily contemplates a lucrative motive, and is aimed at obtaining a gain. At the same time, a bribe may be given on any grounds (seeking to get a prestigious appointment, win the competition, etc.). A lucrative motive, or any other personal interest represents an aspiration to obtain an illicit valuable benefit or gain for oneself or third parties, or derive a property benefit from committing illegal actions contrary to the interests of the service1. It should be noted that by Federal Law dated May 4, 2011 No. 97-FZ, part 1 Art. 290 of the RF CC was amended to read as follows: Bribetaking by a public official, a foreign public official, or a public official of an international public organization, in person or through an intermediary, in the form of money, securities, or any other assets, or in the form of unlawful provision of monetized services to him/ 1

See: T.O.Koshayeva Corruption and Law: Countering Prospects. Ufa, 2013. p. 32, 24.

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her , or granting any other property rights, for actions (omissions) in favor of a bribe-giver, or the persons he/she represents, if such actions (omissions) form part of the public official’s powers of office, or if the latter, by virtue of his/her office, may promote such actions (omissions), and also for overall protection or connivance in the service, shall be deemed a criminal act. Federal Law dated July 3, 2016 No. 324-FZ On Introducing Amendments to the Criminal Code of the Russian Federation and Criminal Procedure Code of the Russian Federation is also aimed at improving the criminal legislation of the Russian Federation. Specifically, based on the abovementioned Law, the disposition of part 1 Art. 184 of the RF CC (exerting unlawful influence on the results of official sports competitions, or entertainment profitmaking contests) is brought to terminological uniformity with the disposition of part 1 Art. 204 of the RF CC, which uses the «illegal transfer» notion instead of the «commercial bribery» notion. The new Art. 204.1 of the RF CC is proposed to provide for criminal liability for mediation in commercial bribery, as well as for promising or offering mediation in commercial bribery similarly to Art. 291.1 of the RF CC. Furthermore, liability for commercial bribery and mediation in the same (Art. 204, 204.1 of the RF CC) is differentiated depending on the commercial bribe scale. For the purpose of the said Articles, Note 1 to Art. 204 of the RF CC specifies significant, large and especially large scales of a commercial bribe that correspond to the bribe scales stipulated by Note 1 to Art. 290 of the RF CC. Furthermore, the abovementioned Law provides for enhanced liability for minor commercial bribery and minor bribery committed by a person that has been previously convicted of crimes specified in Articles 204-204.2 or 290-291 of the RF CC correspondingly, to the end that the availability of such aggravations shall work as a preventive measure against any repeated commitment of minor commercial bribery and minor bribery. Article 304 of the RF CC has also been amended to clarify the range of persons, with respect to which a provocation of bribery or commercial bribery as specified in Art. 290 of the RF CC is possible. The role of the state regulation of markets, and government as a monopolist are an issue in dispute. Free market supporters indicate 286

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that a lesser role of the government and improved competition contribute to a decrease in the corruption level, as the scope of discretionary powers is thus reduced, and opportunities for securing a dominant position in the market by means of protective regulation become limited. Corruption should be regarded as a social phenomenon characterized by bribery of civil and any other servants, receipt of tangible and other benefits and advantages by them for acts that may be committed using their official status. One of the key attributes of corruption as a wrongful act is the availability of a mechanism that constitutes the objective aspect of a corruption-related crime, and contemplates either of the following actions: – a deal involving two parties, under which one party – a person employed by a public or any other service (corruptionist), unlawfully «sells» his/her official powers or services based on the authority of his/her office and related thereto, to natural and juridical persons, and the other party is given an opportunity to use a public or any other power structure for his/her/its own purpose (enrichment, obtaining or strengthening any privileges, evading social control or liability); – extortion of bribes, or additional remuneration for the performance of non-performance of lawful or wrongful acts by servants; – self-motivated, active bribery of servants by natural or juridical persons often performed involving strong psychological impact. According to the judicial practice, a common type of extortion is a deliberate failure by a public official to implement his/her discretionary powers related to exercising the rights and interests of citizens, i.e. an omission by such person takes place. Therefore, the legislator has expanded the definition of bribetaking, range of corrupt encroachment objects, and its objective aspect to ensure the most efficient application of this provision in practice. Actors of corruption collectively form a corruption network that includes: 1) business and financial entities, their representatives that realize benefits and privileges received as a result of acts of corruption, and transforming them into additional income; 287

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2) a group of public and non-public servants that provide the said benefits and privileges for a fee, and ensure protection of bribegivers when making various decisions; 3) a corruption protection group comprising public officials of law enforcement, supervisory, and control agencies that provide general protection or connivance in the service. Still, it should be considered that corruption progresses primarily based on state and municipal structures. This is evidenced by the analysis of corruption flows at different levels of power: municipal public officials take the lead (according to certain data, with three quarters of the corruption services market), regional-level authorities account for 20%, and federal-level authorities – for 5%. The criminological review of corruption as a social and economic phenomenon contemplates the study of social and economic consequences of corruption-related crimes. The international community started realizing that corruption that was deemed a minor phenomenon until recently, is now associated with an increased social danger. The damage inflicted by this phenomenon comes at a price to the society. Specifically, the damage inflicted pursuant to criminal cases lodged with court in 2013 amounted to RUB 32.7 bln, which exceeds the 2012 figure by RUB 11 bln (RUB 21.8 bln). In 2014, the damage decreased as compared to 2013 and amounted to RUB 29.6 bln (by RUB 3.1 bln), and in 2015 it augmented to RUB 33.4 bln (as compared to 2013, the augmentation amounted to RUB 0.7 bln). The problems related to compensations for damage inflicted by corruption-related crimes, and forfeiture of property gained from committing such crimes, remain acute. Growing corruption has a negative impact on all aspects of social life: – undermines investment climate in the country, which results in the private business having no choice but to seek quick profits (often superprofits) in unpredictable conditions, while there are no conditions for long-term investments; – leads to increased administration costs (bribery eventually impacts taxpayers that are forced to pay much more for services); – has a vicious effect on executives employed both in public and non-public areas, thus reducing officials’ interest in fair work; 288

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– erodes confidence in top government echelons when becoming publicly known, and, therefore, questions their legitimacy; – promotes private interests of corrupt executives that are psychologically not willing to sacrifice their own benefits for the sake of prosperous society and state; – defeats the purpose of justice, as a person having more money and less moral self-restraints may turn out to be right; – leads to the unjustified redistributions of budgetary funds in favor of security agencies, thus exhausting strategic social programs, as it enables corruptionists to preserve the existing position in the pre-divided spheres of influence and property. Corruption-related crimes are most common in the fields of taxation, privatization, land commerce, public procurement, licensing of entrepreneurial and other economic activities, as well as customs, etc. In terms of economy, corruption promotes emergence and development of certain negative phenomena and processes: shadow economy expansion, which results in the loss of financial economy control levers by the government; distortion of market competition; slowdown in growth in the number of efficient private owners; unfair distribution of income that contributes to the enrichment of actors of corruption at the expense of all the remaining society members; imbalance of market competition mechanisms, as the promotion of products and services by giving bribes discredits the idea of free market competition; growing corruption in non-government organizations; creation of favorable conditions for the formation and development of organized crime. This leads to reduced tax proceeds to the state budget, capital outflow abroad, and hinders the government’s ability to perform its economical, political, and social functions. One of the challenges to the legal system established in the country is the outspread of unlawful asset redistribution in the form of raiding. Serious social consequences of corruption also include: underpayment of enormous amounts that could be channeled to the country’s social development, aggravation of budgetary crisis, reduced ability of the government to resolve social problems; increased wealth inequality; discredit of law as the key tool regulating the social life – the idea that the population has no protection against 289

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crime is enshrined in the public perception. Corrupt practices of law enforcement agency officials contribute to strengthening organized crime that grows even stronger by coalescing with groups of corrupt public servants and entrepreneurs, as it receives an opportunity to gain political power. The hazard of bribery also stems from the fact that it is frequently associated with other grave and especially grave crimes. Bribery often provides direct assistance to organized crime that cripples normal operations of the economic and administration systems of the state. The efficiency of corruption combating activities decreases due to the insufficient protection of persons that contribute to fighting corruption, preventing and suppressing corruption manifestations. Corruption is supported by the outspread of fraud and tax evasion. As a result of corruption reducing revenue of the state budget, the financial burden on taxpayers becomes increasingly greater. In addition, corruption weakens the regulatory framework designed to increase social responsibility of corporations and business community as a whole. The anti-corruption criminal legislation of the Russian Federation is under constant modernization. Finding new methods of, and approaches to, using criminal law tools in combating corruptionrelated crimes reflects in the development trends of institutes of both General and Special Parts of the RF CC. The differentiation of elements of crimes by object of crime (expansion of criminal law impact fields), and by objective aspect (methods, means, nature and content of acts of corruption) continues improving. Violations of requirements to consistency of the criminal legislation are also identified when comparing criminal penalties for such crimes (bribes and mediation). The review of statistical data concerning corruption-related crimes committed demonstrates that over 80% of such acts are classified as crimes of little and average gravity. As noted by the Chief Justice of the Supreme Court of the Russian Federation V.M. Lebedev at the workshop meeting of court presidents, the numbers of those convicted for bribe-taking in Russia in 2015 increased by 5% as compared to 2014, and amounted to 1.8 thsd people; the number of those convicted for bribe-giving raised by 4% – to 5 thsd people. In 290

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2014, the growth dynamics of the number of guilty verdicts delivered in the field of anti-corruption legislation were more pronounced: the number of those convicted for bribe-taking augmented by 13%, and for bribe-giving – by 25%. About a half of all such crimes in 2015 was committed by state and municipal public servants, and in 57% of cases the bribe amount did not exceed RUB 10 thsd. Therefore, the institution of a separate set of elements of crime that provides for liability for giving and taking minor bribes to the RF CC is currently elaborated1. In line with the concept of preferable imposition of criminal penalties for crimes posing minor danger to the public that do not contemplate offenders’ social isolation, the legislator has recently paid much attention to regulating the application of a fine as a punishment for corruption-related crimes. And although Art. 45 of the RF CC arranging the criminal penalty system enables imposing a fine both as principal or additional punishment, part 2 Art. 46 of the RF CC actually discusses a fine as principal punishment when calculating the amount of penalty based on the multiple bribe or commercial bribe amount. If a person maliciously evades payment of the fine imposed as principal punishment, such fine may be replaced by another penalty, except for deprivation of liberty. In such case, the fine shall be calculated based on the multiple cost of an item representing, or multiple amount of, the bribe or commercial bribe (part 5 Art. 46 of the RF CC as amended by Federal Law dated December 3, 2012 No. 231-FZ). However, the analysis of judicial practice related to fine impositions demonstrated that the amounts of fines to be imposed by the court as specified in Federal Law dated June 28, 2013 No. 131-FZ by no means always enable fair differentiation for the application of such type of penalty considering the degree of social danger of a corruption-related crime. Given this data, by adopting Federal Law dated March 8, 2015 No. 40-FZ, the legislator specified the lower limit of a fine imposed for bribe-taking equal to the 10-fold bribe amount (previously it amounted to the 20-fold bribe amount), and for bribe-giving – 5-fold bribe amount (previously such act was punished by a 15-fold fine). 1

URL: pasmi.ru/archive/133316

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Thus, the legislator has performed partial decriminalization with respect to the application of this kind of penalty. In addition, based on Federal Law dated July 3, 2016 No. 324-FZ, considering the need to implement the principle of justice when imposing a criminal penalty for such acts, Art. 204.2 and Art. 291.2 of the RF CC provide for criminal liability for commercial bribery, giving, or taking a bribe, the amount of which does not exceed RUB 10 thsd. However, these Articles provide for a lighter punishment as compared to the sanctions specified in part 1 Art. 204, part 1 Art. 290, and part 1 Art. 291 of the RF CC. The instability of anti-corruption criminal legislation poses additional issues in terms of its application, and requires considering criminologically significant judicial practice regularities in cases involving corruption-related crimes. Setting fines equal to 70-, 90, and 100-fold bribe amounts, including the problems related to implementing such penalty, involves hidden risks associated with the feasibility to realize such judicial practice, and execute the punishment imposed. The classification of corruption-related crimes is also indicative of certain criminological distinctions of this category of criminal offenses. A specific feature of this classification that draws attention is committing extortion as part of bribery. Taking a bribe is one of the most dangerous official crimes, especially if committed by a group of persons or accompanied with extortion, which contemplates a public official receiving advantages or benefits for performing legal or illegal actions. Giving a bribe is a crime aimed at inducing a public official to take any illegal actions (omissions), or receiving any advantages in favor of the bribe-giver. Papers specify certain attributes of a public official extorting a bribe: the conversation about a potential bribe is allegoric; a public servant stating his/her refusal to resolve any given issue may forward the contact to another person, who is not directly related to the resolution of such issue, etc. The danger of extortion stems not so much from demanding a bribe, as from actions supporting the mandatory nature of such demand for a bribe-giver that pose a threat to, or actually violate, the rights and interests protected by law. 292

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The aspects of classification of extortion as part of giving a bribe are discussed in sufficient detail by the Supreme Court of the Russian Federation in Resolution of the Plenum dated December 17, 2015 No. 56 On Judicial Practice in Extortion Cases (Article 163 of the Criminal Code of the Russian Federation). However, the systematic review and analysis of judicial practice in criminal cases, classification of corruption-related crimes, and justice of imposing punishments is an essential requirement to efficiently combat corruption. The problems associated with the classification of corruptionrelated criminal acts that require additional explanations from the Plenum of the Supreme Court of the Russian Federation, include the classification of mediation in bribery depending on the bribe scale, which is a distinctive feature of the degree of social danger of mediation, as well as proportions of liability of accomplices and mediators, and principles of making a distinction between administrative and criminal jurisdictions in combating corruption. The analysis of criminal law provisions performed demonstrates that major modernization trends in the criminal legislation of the Russian Federation as regards liability for corruption-related crimes are generally positive. Still, its reformation must be continued considering the recommendations for improving the provisions that stipulate liability both for bribery and commercial bribery, and for any other offenses that have an indirect relation to corruption-related crimes (e.g. abuse of power, appropriation of power, etc.). The criminal law impact on social relations associated with committing socially dangerous acts of corruption requires further improvement for the purpose of prevention and timely suppression of corruption-related crimes. § 4. DISCIPLINARY LIABILITY FOR CORRUPTION-RELATED OFFENSES

The compliance with labor discipline in terms of arranging an effective system for combating corruption is an important condition for normal labor (official) activities. Labor discipline is an integral part of any labor relations, irrespective of the legal form and form of 293

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ownership of an employer1. The legal science defines labor discipline as a body of rules of conduct to be complied with by persons being part of a permanent of temporary association to maintain the order required for its unhindered operation2. In theory, the objective and subjective senses of the category in question are distinguished. According to N.G. Aleksandrov, labor discipline, in its objective sense, means a body of rules of conduct to be complied with by persons being part of the staff of enterprises, undertakings, and institutions. In its subjective sense, labor discipline is the compliance by an employee with the labor regulations in place at the enterprise, in particular, instructions from, and supervision by, the labor process manager3. Disciplinary liability as one type of legal liability is the most efficient legal measure to combat corruption4. This type of liability is underpinned by a disciplinary offense committed by an employee in the discharge of his/her employment duties. In this case, the unlawful conduct comprises a wrongful violation of labor discipline by an employee, including a failure to perform of properly perform his/ her duties imposed by the employer within a certain job description. In general, minor offenses that constitute grounds for bringing to disciplinary liability are labor discipline violations. Disciplinary liability as a legal category represents quite a complex system that provides for: – liability of employees in accordance with the internal labor regulations, by way of subordination, under special codes and regulations, and liability of employees of certain non-governmental organizations (gold-mining cooperative, bar associations); – responsibility of students of schools, technical vocational schools, specialized secondary schools, and higher education institutions; – responsibility of military personnel, employees of law enforcement agencies under the Ministry of Internal Affairs, Federal 1

See: L.A. Lomakina. Disciplinary Liability as One Type of Legal Liability // Legal Liability: Contemporary Challenges and Solutions: Proceedings of the VIII Annual Scientific Readings in Memory of Professor S.N. Bratus / Managing editor N.G. Doronina. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2013. p. 174.

2

See: L.S. Tal. Labor Contract: Civil Study. Part 2. Yaroslavskoye, 1918. p. 163.

3

See: N.G. Aleksandrov. Labor Relations as a Subject of Legal Regulation // Uchenyye trudy of VIYuN [Proceedings of the All-Union Institute of Legal Science]. Moscow, 1947. p. 262.

4

L.A. Lomakina. Ibid. p. 177.

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Security Service of Russia, and other authorities, where discipline is similar to military discipline; – responsibility of persons that serve their sentences; – responsibility of minors in special education institutions1. However, as a type of legal liability, disciplinary liability is based on a single system of principles known to legal science. These include the principles of legality, humanism, equality before the law, etc. Still, the type of legal liability in question also has certain specific features. In particular, one should note the principle of personalization of disciplinary liability of public servants that involves the stipulation of disciplinary liability by provisions of law that govern official and tortious relations, as well as the need for those applying the law to consider the criteria specified by the legislator. This principle is enshrined in part 3 Art. 58 of the Federal Law On the State Civil Service of the Russian Federation, which specifies that when applying a disciplinary penalty, one shall consider the gravity of a disciplinary offense committed by a civil servant, his/her degree of guilt, circumstances, under which the disciplinary offense was committed, and previous results of performance of his/her official duties by such civil servant. Such consideration shall be based on the legal consciousness of a senior official imposing a disciplinary penalty2. Disciplinary liability also has specific features depending on the scope of labor activities. Specialists note its specific nature when applied to public servants, including judges, law enforcement officers, military personnel, etc.3 This stems from the fact that the

1

For details, see: A.V. Dubrovin. Disciplinary Liability in Labor Relations as One Type of Legal Liability // Trudovoye Pravo [Labor Law]. 2008. No. 8.

2

For details, see: M.B. Dobrobaba. Principles of Disciplinary Liability of Public Servants: Constitutional Framework and Problems of Implementation in Service Law Provisions // Leningradsky Yuridichesky Zhurnal [Leningrad Law Magazine]. 2015. No. 2. p. 131–145.

3

E.g., see: I.A. Grabovsky, O.S. Lilikova. Disciplinary Liability in the State Civil Service// Yurist [Lawyer]. 2013. No. 17. p. 31–32; O.V. Romanovskaya. On Disciplinary Liability of Judges // Rossiyskaya Yustitsiya [Russian Justice]. 2012. No. 9. p. 46–51; L.V. Gustova. Certain Issues of Disciplinary Liability of Militia Officers // Trudovoye Pravo [Labor Law]. 2010. No. 1. p. 83–86; K.V. Fateyev, S.S. Kharitonov. On the Content of Military Discipline, Military Disciplinary Offense, and Disciplinary Liability of Military Personnel Notions // Pravo v Vooruzhennykh Silakh [Military Law]. 2012. No. 1. p. 10–18; No. 2. p. 3–13; R.P. Alekseyev. Disciplinary Liability of Notaries Engaged in Private Practice // Notarius [Notary]. 2012. No. 2. p. 7–9.

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service procedure for such persons is governed by regulations that substantially differ from each other in terms of their content. The structure of disciplinary liability actually contains a separate legal regulation that provides for liability of public servants for corruption-related offenses1. Statistics show that the bulk of such offenses is represented by failures to comply with the anti-corruption legislation requirement, which entails disciplinary liability . Specifically, in recent years, over 10 thsd officials are annually brought to disciplinary liability for violations of the legislation on combating corruption under prosecutors’ submissions. However, this figure is not static, and demonstrates a growth trend. According to the Head of the Presidential Anti-Corruption Department of the Russian Federation O. Plokhoy, in 2015, 18 thsd officials at different levels were brought to disciplinary liability for the failure to comply with the anti-corruption restrictions and prohibitions. 800 people were dismissed2. In November, 20113, the amendments to federal laws that govern the state and municipal service procedure specified dedicated provisions concerning disciplinary liability for corruption-related disciplinary offenses. In particular, the failure to comply with the restrictions and prohibitions, and requirements to prevent or resolve conflicts of interest, and failure to perform the duties prescribed for the purpose of combating corruption by a state or municipal public servant entail a reproof, reprimand, or warning of professional impropriety. In addition, a fundamentally new ground for dismissal from the state and municipal service (concept of bringing public servants to liability) was instituted – due to the loss of confidence. According to the Ministry of Labor and Social Protection of the Russian Federation, approximately 700 persons were dismissed from their offices in federal public authorities, executive authorities of constituent entities 1

See: Yu.N. Tuganov, S.I. Zhuravlev. On Bringing Public Servants to Disciplinary Liability for Corruption Offenses// Rossiyskaya Yustitsiya [Russian Justice]. 2014. No. 4. p. 57–60.

2

See: Confidence in Kopecks // Rossiyskaya Gazeta [Russian Newspaper]. 2016. May 10.

3

Federal Law dated November 21, 2011 No. 329-FZ On Introducing Amendments to Certain Legislative Acts of the Russian Federation Associated with the Improvement of Public Administration in the Field of Combating Corruption // Official Gazette of the Russian Federation. 2011. No. 48. Art. 6730.

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of the Russian Federation, and local self-government authorities on this ground from 2012 till the first half of 20151. This ground is used in cases where a public servant fails to take actions to prevent, and/ or resolve a conflict of interests, a party to which he/she is; fails to provide information about his/her income, property, and propertyrelated liabilities, as well as income, property, and property-related liabilities of his/her spouse and minor children, or provides knowingly misleading or incomplete information; participates in operations of a management body of a business entity for a fee; is engaged in entrepreneurial activities; is a member of a management body, guardianship or supervisory board, or any other body of a foreign non-profit non-governmental organization. Article 57 of the Federal Law On the State Civil Service of the Russian Federation specifies that disciplinary penalties shall be imposed for committing a disciplinary offense, i.e. for the civil servant’s failure to perform or properly perform his/her duties through his/her fault. This Article enshrines the rights of a hirer’s representative to apply the following disciplinary penalties: reproof, reprimand, warning of professional impropriety, or dismissal from the civil service on grounds stipulated by para. 2, subparas a-d of para. 3, paras 5, and 6 of part 1 of Art. 37 of the Federal Law On the State Civil Service of the Russian Federation. The listed grounds for dismissal from the civil service are not classified as those of anticorruption nature, as the dismissal for committing a corruption offense is provided for by para. 1.1 of part 1 of Art. 37, and para 13 and para 14 of Art. 33 of the said Law. In addition, provisions of Articles 59.1 and 59.2 describe penalties for the failure to comply with the anti-corruption restrictions and prohibitions, and the procedure for dismissal from the civil service due to the loss of confidence. Therefore, the Federal Law On the State Civil Service of the Russian Federation provides for the instances of bringing state civil servants to disciplinary liability for committing disciplinary offenses, and separately stipulates the instances of bringing a state civil servant to liability for a corruption offense, without calling such offense disciplinary. 1

Letter of the Ministry of Labor and Social Protection of the Russian Federation dated June 10, 2015 No. 01-12/687. The document has not been published.

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From November, 20121, the dismissal (termination of appointment) due to the loss of confidence for committing a corruption offense applies to persons that hold offices in the Central Bank of the Russian Federation, state corporations, any other organizations established in the Russian Federation based on federal laws, and in organizations created to fulfill the tasks assigned to the federal public authorities. Therefore, disciplinary liability in the form of dismissal due to the loss of confidence for violating the anti-corruption legislation currently applies to two categories of persons: 1) persons that hold public offices of the Russian Federation, public offices of constituent entities of the Russian Federation, and municipal offices; 2) persons that hold offices in the Central Bank of the Russian Federation, state corporations, Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund, any other organizations established in the Russian Federation based on federal laws, in organizations created to fulfill the tasks assigned to the federal public authorities. The legal framework for bringing state and municipal public servants, and employees of other organizations to disciplinary liability for committing corruption offenses comprises the Law on Combating Corruption, and any other regulatory legal acts that specify the legal standing (status) of state and municipal public servants, as well as the grounds and procedure for applying disciplinary penalties to them. Duties and prohibitions set for the purpose of combating corruption are also enshrined in job descriptions (instructions) of state and municipal public servants. To classify disciplinary offenses as corruption-related, one should consider that the violation of anti-corruption regulations is committed contrary to the interests of the government, society, citizens, or organizations, involving or not involving a breach of the regulatory procedure for discharge of official duties, i.e. the imposition of disciplinary penalties is conditioned upon the violation of service 1

Federal Law dated December 3, 2012 No. 231-FZ On Introducing Amendments to Certain Legislative Acts of the Russian Federation Associated with Adopting the Federal Law On Supervision Over Matching Expenses of Persons that Hold Public Offices, and Other Person Against Their Income// Official Gazette of the Russian Federation. 2012. No. 50 (part IV). Art. 6954.

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discipline. Service discipline means the mandatory compliance by a servant with the official regulations of an authority or organization, and his/her job description adopted in accordance with the legislation, regulatory acts of such authority, or organization, and service contract. A violation of service discipline contemplates the wrongful culpable failure to perform or properly perform the official duties, including those prescribed for the purpose of combating corruption, for which a hirer’s representative is entitled to apply various disciplinary penalties to servants, in particular, the dismissal on the ground of «loss of confidence». The object of the set of elements of a corruption-related disciplinary offense has a complex structure. On the one side, such object is service discipline comprising the official regulations of a state (municipal) authority, or any other organization, and the job description that govern the internal official relations (for all parties subject to disciplinary liability ) established by the government (authority, organization), and on the other side, if we use the public service notion provided by B.Yu. Lazarev as a basis1, it is the procedure for performance of the government’s tasks and functions by state (municipal) authorities (for state and municipal authorities), and on the third side, it is the anti-corruption standards as a body of duties, prohibitions, and restrictions prescribed by the legislation (for all parties subject to disciplinary liability ). Based on the fact that the anti-corruption legislation requirements apply to2 the federal public authorities, public authorities of constituent entities of the Russian Federation, local self-government authorities, state corporations (companies), state non-budgetary funds, any other organizations established in the Russian Federation based on federal laws, and organizations created to fulfil the tasks assigned to the federal public authorities, it is safe to say that special anti-corruption requirements in accordance with the federal laws adopted constitute an integral part of the official regulations of such 1

For details, see: B.M. Lazarev. Public Service. Moscow, 1993.

2

E.g., see: Methodological Framework for Supplementary Vocational Training of Federal Civil Servants in Efficient Staffing of HR Department Units for Prevention of Corruption and Other Offenses. Report. Moscow: Institute of Legislation and Comparative Law under the Government of the Russian Federation, 2015. p. 15.

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authority or organization, and part of the state and municipal service procedure. According to case law1, the reasons for application of disciplinary penalties for committing corruption offenses to state and municipal public servants are generally as follows: – failure to take actions to prevent, and/or resolve a conflict of interests, a party to which a state or municipal public servant is; – engagement in entrepreneurial activities; – failure to provide information about public servant’s income, property, and property-related liabilities, including about those of his/her spouse and minor children, or provision of knowingly misleading or incomplete information. A disciplinary offense, including a corruption-related one, is the sole ground for bringing to disciplinary liability . Corruption-related disciplinary offenses include breaches of law, other than crimes or administrative offenses that have attributes of corruption, or violate anti-corruption regulations, and entail disciplinary penalties2. Specifically, the Federal Law On the State Civil Service of the Russian Federation (Art. 33) specifies the violation of prohibitions, and failure to perform the duties prescribed by the Law on Combating Corruption as grounds for terminating a service contract with a state civil servant. In terms of content, corruption-related disciplinary offenses are proposed to include violations of prohibitions, requirements, and restrictions for state (municipal) public servants, and any other persons, that are prescribed by the legislation to prevent corruption, and constitute grounds for application of disciplinary penalties and dismissal. For instance, any failure by a public servant to notify of approaches with a view to induce him/her to commit corruption offenses (Art. 9 of the Law on Combating Corruption) entails liability pursuant to the legislation of the Russian Federation.

1

Overview of Judicial Practice in 2012-2013 Cases Involving Disputes Associated with Bringing State and Municipal Public Servants to Disciplinary Liability for Committing Corruption Offenses (approved by the Presidium of the Supreme Court of the Russian Federation dated July 30, 2014) // Russian Labor and Social Law Bulletin. No. 9. 2014.

2

See: A.V.Bakharev, T.L.Kozlov, V.A. Nepomnyashchy et al. Anti-Corruption Activities of the Law Enforcement Agencies of the Russian Federation / composite author; edited by A.V. Kudashkina. Moscow, 2011. p. 59.

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The legislation does not provide for a single list of corruptionrelated disciplinary offenses. Corruption-related disciplinary offenses are listed in Art. 59.2 of the Federal Law On the State Civil Service of the Russian Federation1; their descriptions are contained in other laws that govern service discipline in the public service. For instance, violations of service discipline include the concealment by an employee of the Federal Fire Service of approaches by any persons with a view to induce him/her to commit a corruption offense (para. 12 Art. 48 of Federal Law dated May 23, 2016 No. 141-FZ On Serving in the Federal Fire Service of the State Fire Service, and on Introducing Amendments to Certain Legislative Acts of the Russian Federation2). This Law specifies penalties for the failure to comply with the restrictions and prohibitions, and requirements to prevent or resolve conflicts of interest, or failure to perform the duties prescribed for the purpose of combating corruption (Art. 50), and stipulates the procedure for imposition of penalties for corruption offenses on employees of the Federal Fire Service (Art. 52). The list of corruption offenses may be divided into minor disciplinary offenses, which may entail such penalties as reproof, reprimand, or warning of professional impropriety, and significant disciplinary offenses3 that may entail dismissal due to the loss of confidence. The common problem in classifying minor offenses in practice is formalism. Even if any corruption offense, e.g. a conflict of interest, 1

These include as follows: civil servant’s failure to take actions to prevent, and/or resolve a conflict of interests, a party to which he/she is; failure to provide information about his/her income, expenses, property, and property-related liabilities, as well as income, expenses, property, and propertyrelated liabilities of his/her spouse and minor children, or provision of knowingly misleading or incomplete information; participation in operations of a management body of a business entity for a fee; civil servant’s engagement in entrepreneurial activities; civil servant’s membership of a management body, guardianship or supervisory board, or any other body of a foreign non-profit non-governmental organization, or its organizational unit operating in Russia, unless otherwise provided by the legislation; violation by a civil servant, his/her spouse, or minor children of the prohibition to open and have accounts (deposits), and keep cash and valuables with foreign banks located outside the Russian Federation, own and/or use foreign financial instruments.

2

Official Gazette of the Russian Federation. 2016. No. 22. Art. 3089.

3

Letter of the Ministry of Labor and Social Protection of the Russian Federation dated March 21, 2016 On Criteria for Bringing to Liability for Corruption Offenses // Official website of the Ministry of Labor and Social Protection of the Russian Federation. URL: http://www.rosmintrud.ru/ministry/ programms/ gossluzhba/antikorr/2/18

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is detected, authority’s senior officials prefer either resolving it independently, i.e. eliminating the same on a routine basis, without making it public, or ignoring such issue. The stance of a hirer’s representative wishing to «save face» and conceal the conflict of interest from subordinate employees and the society by any means represents a gross violation of legislative requirements that also entails dismissal of a civil servant being the hirer’s representative from the civil service due to the loss of confidence under para. 1.1 part 1 Atr. 37 of the Federal Law On the State Civil Service of the Russian Federation. Therefore, when applying any disciplinary penalty, and especially in the event of dismissal for a single disciplinary offense, it should be noted that the dismissal is the strictest penalty, which should only apply for a gross violation of service discipline. The aggravating circumstances that may be taken into account when considering the imposition of a penalty for a corruption offense, include1: – providing misleading and contradictory explanations during the check, and any other actions aimed at hindering the check progress; – simultaneous violation of two and more requirements of the legislation on combating corruption; – availability of an unexpunged disciplinary penalty; – violation of requirements of the legislation on combating corruption during previous declaration campaigns; Based on the consolidated results of monitoring the application of disciplinary penalties for the state (municipal) public servant’s failure to comply with the restrictions and prohibitions, and requirements to prevent or resolve conflicts of interest, and/or his/her failure to perform the duties prescribed by the legislation on combating corruption, the Ministry of Labor and Social Protection of the Russian Federation determined the list of cases that do not entail any disciplinary penalty, as they do not constitute any offense (even a minor offense) – these are «insignificant» 1

Letter of the Ministry of Labor and Social Protection of the Russian Federation dated March 21, 2016 On Criteria for Bringing to Liability for Corruption Offenses // Official website of the Ministry of Labor and Social Protection of the Russian Federation. URL: http://www.rosmintrud.ru/ministry/ programms/ gossluzhba/antikorr/2/18

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offenses committed for the first time, without any aggravating circumstances available1: a) improper compliance with a prohibition, or failure to comply with a duty due to a force majeure, i.e. emergency circumstances unavoidable under given conditions (fire, flood, military action, etc.) that demonstrably impede the provision of information about income, expenses, property, and property-related liabilities within the time limit prescribed by the legislation, or obtaining of data (documents) required to ensure reliable and complete disclosure of such information, or compliance with the restriction, prohibition, or requirement to prevent or resolve a conflict of interests; b) specifying incorrect (inaccurate) information in the statement of income, expenses, property, and property-related liabilities due to mistakes and inaccuracies made by a public authority or any other organization in the documents (extracts) issued to a public servant, based on which he/she filled in the statement, as well as any other causes where an inaccuracy in the information provided is due to reasons beyond control of such public servant. The Russian legislation does not provide for the «loss of confidence» notion. Therefore, the loss of confidence by a hirer’s representative in a public servant may be understood as relations that emerge due to such public servant committing actions (omissions), which cause doubts of the hirer’s representative with respect to the honesty, integrity, good faith, sincerity of motives, and ability to efficiently discharge the official duties of such public servant2. The loss of confidence means the loss of employer’s confidence in the lawfulness of employee’s conduct, if the latter’s employment duties include performing special functions that require trust

1

Overview of Practice Related to Bringing State (Municipal) Public Servants to Liability for the Failure to Comply with the Restrictions and Prohibitions, and Requirements to Prevent or Resolve Conflicts of Interest, and Failure to Perform the Duties Prescribed for the Purpose of Combating Corruption // Letter of the Ministry of Labor and Social Protection of the Russian Federation dated March 21, 2016 On Criteria for Bringing to Liability for Corruption Offenses // Official website of the Ministry of Labor and Social Protection of the Russian Federation. URL: http://www.rosmintrud.ru/ ministry/programms/ gossluzhba/antikorr/2/18

2

For details, see: N.I. Vorobyev, V.A. Galkin, M.M. Mokeyev, I.N. Osipova, A.B. Yudina. Comment on Federal Law dated July 27, 2004 No. 79-FZ On the State Civil Service of the Russian Federation (by Article) // GARANT Legal Reference System.

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relations with the employer, and if such circumstance may have a negative impact on his/her discharge of official duties1. In the legislation, this notion is described through a specific list of judgment-based circumstances, which entails a certain risk of discretion of a hirer’s (employer’s) representative associated with an opportunity to dismiss an employee from his/her office for a proposed corruption offense. The analysis of judicial practice related to bringing public servants to disciplinary liability due to the loss of confidence in recent times demonstrated that most complaints are filed by former employees of internal affairs agencies and customs authorities. In the vast majority of cases, courts dismiss such complaints on reasonable grounds taking the side of the corresponding public authorities. The routine breaks only if, for instance, a public authority commits procedural faults in the dismissal procedure (failure to meet the time limit for application of disciplinary penalties)2. In other situations, courts accept arguments of public authorities concerning the public servants’ guilt in committing corruption offenses almost without reservation. There are instances of filing appeals against bringing to liability and dismissal on the ground of loss of confidence, where a public servant fails to provide information, or provides incomplete or misleading information about income of his/her spouse. However, in such case, an intent is not always seen. Such situations often occur where spouses, for instance, have not got divorced officially, but do not live together anymore, and reside in different cities. The nonavailability of clear recommendations with respect to resolving the said problem leads to difficulties in law enforcement practice3. Despite of the efficiency of such disciplinary penalty having a strictly preventive nature, certain specialists already express their concerns about the application of the «loss of confidence» ground for 1

For details, see: T.A.Izbiyenova. Loss of Confidence as a Ground for Dismissal from the State Civil Service // Kadrovik. Trudovoye Pravo dlya Kadrovika [HR Manager. Labor Law for HR Managers]. 2013. No. 3.

2

Judgment of the Furmanov City Court of the Ivanovo Region dated December 20, 2012.

3

The judgment-based notion of «completeness of information provided» used by the legislator also causes argument in law enforcement practice. And in such circumstances, it is essential for the court to evaluate all circumstances of the case.

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dismissal, as in such case, a public servant depends on a certain senior official, which may lead to a situation, where the public servant serves the interests of such senior official, rather than the interests of the state, society, and citizens, and this, in turn, contributes to strengthening corruption, because the most complex corruption practices in terms of their investigation are those involving the coverage of subordinates by senior officials, and «confidence» as between them1. To prevent violation on the part of an employer in the event of dismissal due to the loss of confidence, again, one should consider the nature and gravity of a corruption offense committed, circumstances, under which it was committed, public servant’s compliance with other restrictions and prohibitions, and requirements to prevent or resolve conflicts of interests, and his/her performance of the duties prescribed for the purpose of combating corruption, and previous results of performance of his/her official duties by such public servant. Such information on a public servant will contribute to either the mitigation, or aggravation of his/her disciplinary liability. In practice, the following circumstances have been considered as mitigating: a) a public servant has violated the requirements of the legislation on combating corruption for the first time; b) a public servant faultlessly complied with any other restrictions, prohibitions, and requirements, and performed the duties prescribed for the purpose of combating corruption in the reporting period; c) a public servant voluntarily reported of the violation of the requirements of the legislation on combating corruption committed by him/her to the Unit for Prevention of Corruption and Other Offenses prior to the check provided for by Decree of the President of the Russian Federation dated September 21, 2009 No. 10652; 1

Minutes of the Meeting of the Commission for Compliance with Requirements to Official Behavior of Federal Civil Servants of the Department, and Settlement of a Conflict of Interests. Federal Treasury Department for the Republic of Kalmykia (FTD for the Republic of Kalmykia). Elista, 2014. August, 13

2

On the Check of Reliability and Completeness of Information Provided by Citizens Seeking to Hold Offices of the Federal Public Service, and Federal Public Servants, and Compliance with Requirements to Official Behavior by Federal Public Servants // Official Gazette of the Russian Federation. 2009. No. 39. Art. 4588.

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d) a person under check assisted in taking measures aimed at the comprehensive examination of the check subject during the check. Given any mitigating circumstances available, a penalty preceding the same, which would be imposed for such offense without any mitigating circumstances available, in terms of severity, generally applies. At the same time, the final decision on a certain disciplinary penalty to be imposed is made by a hirer’s representative; therefore, to eliminate internal contradictions between the provisions contained in the Federal Law On the State Civil Service of the Russian Federation that govern the application of penalties, wordings, such as «entails dismissal» (part 3 Art. 20.1), and «subject to dismissal» (part 1 Art. 59.2) must be replaced by the «may be dismissed» wording. Over the years of development and improvement of the anticorruption legislation, the procedure for bringing public servants to disciplinary liability for corruption offenses has evolved into independent proceedings1. The grounds for initiating such proceedings, and procedure for performing the check and examination of check reports by the attestation commission have been determined, and the process for making a decision on the application of disciplinary penalties has been prescribed2. Disciplinary liability is characterized by the measures to coerce an offender to proper conduct (disciplinary penalties), special powers vested in a specific range of persons to bring a public servant to disciplinary liability (disciplinary power) based on the elements of an offense, which entails the corresponding measures (disciplinary offenses)to be applied, and a certain procedure for appealing against disciplinary penalties imposed. To prescribe a common procedure for application and expungement of disciplinary penalties in the legislation (Art. 57 of the Federal Law On the State Civil Service of the Russian Federation), it would be expedient to use a differentiated approach to the procedure for application of penalties considering the type of offense, by

1

See: Yu.N. Tuganov, S.I. Zhuravlev. On Bringing Public Servants to Disciplinary Liability for Corruption Offenses// Rossiyskaya Yustitsiya [Russian Justice]. 2014. No. 4. p. 57–60.

2

See: I.V. Baranenkova. On Certain Issues of Bringing Military Personnel to Disciplinary Liability for Corruption Offenses // Pravo v Vooruzhennykh Silakh [Military Law]. 2014. No. 7. p. 31.

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complementing the common procedure for application of penalties with the procedure specified in Art. 59.3 for corruption offenses. If the said offenses are regarded as disciplinary, the procedure for application of penalties must be unified for all types of disciplinary offenses as the most reasonable procedure, contributing to the proper application of penalties, and facilitating the understanding of the law by those applying the law to a sufficient degree. Committing a disciplinary offense is a legally relevant circumstance in terms of bringing a person to disciplinary liability ; therefore, in each case where service discipline has been violated, an official investigation must be conducted, and not only based on a decision of a hirer’s representative, or a written statement of a public servant (part 1 Art. 59) as required by law. Specifically, according to the General Prosecutor’s Office of the Russian Federation, senior officials of public authorities become aware of about 81% of corruption-related disciplinary offenses committed, but investigations were conducted only with respect to 42% of the cases, of which senior officials became aware, and only 26% of persons involved were brought to liability 1. An official investigation must contribute to the impartial application of a disciplinary penalty, serve as a filter against subjectivity of a hirer’s representative, and be a mandatory requirement of the procedure for application of any penalty for committing a disciplinary offense. Therefore, conducting an official investigation must become a mandatory requirement of the procedure for application of a disciplinary penalty as specified in Art. 58 of the Federal Law On the State Civil Service of the Russian Federation, and part 1 of Art. 59 thereof stating that such investigation may only be conducted based on a decision of a hirer’s representative, or a written statement of a civil servant must be excluded from of the said Law. In our opinion, the availability of inconsistent legal provisions regarding disciplinary liability in the state (municipal) service, and lack of a single approach to the service discipline notion prevent the application of liability for the failure to comply with the same. In addition, the lack of a holistic approach to understanding the essence of the «loss of confidence» notion also undermines the integrity of 1

See: A.V.Bakharev, T.L.Kozlov et al. Latency of Offenses in the Field of Combating Corruption: Scientific Report. Moscow, 2011.

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judicial and law enforcement practices being shaped; therefore, the following question may arise in law enforcement practice: 1) Is the loss of confidence final (perpetual), or will it exist for a certain period? As for the duration of the loss of confidence, para. 10 part 1 Art. 16 of the Federal Law On the State Civil Service of the Russian Federation provides for the perpetual prohibition to hold offices in the state civil service imposed on a citizen, where a disciplinary penalty in the form of loss of confidence has previously been applied to such citizen as a state civil servant. However, in other cases provided for by the legislation, in the event of dismissal based on the said ground from an employment other than the state civil service, the opportunity of recruitment in the service (holding an office) may be considered at the discretion of a hirer’s (employer’s) representative with due regard to the requirements of the corresponding laws. In such situation, the constitutional principles of equality and justice, which underpin the need for equal treatment of persons being under equal conditions, and compliance with which contemplates, inter alia, a prohibition to introduce any differences in the scope of rights of persons being under equal and similar circumstances without an impartial and reasonable justification, are not fully observed, which has been repeatedly noted by the Constitutional Court of the Russian Federation1. As part of the list of instructions of the President of the Russian Federation for 2016, the Ministry of Labor and Social Protection of the Russian Federation was instructed to prepare suggestions for drawing up and publishing a list of persons dismissed due to the loss of confidence to prevent their further admission into the state service. The objective to prevent such admission into the municipal service was not set by the President of the Russian Federation. The instruction of the President of the Russian Federation to publish information about bringing to liability in the form of dismissal due to the loss of confidence for committing corruption offenses to be implemented by the Ministry of Labor and Social Protection of the Russian Federation poses a question regarding the duration of 1

See: Resolution of the Constitutional Court of the Russian Federation dated May 24, 2001 No. 8-P; dated November 10, 2009 No. 17-P; dated April 13, 2016 No. 11-P, etc.

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the prohibition to be recruited into the state or municipal service, as well as to hold an office in such service. Such information is proposed to be included in the Register of Persons Dismissed Due to the Loss of Confidence. The Register will be supplemented with information about the dismissal of persons that hold public offices of the Russian Federation, public offices of constituent entities of the Russian Federation, and municipal offices; that hold offices in the Central Bank of the Russian Federation, state corporations (companies), Pension Fund of the Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund, any other organizations established in the Russian Federation based on federal laws, and certain offices in organizations created to fulfil the tasks assigned to the federal public authorities based on labor contracts. The said information is proposed to be perpetually kept in the information system. It should be noted that currently the restrictions with respect to holding state and municipal public offices are imposed on persons with criminal records, including state and municipal public servants, to whom a criminal penalty in the form of deprivation of the right to hold certain offices, or engage in certain activities has been applied, as well as those subjected to an administrative penalty in the form of disqualification. However, establishing a complete (perpetual) prohibition to be recruited into the state or municipal service for persons brought to disciplinary liability in the form of dismissal due to the loss of confidence will become a heavier legal consequence compared to criminal and administrative penalties, which is inconsistent with the legal nature of disciplinary liability itself. 2) Who has lost confidence: a certain public official being a hirer? The hirer itself as a certain authority (organization) represented by its representative? The entire service system (the complex of authorities and organizations, by which a citizen was employed in the state (municipal) service), or only one certain type of service – state or municipal; civil or military, etc.? Specifically, a citizen may not be recruited into the civil service, and a civil servant may not hold a civil office in the event of loss of confidence in the civil servant by a hirer’s representative1. In 1

See para. 10 part 1 Art. 16 of the Federal Law On the State Civil Service of the Russian Federation.

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such case, a hirer’s representative must be regarded as an actor representing the state (municipal) service as a whole. The above review of problems associated with the regulation and application of disciplinary liability for corruption offenses highlights the need for further improvement of the legislation concerning the disciplinary liability, which would allow ensuring compliance with the principle of inevitability of punishment for disciplinary offenses committed. § 5. LIABILITY OF JURIDICAL PERSONS FOR CORRUPTION-RELATED OFFENSES

In most countries across the globe, one of the most important components of combating corruption is prescribing liability of juridical persons for corruption offenses. Holding juridical persons liable enables recovering significant fines against guilty organizations, which has a substantial impact on other participants of market relations, and facilitates shaping a healthy competitive environment. Depending on the national legislation of a certain state, for committing a corruption offense, a juridical person may be held civilly, administratively, or criminally liable. The corresponding types of liability of juridical persons for the acts of corruption are associated with both internal (social and economic) and external (international legal) factors. The internal factors primarily stem from the economic processes of formation and development of the market-driven economy, where the role of an individual as an offender pales into significance, while a juridical person acts as a real beneficiary receiving pecuniary and other advantages from illegal operations. The external factors are associated with a considerable number of international treaties that contain provisions on liability of juridical persons, in particular, for committing corruption offenses. Such international treaties may be divided into two groups: 1. Treaties that regard juridical persons as committers of corruption offenses, which entail criminal, administrative, or civil liability. This group includes the UN Convention against Corruption 2003, UN Convention against Transnational Organized Crime 2000, and Criminal Law Convention on Corruption 1999. 310

§ 5. Liability of juridical persons for corruption-related offenses

Pursuant to such treaties, a decision on the application of a certain type of liability is made at the discretion of the national legislator. 2. International anti-corruption treaties that stipulate mandatory criminal liability of juridical persons. This group includes the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997. This Convention, which was previously deemed as providing for variations in terms of prescribing liability of juridical persons, is currently interpreted as stipulating solely criminal liability of juridical persons. Given the approaches to implementing the Convention provisions applied, only criminal liability of juridical persons is recognized as corresponding with the Convention and ensuring an efficient, commensurate, and deterrent impact on juridical persons, and the requirement to make bribery of foreign public officials a criminal offense for such persons is now imposed on all states being parties to the said Convention. Due to the fact that doctrinal and legislative approaches to defining the «juridical person» term differ from country to country, international treaties do not provide a definition of juridical person being a liable party (offense committer), and refer to national legislations. Furthermore, in determining corruption offenses, the national legislator is not restricted by the provisions of the corresponding international acts regarding liability of juridical persons in terms of prescribing liability for other (in this case – non-convention) offenses. They only specify a minimum (mandatory) list of corruption offenses, which entail liability of organizations considering the specific features of legal systems and obligations assumed under international treaties. International treaties contain the requirements for the application of efficient, commensurate (proportional), and deterrent (persuasive) penalties, including pecuniary sanctions, to juridical persons held liable for corruption offenses. Punishable acts of corruption committed by juridical persons are determined through the acts of natural persons. However, modern studies report that the conventional law development provides strong evidence of the fact that the imposition of personal criminal liability on a natural person is no longer perceived by the international 311

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community as an efficient method to combat corruption-related crimes1, and pursuant to international acts, a juridical person is recognized as a liable party, or an offense committer. The introduction of the concept of liability (including criminal liability) of juridical persons for corruption offenses into legislations of foreign states is intrinsically conditional upon the growth in the number and scale of such offenses (crimes) committed on behalf of juridical persons, or at their expense, or for their benefit (in their favor) by natural persons. Based on the prescribed types of liability of juridical persons, all states may be divided into two groups: 1) states, where liability of juridical persons for criminal or administrative offenses is provided; 2) states, where such offenses entail no liability of juridical persons, and only civil liability of judicial persons is imposed. The latter group included the Soviet Union, when the Soviet legal doctrine recognized neither criminal, nor administrative liability of judicial persons. The first group, in turn, may be divided into two subgroups: a) states, where juridical persons may be held both administratively and criminally liable; b) states, where juridical persons may only be held administratively liable for offenses, which currently include the Russian Federation. The states, where juridical persons may be held criminally liable, also comprise two subgroups. The first subgroup includes the states, where a juridical person is recognized as a liable party to the extent permitted by laws. These are common law countries, most countries of the Romano-Germanic legal family, including several former Soviet Republics (Lithuania, Moldova, Estonia). Certain authors suggest dividing the said countries further into two subgroups, with the first one to include those, where a juridical person is recognized as an offense committer (in particular, a crime committer), and a party subject to penalty, and the second subgroup to include the states, where a juridical person is not recognized as an

1

E.g., see: E.L. Sidorenko, A.D. Knyazev. International Legal Grounds for Criminal Liability of Juridical Persons // Mezhdunarodnoye Ugolovnoye Pravo and Mezhdunarodnaya Yustitsiya [International Criminal Law and International Justice]. 2014. No. 3. P. 16.

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offense committer, but is subject to criminal penalty1. Such division is sketchy, and is not based on any clearly defined criteria. For instance, in several countries, the notion of an offense committer is not applicable, while the notion of a party subject to liability (penalty) is used. In other states, the legislator presumes that an offense may only be committed by a natural person, and such offense is thereafter referred to a juridical person, for the benefit of which, for instance, it was committed. The second subgroup includes the states, where juridical persons may only be subject to other criminal law measures. In such states, only a natural person may be recognized as a committer of a corruption-related crime (act) , while a juridical person is recognized as a party subject to other criminal enforcement actions (criminal law measures). This small subgroup includes Azerbaijan, Latvia, Mexico, Peru, and Ukraine. Specifically, in Azerbaijan and Ukraine, juridical persons are subject to criminal law measures, rather than criminal penalties (sanctions), in Latvia – enforcement actions, in Mexico – protective measures2, and in Peru – indirect (additional) consequences. Therefore, in the first instance, a juridical person is simultaneously an offense committer, and a liable party. In the second instance, a juridical person may only be recognized as a party subject to liability as broadly defined. As part of each type of liability, there are some specific national features of its implementation in countries applying both different legal systems, and the same legal system. In foreign states, liability of juridical persons is often imposed for committing criminal acts (offenses) – crimes, minor offenses, and sometimes violations that are provided for not only by criminal codes, but also by other instruments3.

1

See, for example: Antonova E.Yu. Conceptual basis of corporate (collective) criminal liability. St. Petersburg, 2011. P. 37-38, etc.

2

E.g., pursuant to Art. 11 of the Federal Criminal Code of Mexico, juridical persons that were used as an instrument of crime may be subject to suspension of operations or liquidation, if the court finds it necessary to ensure safety.

3

For the notion of crime in the Russian Federation and abroad, see: N.F. Kuznetsova. Crime and Criminality. Moscow, 1969.

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In particular, the Criminal Code of France stipulates criminal liability for criminal acts – crimes, minor offenses, and violations, and the Criminal Code of Belgium prescribes criminal liability for three types of offenses: crimes that entail criminal penalties; offenses that entail correctional penalties, and police violations that entail police penalties1. Due regard should be given to this circumstance, as in Russian legal literature, all acts that entail criminal liability abroad, are traditionally called crimes. Therefore, for the purpose of a foreign legislation, the «crime» term is used in its broad sense as all criminal acts, and in its narrow sense to describe a certain type of criminal acts. Criminal liability of juridical persons should be interpreted in a similar fashion – in a broad and narrow sense. In terms of the narrow sense of criminal liability, which is typical for Russian criminal law studies, the application of other criminal law measures will not be covered by the criminal liability notion. In practice, depending on specific features of national legislations, under the same circumstances (wrongful acts committed by natural persons for the benefit of a juridical person), a juridical person may be recognized as a committer of a corruption offense subject to penalties in one country, and only a party subject to liability as broadly defined in another country. These are general approaches to the recognition of a juridical person a committer of acts of corruption (crime committer), and a liable party. These general approaches cover specific detailing (considering national features) of the matters related to determining criminal liability of juridical persons. In the Russian Federation, juridical persons are subject to administrative liability for committing corruption offenses, and the corresponding law enforcement practice is being shaped. According to the Prosecutor’s Office of the Russian Federation, under Art. 19.28 Unlawful Remuneration on Behalf of a Juridical Person of the RF CAO, 60 juridical persons were held administratively liable in 2012, 164 – in 20132, and 244 – in 2014. 1

See: Criminal Code of Belgium / Scientific editor, foreword by: N.I. Matsnev; translated from French by: G.I. Machkovsky. St. Petersburg, 2004.

2

RUB 334.7 mln of administrative fines were imposed on those 164 juridical persons, of which only 26.5% were recovered. See: Legality: State and Trends in 2010-2014. Activities of the Prosecutor’s Office to Ensure Legality: Scientific Report / General editor: O.S. Kapinus. Moscow, 2015. P. 360.

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Pursuant to the judicial statistics, under Art. 19.28 of the RF CAO, in 2011, administrative fines were imposed on 27 juridical persons in the total amount exceeding RUB 81 mln, and in 2012, 60 juridical persons were penalized in administrative proceedings in the total amount of RUB 69 mln1. In the opinion of certain scientists, administrative liability of juridical persons for corruption offenses provides an adequate counterbalance to the non-availability of criminal liability of juridical persons in the Russian Federation2. The said opinion is supported by many scientists and practitioners indicating that liability of juridical persons provided for by the legislation of the Russian Federation is consistent with the requirements of anti-corruption conventions, and no amendment to the criminal law is required. Based on several countries’ classifications of criminal offenses that are divided into crimes (Verbrechen) and torts (Vergehen) in Germany, for instance, and are differentiated based on the minimum penalty, it is admitted that torts of juridical persons are administrative violations in the Russian Federation, and administrative liability they entail is quite sufficient to ensure efficient regulation of relations in the field of combating corruption. However, there is an opinion that civil and administrative liability is insufficient to fully counterbalance the non-availability of criminal liability of juridical persons. In this connection, it is noted that, in terms of the civil law, it is the remedial (counterbalancing) function that mirrors its social essence to the fullest extent, while criminal law primarily performs the protective function, i.e. is aimed at protecting social relations3. «If the government institutes criminal liability of juridical persons, thus, it only improves the protective instruments for interests that have been long-standing and protected, though insufficiently. By recognizing juridical persons as committers of

1

See: Activities of Prosecutors on Holding Juridical Persons Liable for Corruption Offenses. P. 16.

2

E.g., see: V.I. Mikhailov. Is there a Need for Criminal Liability of Juridical Persons in the Russian Federation? // Criminal Law Impact on Juridical Persons: Proceedings of the Russian-German Criminal Law Seminar (June 26, 2012) / Managing editor: G.I. Bogush; scientific editor: U. Sieber, V.S. Komissarov. Moscow, 2013. P. 97-102.

3

E.g., see: U.S. Dzhekenbayev. Basic Principles of Criminal Law in the Republic of Kazakhstan (comparative comment on the book by J. Fletcher and A.V.Naumov Basic Concepts of Modern Criminal Law). Almaty: Zheti Zhargy, 2001. P. 222.

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certain crimes, the criminal law attaches special strength and significance to the protection of new economic relations»1. Administrative liability of juridical persons also has negative sides. In particular, corruption offenses committed by juridical persons are generally detected in the course of investigation into criminal cases initiated against natural persons that committed wrongful acts on behalf, or for the benefit of a juridical person, and investigating their acts as part of a single process would provide much higher efficiency. As practice shows, where liability of natural and juridical persons for interconnected acts is governed by different branches of law, evidence is collected in different cases, and therefore, such cases are separately considered by different judicial instances, finding the offenses committed by a juridical person and its guilt entails significant complexities. In light of the foregoing, several draft laws concerning the institution of criminal liability of juridical persons for committing offenses, including corruption offenses, in the Russian Federation were drawn up. For instance, the Investigative Committee of the Russian Federation developed a draft Federal Law On Introducing Amendments to Certain Legislative Acts of the Russian Federation due to the Institution of the Concept of Criminal Law Impact on Juridical Persons2. Draft Federal Law No. 750443-6 On Introducing Amendments to Certain Legislative Acts of the Russian Federation due to the Institution of the Concept of Criminal Liability of Juridical Persons was drawn up and submitted to the State Duma3. The said draft laws have not been broadly supported, and therefore, in addition to suggestions to improve the practice of holding juridical persons administratively liable, there appeared some considerations regarding the use of a new mechanism for 1

Ibid. P. 223.

2

The draft law is published on the official website of the Investigative Committee of the Russian Federation. See: G.K.Smirnov. Characterization of the Draft Law by the Investigative Committee of the Russian Federation on Criminal Liability of Juridical Persons in the Russian Federation // Criminal Law Impact on Juridical Persons: Proceedings of the Russian-German Criminal Law Seminar (June 26, 2012): Moscow, 2013. P. 110–119.

3

The draft law was submitted to the State Duma of the Federal Assembly of the Russian Federation on March 2, 2015 by the State Duma Deputy A.A.Remezkov, was registered under No. 750443-6 and published on the official website of the State Duma of the Federal Assembly of the Russian Federation.

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implementation of such liability contemplating the preservation of liability types (criminal – for natural persons, and administrative – for juridical persons) combined with the refusal of using different procedural models for holding natural and juridical persons liable, where they commit interconnected wrongful acts.1 The point is that it is suggested to include cases involving administrative liability of juridical persons for the acts of corruption with an objective aspect similar to the same of the corresponding crimes committed by natural persons in the criminal procedure, while maintaining the existing administrative liability of juridical persons for such offenses. In other words, it is suggested to ensure that a crime committed by a natural person, and a corruptionrelated administrative offense connected thereto and committed by a juridical person are investigated as part of one case, and that the verdict in such case the guilt or innocence of the accused, and penalties imposed on them (on the natural person – pursuant to the RF CC, and on the juridical person – based on the RF CAO), or their relief from punishment. At the current stage of formation of anti-corruption measures, making a decision on using criminal proceedings in cases involving corruption offenses committed by juridical persons is more realistic, than the institution of criminal liability of juridical persons, and moreover, it smoothly fits into the Russian legal system.

1

For details, see: A.V. Fedorov. Evaluating Efficiency of Liability of Juridical Persons as One Area of Partnership Between the Government and Business Community in Combating Corruption // Yuridichesky Mir [Legal World]. 2015. No. 12. P. 36–37.

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Chapter 6 COMPARATIVE LEGAL ANALYSIS OF TRENDS IN FOREIGN LEGISLATIONS IN THE ANTI-CORRUPTION SPHERE § 1. DEVELOPMENT TRENDS IN FOREIGN LEGISLATIONS

Combating corruption abroad is performed using various punitive and preventive methods. Punitive criminal law methods applied in all countries around the globe to fight various corruption manifestations remain relevant, which is evidenced by the recent legislative experience of foreign states. Preventing corrupt practices in public and private sectors, and shaping the anti-corruption culture in the society are equally important. Anti-corruption legislations worldwide are aimed at providing legal support to the performance of tasks, such as the prevention (primary and secondary) of acts of corruption, and imposition of penalties for corruption as a wrongful act (series of acts). Notwithstanding the fact that the aggregation of anti-corruption legislation is extremely large, and varies from one state to another, several common blocks of industrial anti-corruption acts may be distinguished: – criminal legislation (criminal code) comprising provisions with respect to liability of natural and juridical persons for active and passive bribery, bribery of foreign public officials, trading in influence, money laundering, etc., as well as certain criminal law acts issued in addition to codes (Australia, Germany, Italia, Canada, US, France, etc.) and independently (UK, Ireland). For instance, the British Bribery Act 2010 turned out to be completely innovative, especially in terms of criminal liability of juridical persons, and its requirements have been recognized stricter than those of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, as it does not provide for the statute of limitations for holding a person criminally liable, and does not contain any provisions regarding the immunity from criminal prosecution for either members of parliament, or judges, or prosecutors; 318

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– legislation that governs the private law area, which provides for sanctions for corruption offenses associated with audits, corporate ethics, etc. (Australia, Brazil, UK, Italy, Canada, Slovenia, US, RSA); – legislation that governs the interaction between public authorities and non-governmental institutions, in particular, lobbying; – legislation that governs public law matters, namely, the election law, public service, and conflicts of interests (Australia, UK, Georgia, Moldova, Republic of Korea, US, France, Czech Republic, etc.). Such laws often apply to not only public servants, but also to senior managers of state-owned companies. Specifically, pursuant to the Law of the French Republic on Transparency in Public Life dated October 11, 2013, chairmen and senior officials of public industrial and trade institutions must submit a declaration of conflicts of interests and property status that includes data on income and expenses for the reporting period to the High Authority for Transparency in Public Life. Such requirement also applies to joint-stock companies with a majority interest of owned by the government and local collectives. The new French draft law on transparency, fight against corruption, and modernization of the economy published on March 30, 2016 is designed to further strengthen anti-corruption efforts, and contemplates the arrangement of a special service to be in charge of preventing corruption and providing assistance in detecting the same; drawing up a register of lobbyists; protection and financing of informers, etc. Another block comprises the legislation on the fight against money laundering, which is also used successfully with respect to income from international and national corruption. The review of foreign legislations provides grounds for a conclusion that in recent years, not only common law states, but also states traditionally classified as civil law countries use the provisions of criminal, criminal procedure, and civil procedure laws to freeze, seize, and confiscate laundered proceeds of corruption. This primarily stems from the fact that many states amend their legislations in this field in order to unify the same to facilitate its further use. Furthermore, the formation of the European legislation has been and is still being impacted by the approach developed in the Anglo-American theory that has evidently influenced the wordings 319

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of standards enshrined in international conventions and treaties, especially in terms of using the concept of civil forfeiture. Conspicuous is the fact that several countries issued integrated instruments, by which the legislator attempts to provide the maximum coverage of public and private areas of state life: Italian Law on Prevention and Repression of Corruption and Illegality in the Public Administration 2012, and Law on Crimes Against the Public Administration, Mafia-Type Associations, and False Accounting 2015; Slovenian Integrity and Prevention of Corruption Act 2010; laws of EEU member states: Law of the Republic of Belarus dated July 15, 2015 No. 305-Z On the Fight against Corruption (hereinafter – the Belarusian Law on the Fight against Corruption), Law of the Republic of Kazakhstan dated November 18, 2015 No. 410-V ZRK On Combating Corruption (hereinafter – the Kazakhstan Law on Combating Corruption), etc. The legislation on the protection and reward of persons that provide information about facts of corruption holds a special place among anti-corruption instruments; in some countries it has already become solidly ingrained in the toolkit of measures aimed at preventing corruption (USA (Sarbanes–Oxley Act, Dodd–Frank Act), Romania, Republic of Korea), and in other countries such legislation has just started to form (Belarus, Kazakhstan). The analysis of major directions of the criminal policy in the field of combating corruption in certain countries allows distinguishing the principal development trends in legislations of such countries. First of all, we should note the established legal definition of the «acts of corruption» term, development of the list of such acts, and their differentiation in certain chapters (sections) of national criminal laws. By the Prevention and Combating of Corrupt Activities Act 2004, in one of BRICS countries – the Republic of South Africa – liability for corruption and other corruption-related crimes was made more severe. The Act contains a general definition of «corruption» as a crime, and further details the content of corrupt practices depending on the scope of persons and prohibited acts committed by: 1) certain persons (public servants; foreign public officials; agents; deputies of a legislative authority; employees of judicial and investigative authorities); 2) in connection with giving or taking an improper gratification; 3) in connection with certain issues (testimony and 320

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evidence in judicial proceedings; contracts; public procurement and tenders; auctions; sporting contests, games of chance; 4) in connection with a possible conflict of interests, and any other inacceptable activities (acquisition of a private interest in a contract, agreement, or investment of a public authority; witness intimidation; hindering the investigation of crime). In addition, the said Act includes a range of other provisional measures, including those related to the preservation of property that may potentially become subject to forfeiture. Furthermore, to impose certain restrictions, a register containing information about individuals and companies found guilty of corrupt practices associated with tenders and contracts was established and controlled by the RSA Ministry of Finance. Public officials are under criminal penalty obliged to report of any acts of corruption that fall, or may fall, under the Law 2004 to the police. Similarly to the anti-corruption legislation of other foreign countries, the RSA Law 2004 has extraterritorial effect. National legislations of the CIS member states generally do not contain a single definition of a corruption-related crime, and determine this notion by providing a comprehensive list of acts committed by an individual using his/her official position, and/or to derive benefits for himself/herself, or any third party. Legislators of one group of states attempt to define a «corruption related crime» directly within the criminal legislation (e.g., Kazakhstan). There is also a wider approach, pursuant to which any deliberate acts of public officials aimed at receiving and providing tangible values and any other advantages are recognized as corruption-related crimes (in particular, Kyrgyzstan). In criminal laws of certain CIS countries, the notion of a corruptionrelated crime is defined by grouping certain sets of elements of corruption offenses in separate chapters performed by the legislator based on the official crime elements (Azerbaijan, Moldova). Legislators of other states change their approaches to defining the «corruption-related crime» term in the context of criminal codes by specifying an exhaustive list of «corruption offenses» in the dedicated anti-corruption laws. An example is the Belarusian Law on the Fight against Corruption. Legislators of the CIS member states still pay close attention to the criminalization of new corruption-related criminal acts in keeping with recommendations of international anti-corruption standards. 321

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In elaborating such a complex range of problems, certain countries have already used the criminalization of promising and offering improper advantages as a completed set of elements of bribery. For instance, in the Criminal Code of Azerbaijan (Art. 311 Bribe-Taking (Passive Bribery), Art. 312 Bribe-Giving (Active Bribery), and the Criminal Code of Moldova (Art. 333 Bribe-Taking, Art. 334 BribeGiving), liability for offering any tangible benefits, or promising (assuring) the receipt of the same is, first, enshrined in dispositions of the corresponding criminal law provisions, and, second, is included in the notions of «bribe-taking» and «bribe-giving». In criminal legislations of other states, the potential criminalization of offering and promising a bribe is still at the stage of scientific discussions or draft laws, which possibly stems from difficulties in law enforcement practice. In terms of recommendations of the UN Convention against Corruption 2003 regarding illicit enrichment (Art. 20), the «pioneers» in recognizing illicit enrichment as a criminal offense are the Criminal Code of the Republic of Moldova dated April 18, 2002 No. 985-XV (Art. 3302 Illicit Enrichment), and the Criminal Code of the Kyrgyz Republic Dated October 1, 1997 No. 68 (Art. 308-1 Illicit Enrichment). However, the legislation of each of the said countries defines the aspects of such criminalization in a different way considering the national legal principles. It should be noted that modern international anti-corruption standards approve and recommend criminalizing acts committed by juridical persons. This concept has been introduced into criminal legislations of only two CIS member states. For instance, in Azerbaijan, the criminal law measures applied to juridical persons are provided in the General Part of the Criminal Code, and in terms of criminal law are interpreted as other criminal law measures. Another area of criminalization of the juridical persons liability concept is observed in the criminal legislation of Moldova, where juridical persons are recognized as crime committers along with natural persons, and the imposition of penalties on them has some specific features. A trend towards the modernization of the asset forfeiture concept is seen in criminal legislations of the CIS member states. In these countries, legislators use different approaches to the regulation of asset forfeiture a) as an additional type of penalty (Belarus, 322

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Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan); b) as a criminal law measure (Azerbaijan); c) as a security measure (Moldova); and d) as a criminal procedure measure (Kazakhstan, Uzbekistan). In certain CIS member states, innovated measures for combating corruption in public and private sectors are represented by establishing a public control institution to fight corruption by enshrining various forms of citizens’ participation in the anti-corruption activities (e.g., Art. 46 of the Belarusian Law on the Fight against Corruption). Therefore, foreign experience demonstrates the trend towards continuous development and supplementation of the anti-corruption legislation. Such process does not reduce to the adoption and improvement of criminal law provisions, and covers the regulation of both private and public law. Such a diversity in the legal regulation stems from understanding the impossibility of rooting out corruption solely by criminal prosecution, which explains the outspread of new methods abroad, including the extended confiscation mechanism. To prevent acts of corruption, eliminate the consequences of corruptionrelated crimes and crimes associated thereto, avoid the outspread of corruption, and hinder the emergence of sophisticated acts of corruption, it is required to provide legal groundwork for creating conditions for the prevention of corruption and related crime, and non-admission of repeated crimes, in particular, by enhancing the transparency of procedures, detecting conflicts of interests, and other methods. § 2. MECHANISMS EMPLOYED TO COMBAT CORRUPTION IN PUBLIC AND PRIVATE SPHERES IN FOREIGN COUNTRIES

It is evident that defeating corruption ingrained in the system of social, economic, and political institutions by detecting and punishing bribe-takers only is impossible. It is necessary to establish, introduce, and improve mechanisms and procedures that would contribute to the creation of conditions for self-purification of the said institutions, and this is the only way to make criminal prosecution methods an efficient additional component in the system of anti-corruption measures. Therefore, it seems important to consider the mechanisms employed to combat corruption in the public and private sectors in 323

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foreign countries that have been recognized the most efficient in the modern context. In the public sector, such mechanisms rightfully include: legislative forms and methods of resolving conflicts of interests, in particular, by introducing legal prohibitions and restrictions, for instance, with respect to cronyism and nepotism in the public service; establishing public control institutions that ensure transparency of information about income and expenses of political parties, private companies that receive state subsidies, and representatives of top government echelons for the public; defining ethical and moral prohibitions and requirements to be prescribed for the purpose of combating corruption; exercising control over expenses, and forfeiting property obtained as a result of corruption offenses to the state using confiscation mechanisms, and providing legislative regulation of the concept of lobbying. In the private sector, mechanisms of supervision over financial services are of particular interest in terms of introducing a riskoriented approach to detect and prevent laundering corrupt income, ensure reliability of financial statements, and compliance with fair business principles. Countering a conflict of interest in a situation where the personal interest of a public official may affect the decision-making process, and inflict damage on the interests of the state, society, or certain citizens, is an important requirement to enable efficient operations of public power institutions, and ensure public confidence in them. The evaluation of legislations on preventing conflicts of interests in the pubic sector conducted by GRECO in 2015 demonstrates that in many European states the legal regulation of matters related to such conflicts that may have a negative impact on individuals making important policy decisions (members of parliament, judges and prosecutors) is either too complex, or frequently amended, which undermines the stability and clarity of the statutory regulation. Concerned about this situation, GRECO’s president M. Mrchela called European states for establishing clear and stable rules regarding conflicts of interests for members of parliament, judges and prosecutors, indicating the need for showing a strong political will to eliminate the existing deficiencies. It should be noted that by the end of 2014, GRECO approved 24 evaluation reports on the prevention 324

§ 2. Mechanisms employed to combat corruption in public and private spheres...

of corruption, including in respect of members of parliament, judges and prosecutors. GRECO’s evaluations often contain indications of the lack of a comprehensive and single code of conduct for members of parliament, as well as adequate measures for resolving the issue of their «sensitivity» to excessive influence from third parties, including lobbyists, in a considerable number of countries. M. Mrchela also highlighted the importance of developing the parliamentarians’ asset declaration system, for instance, providing more accurate data, including information about spouses and family members, as well ensuring increased transparency of such data, and making them easy accessible to the public. However, it is obvious that the development and improvement of the asset and expense declaration system is not only relevant for parliamentarians and top-echelon public officials, which is evident from various legislative acts regarding the supervision over the public administration and public servants at different levels. Such supervision is one of the components capable of deterring a public servant from seduction to breach the law for his/her own benefit. In addition, public servants are normally obliged to submit a declaration of conflicts of interest, or the circumstances that may cause the same. The accuracy of information about conflicts of interests is controlled by specially authorized public officials or bodies (councils, commissions). These basic provisions are enshrined in legislations of most states. The review of the foreign statutory regulation in this field in recent years allows concluding that a single approach is lacking: in some countries the legislator elects to include such provisions into laws on transparency of public administration activities (e.g., in Spain, Italy, Lithuania, Slovenia, France), and in other countries the legislator issues dedicated legislative acts that govern the interests of members of parliament (Scotland), and public officials (Australia, Latvia, Czech Republic). In Serbia, for instance, such provision is contained in the Constitution 2006, and in CIS member-states – in special anti-corruption laws. Laws of such kind generally prescribe various restrictions – regarding secondary employment, receiving excessive honoraria for lectures, engagement in business activities upon termination of service, and external concurrent appointments. In such cases, laws 325

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normally stipulate an incompatibility rule, pursuant to which a public official must abandon his/her duties in the event that there is a threat of a conflict of interest. Furthermore, in certain countries, particularly, in Brazil, the regulation of matters related to family ties and cronyism is enshrined in the legislation, in particular, at the constitutional level. The original prohibition prescribed by the Constitution of Brazil 1988 (Art. 14) contemplated restrictions with respect to holding offices within the jurisdiction of the incumbent head of state for spouses and relatives (by blood or marriage, up to the second degree or by adoption) of individuals that hold top elective offices – the President of the Republic, Vice President, Governor of a state, territory, or federal district, or Mayors. By the Resolution of the Federal Supreme Court of Brazil dated August 21, 2008 (No. 13), which acts as a constitutional review body, the unconstitutionality of nepotism in three branches of power at the federal, state, and municipal levels was again affirmed. Furthermore, appointing a spouse, partner, or linear or collateral relative of the third degree inclusive at an office in a competent authority, or a juridical person to perform, directly or indirectly, public administration functions at the federal, state, federal district, or municipal levels contradicts the federal Constitution of Brazil. Engaging providers of outsourcing services, etc., if such services are provided by relatives of a corresponding public functionary, is prohibited. Decree of the President of Brazil dated June 4, 2010 No. 7.203 instituted a prohibition of nepotism in the public administration authorities, including relatives of the President of the Republic, Vice President, and the entire executive power block. This prohibition disallows the recruitment of relatives of public servants into the public service, as well as so-called cross-cronyism, where public servants hire relatives of each other; direct (without a bidding process) awarding of contracts with institutions or public administration authorities of a constituent entity of the Federation, administrative functions of which are performed by individuals, personally known to the customer. Equally relevant are mechanisms that enable transparency of the public service and include measures and methods aimed at strengthening integrity, activities of public authorities on manage326

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ment of public affairs, supervising the property of, and acceptance of gifts by, public officials, preventing and eliminating conflicts of interests, and resolving any other issues associated with combating corruption. It is the objective of strengthening integrity (Integritet) that was set, for instance, by the legislator in Slovenia in the Integrity and Prevention of Corruption Act 2010, which means the conduct and responsibility expected of individuals and organizations in the prevention and elimination of risks related to the use of any authority, office, mandate, or any other decision-making power contrary to the law, legally admissible objec1ves and codes of ethics. Pursuant to the said Act, a conflict of interests means circumstances, in which the private interest of a public official influences, or appears to influence the impartial and objective performance of his/her official duties. The «private interest of a public official» means a pecuniary or moral benefit, which is either to his/her advantage, or to the advantage of his/her family members, or other natural or juridical persons, with whom he/she maintains or has maintained personal, business, or political relations. The prevention and elimination of conflicts of interests is supervised by the Commission for the Prevention of Corruption, which is an independent government authority. The objective of the Spanish Transparency, Access to Public Information, and Good Governance Act 2013, issued after several major corruption scandals involving prominent politicians and members of the royal family occurred in Spain, is (according to its developers and supporters) to change the mentality in terms public administration, and establish public audit. Until recently, Spain was the only European country with the population size exceeding 1 mln people that had no such law in place, and its non-availability contributed to the bloom of corruption among politicians and public servants. Currently, all organizations that receive over EUR 100 thsd per annum in the form of state subsidies, and over 40% of income of which are received owing to the state support (political parties, trade unions, business entities, and private companies) must disclose the data that have not been published previously – about contracts, salaries of senior officials, management of grants, etc. As a result, a dedicated 24/7 web portal (Portal de la Transparencia), where any Spanish citizen may obtain information about income and expenses 327

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of political parties, private companies, and trade unions that receive state subsidies, as well as government members, other high-ranking public officials, judges, and even members of the royal family, was created in Spain. It should be noted that previously Spanish legal acts have never mentioned the general prohibition of conflicts of interest, and basic rules in this respect were contained in the corresponding regulations on the incompatibility of holding certain offices and any engagement in the private sector. In addition, there were no legislative provisions that would prohibit the voting of members of the Spanish Parliament – Cortes Generales – on matters that affect them personally, directly or indirectly. There were also no clear regulations with respect to receiving gifts in connection with holding a deputy’s seat. As regards the possibility of combining parliamentary activities and other engagements that may cause a conflict of interests by a deputy, the legislation prescribes that, pursuant to the incompatibility rules (Incompatibilidades), members of parliament are required to comply with the absolute dedication principle (en régimen de dedicación absoluta). However, in exceptional cases, they may have a limited engagement in supplementary activities, as provided by law. Supplementary activities incompatible with holding a deputy’s seat are governed by the Constitution of Spain and the Organic Law on Common Electoral Regime 1985. The Act 2013 (Section II) in focused on the ethical principles and rules that members of parliament, high-ranking public officials, and other local public servants must rely upon in their work, and simultaneously introduces a mechanism for imposing sanctions for the failure to comply with the same. Although the Act does not provide for the «conflict of interest» definition, one of the principles it stipulates is «to perform the activities in earnest and fully subject to the rules that govern the incompatibility and conflicts of interests». The accurate compliance with the Act is supervised by a newly established authority – the Council for Transparency and Good Governance (Consejo de Transparencia y Buen Gobierno), which, as an independent authority, is empowered to introduce the transparency culture into the public administration activities, to implement requirements for the active disclosure of information, 328

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and guarantees the right to have access to public information, and the compliance with the good governance provisions. The United Kingdom employs a different approach. Until recently, the country had no separate legislative act regarding conflicts of interest in the public sector, and the matters of registration and declaration of interests of parliamentarians, and resolution of conflicts of interests were governed by the Code of Conduct for members of the corresponding house of parliament. For instance, pursuant to the rules contained in the Code of Conduct for Members of the House of Commons, parliamentarians must notify the House of their property status and financial interests. Within one month following the election, they have to submit a declaration in the prescribed form (Registration and Declaration of Interests). This data is recorded in the Register, which subject to publication for public reference. While holding a deputy’s seat, a House member must report of any changes in his/her financial status within four weeks. The compliance with the prescribed rules is monitored by the Standards and Privileges Committee of the Parliament, the Independent Parliamentary Standards Authority established in 2009, and the Commissioner for Standards in Public Life. It should be noted that in recent years, several laws designed to contribute to the supervision of conflicts of interests were adopted – the House of Lords Reform Act 2014, the House of Lords (Expulsion and Suspension) Act dated March 3, 2015, as well as the Scottish laws on financial interests of members of the Scottish Parliament. If we refer to the Southeast Asian countries, it would certainly be interesting to consider the newest statutory regulation in the Republic of Korea aimed at combating corruption and resolving conflicts of interest. In this country, the essential component in countering conflicts of interest of Korean public servants, and restoring the public confidence in public institutions is the Improper Solicitation and Graft Act 2015 (effective from September 2016), which is to fill the gap in the statutory regulation, and cover the illegal actions related to little gifts and services based on family ties and regional influence that are not recognized as bribes under th criminal law. The new regulations apply not only to employees of public authorities at different levels and their spouses, but also to employees of public and private schools (from elementary to higher) and media companies 329

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subject to the Act on Press Arbitration and Remedies for Damage caused by Press Reports 2011. Such individuals are prohibited from any actions associated with trading in influence and acceptance of (consent to receive) any «financial or other advantage», which means «any financial interest, such as money, securities, real estate, goods, accommodation vouchers ,facilities memberships, admission tickets, discount coupons, complimentary tickets, tickets for entertainment, entitlements to use real estate, etc; offering of entertainment, such as food and drink, alcoholic beverages and golf, or conveniences, such as transportation and accommodation; and other tangible and intangible financial benefits, such as cancellation of debts, offering of employment opportunities, and grant of rights and interests. Receiving honoraria (in excess of the limit prescribed) for lectures or other activities beyond the official duties of the corresponding individuals is prohibited. Anti-corruption legislations of CIS member states also classify the prevention and resolution of conflicts of interests as corruption prevention mechanisms. For instance, in Kazakhstan and Turkmenistan, individuals holding important public offices and authorized to perform public functions, and equal-status persons, as well as entrepreneurs must take measures to minimize causes and conditions that contribute to committing corruption offenses by preventing and resolving conflicts of interests. A more detailed regulation of preventing and resolving conflicts of interests is available in Belarus, where a public official is obliged to notify his/ her superior in writing of a conflict of interests, or potential conflict of interests, as soon as he/she becomes aware of such conflict of interest, or abandon in writing the decision-making, participation in decision-making, or any other actions in discharge of his/her official (employment) duties that cause or may cause a conflict of interests. To forfeit property obtained as a result of corruption offenses to the state, confiscation mechanisms are used. Given that corruptionrelated crimes are committed to derive profit, or any other benefit, depriving criminals of such assets is the key aspect of termination of their illegal activities. Sometimes the legislator elects to adopt special instruments on the forfeiture of corrupt assets from public servants. A similar approach was used to shape the legislation of the Republic of Korea, where general provisions regarding the confiscation of 330

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criminal proceeds and their equivalents contained in the Criminal Code of the country, and the legislation concerning proceeds of crime (Act on Regulation and Punishment of Criminal Proceeds Concealment 2001), are supplemented by dedicated confiscation acts. They include, for instance, the Public Official Crime Confiscation Act 1995 that enabled detecting and confiscating proceeds of crimes committed by public officials, as well as any secondary proceeds derived from such assets. In 2008, upon accession to the UN Convention against Corruption, the Republic of Korean adopted the Act on Special Cases of Confiscation and Forfeiture of Assets Acquired through Corrupt Practices 2008 aimed at eliminating economic motivation for corruption. It defines the «act of corruption» (bribery, embezzlement, and criminal breach of fiduciary duty) and «proceeds of crime» terms. Under this Act, any and all proceeds of crime may be confiscated, and any assets transferred to a third party may also be forfeited if such third party knew of the crime at the time of their acquisition. Taking one step further than the Criminal Code, this Act broadens the scope of confiscation to cover within its purview secondary proceeds and assets transferred to a third party (e.g., by inheritance or gift) in the absence of a third party’s knowledge of the corruption offense committed, provided such transfer was made without consideration, or at a significantly lower price. In 2013, the Public Official Crime Confiscation Act, the so called Chun Doo-Hwan Act was enacted in the Republic of Korea to amend the previous legislation. The Act is named for the notorious President of Korea convicted of committing a great number of corruption-related crimes. In September 2013, Chun Jae-kook, the former president’s eldest son, held a press conference in front of the building of the Seoul Central District Prosecutor’s Office, during which he read out the list of assets of the Chun family offered to the government in payment of the fines imposed on his father, Chun Doo-Hwan, based on the Ruling of the Supreme Court of Korea 1997, which held that the former president must pay 220.5 billion won as a fine for corruption, bribery, and other crimes committed. These fines have not been paid in full, and as of September 2013, the unpaid fines amounted to 167.2 billion won (154 million US dollars). As the statute of limitations for the recovery of assets was to expire in October 331

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2013, on June 2013, the National Assembly of the Republic of Korea adopted the Chun Doo-Hwan Act to extend the statute of limitations (until 2020), which enabled further prosecution of the Chun family. However, corrupt income is most commonly taken based on more general acts regarding the confiscation of proceeds of crime. Finding, seizing, and confiscating proceeds of corruption-related crimes may be implemented in both criminal and civil proceedings. In addition to conventions, in Europe, the development of the criminal proceeds’ freezing, seizure, and confiscation concept is largely impacted by EU Framework Decisions adopted in 2001–2006. The recent Directive on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime in the European Union adopted on April 3, 2014 provides for a broad definition of proceeds of crime to include any direct proceeds from criminal activity and all indirect benefits, including subsequent reinvestment or transformation of direct proceeds. Thus, proceeds may include any property, including that, which has been transformed or converted, fully or in part, into other property, and that, which has been intermingled with property acquired from legitimate sources (property that may be subject to freezing and confiscation includes legal documents or instruments evidencing title, financial instruments, or documents that may give rise to creditor claims, etc.). Where confiscation is not possible for a number of reasons, at least where such impossibility is the result of illness or absconding of the suspected or accused person, pursuant to Framework Decision 2014/42, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offense, which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial. It should be noted that the said Framework Decision puts a special emphasis on the extended confiscation concept that contemplates the confiscation not only of property associated with a specific crime, but also of additional property, which the court determines constitutes the proceeds of other crimes. Pursuant to this Decision, Member States shall adopt the necessary measures to enable the confiscation, 332

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either in whole or in part, of property belonging to a person convicted of a criminal offense, which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct. For the purpose of this Framework Decision, a criminal offense shall primarily mean active and passive corruption in the private sector, bribery of officials of EU institutions, etc. The notions of «extended confiscation» applied in various national jurisdictions are divergent. Previously, the Framework Decision 2005 provided for three different sets of requirements for this type of confiscation; however, the Framework Decision 2014 contains a requirement to further harmonize the provisions on extended confiscation in the legislation of EU member states by setting a single minimum standard to eliminate legal differences for the purpose of cross-border cooperation. In legislations of certain European countries, the extended confiscation concept, where the burden of proving the legality of acquired property is on the accused person and third parties (property of which is supposed to have a criminal origin), has been employed for quite a long time, and, according to foreign lawyers, is an efficient tool to fight organized crime, which has been successfully tested in the Constitutional Court of Italy and the European Court of Human Rights, as this type of confiscation infringes neither the right of ownership, nor the presumption of innocence, nor the right to a fair trial. After the Framework Decision 2001 was issued, there started an active introduction of the extended confiscation concept into criminal legislations of European countries – Sweden, Finland, Croatia, Macedonia, Montenegro, Moldova, Romania, Estonia, etc. In the UK, general confiscation provisions are grouped in the Proceeds of Crime Act 2002, which was amended by the Serious Crime Act 2015 to include the provisions aimed at a further tightening of specific confiscation mechanisms. The reform primarily affected: restraint orders (court orders to freeze, temporary seize, and manage illegal assets); assets owned by a person, whose property is proposed to 333

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be confiscated; specification of third party rights to such assets; time limits for payment of amounts available for confiscation; tightening the rules for replacing the unpaid amounts with imprisonment in pursuance of the confiscation order, etc. The amendments introduced appear to be very important. For instance, corrupt assets that may be subject to confiscation, for the purpose of their further preservation, and where a responsible person is not available, may be transferred from the bank account of the accused directly into court – until now, such measure was only applied in the event of expiry of the time limit for payment. One innovation is the reduced time limit for payment of the amount subject to confiscation (6 month maximum instead of 12), and the extended terms of imprisonment for the failure to comply with the order. If previously, pursuant to the Powers of Criminal Courts (Sentencing) Act 2000, the failure to pay an amount below GBP 1 mln entailed 5 years of imprisonment, in accordance with the amendments adopted, this term has been extended to 7 years, and if such amount exceeds GBP 1 mln – to 14 years (previously the maximum term was 10 years). If the unpaid amount exceeds GBP 10 mln, pursuant to the new regulations, the convict is deprived of his/her right to parole after having served one half of the term of imprisonment. In Romania, the extended confiscation (confiscarea extinsă) introduced in 2012 is a safety measure used to confiscate illegal property from persons that committed criminal offenses of certain categories, where such persons are unable to explain the origin of their assets. In particular, the extended confiscation may be applied for money laundering; corruption offenses; offenses similar to corruption offenses; offenses associated with corruption offenses; offenses against the financial interests of the EU. Where the extended confiscation provisions are applied, the value of assets transferred by a convict or a third party to a family member, persons, with which the convict has relations similar to marital or parental relations, if they reside together with the convict, or to a legal entity the convict controls, shall also be taken into account. To make a distinction between legal income and the value of acquired assets, the value of assets as of the time of their acquisition, and the expenses borne by the convict, shall be considered. 334

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In Moldova, the extended confiscation also introduced into the criminal law in 2012, applies to unfound property, or contemplates the non-repayable seizure of money in the amount sufficient to cover the value of unfound property, or property attached to legally acquired property, and equally includes the confiscation of property and money derived from using the property subject to confiscation, including property, income, or benefits transformed in the course of criminal practices. The Criminal Code of Estonia specifies grounds for the application of extended confiscation of assets acquired through a criminal offense, if the legal nature of the criminal offense committed, the difference between the legal income and the standard of living of the person, or another fact gives reason to presume that the person has acquired the assets through the commission of a criminal offense. The court is entitled to apply extended confiscation to income and assets of a third party, where such income was gained at the expense of the offender, or such assets were acquired at a price below the market price; or the third party consciously knew that such assets and income were transferred to him/her in order to avoid confiscation. Certain transformation of the traditional criminal confiscation concept also stems from the outspread of civil forfeiture in order to deprive offenders of any illegal proceeds and benefits. In practice, some shift in emphasis from the confiscation due to criminal prosecution to the so-called confiscation in rem, i.e. the confiscation that may be performed independently from, or in parallel to, criminal proceedings, takes place. In many countries, irrespective of their legal traditions, the civil forfeiture of assets has been a recognized efficient tool to combat corruption for a long time. This mechanism is effectively used to return stolen state assets and corrupt income siphoned off abroad. For instance, in November 2015, the US returned to the Republic of Korea USD 1,130,000 that were unlawfully appropriated by the former dictator , Chun Doo-Hwan, seized in the civil forfeiture procedure in the US territory from his family members. The legalization and regulation of lobbying as a mechanism for combating corruption are also noteworthy. The opinion that lobbying is associated with corruption is still widespread in various countries; for instance, in India lobbying activities are directly equated to one 335

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form of corruption. At the same time, in the US (the pioneer in the legal regulation of lobbying activities), the Federal Regulation of Lobbying Act 1964 (the Act remains effective, though it has been amended) states: «The provisions of this Act shall not apply to the facts or activities provided for by the Federal Corrupt Practices Act, and shall not be interpreted as abrogating any provision of the Federal Corrupt Practices Act». Therefore, in the US, the fundamental distinction between legal lobbying and corruption is legislatively stated. In other countries, where the legislation concerning lobbying is available, the fundamental distinction between lobbying as such and corruption is not specified directly, but is presumed. The fact that some of lobbyists may use immoral and illegal methods in their activities is a different story. Furthermore, there is a chance that they will be punished for that, which happens occasionally in the countries, where the lobbyism is legal, and is being actively developed. However, it does not mean that all legal lobbying-related professional activities are wrongful. Similarly, if a certain entrepreneur uses fraudulent schemes and illegally increases his profit, it does not mean that after such wrongful activities have been revealed, and the offender has been convicted, any entrepreneurship will be regarded as unlawful activities. In fact, the legalization and legal regulation of lobbying are aimed right at avoiding any wrongful acts, and the lobbyism itself is natural insofar as is the existence of the structured society and different interests of different social groups. Public and open lobbying established within the limits of legislation (referring to the lobbying system as a whole, rather than any and all contacts and meetings, some of which may be confidential) that involves representatives of various interests, creates anticorruption conditions for the operation of state authorities and local self-government authorities. And this is the issue of state concern and national security bothering the popular majority almost in any country, including Russia. The open pluralistic lobbyism helps combating corruption, as it enables paying due regard to various interests in the course of interaction of public authorities and civic institutions, obtain additional information on the state of affairs, and consider any given matter from different aspects before making a final decision. This is possible subject to more or less neutral attitude 336

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of those being lobbied to those lobbying. However, if a decisionmaker has close relations with only one lobbying organization, finds himself/herself and acts as its representative, the relations between the person being lobbied and the lobbyist are corrupt to a large extent. This is why in most countries, where lobbying is legal, irrespective of using the «lobbyism», «lobbying», and «lobbyist» terms in the legislation (US, Canada, UK, Germany, Peru, Poland, etc.), on the one hand, the registration of representatives of group interests and their periodic reporting are provided for, and on the other hand, the restrictions for public officials with respect to receiving gifts, or any other benefits, engaging in any given activities, and holding any offices (even honorary) in non-government organizations are set. In this context, the transparency of representing certain group interests by lobbyists is essential. The Lobbying Disclosure Act was adopted in the US in 1995 just for this purpose. The effective UK Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 contains provisions regarding the registration, transparency, etc. This Act uses the «lobbying» and «consultant lobbyist» terms for the first time in the UK. The said terms have never been used in the legislation before, though the interest representation was regulated to some extent, and the «lobbying» term itself appeared in the UK also, though it was not employed in official documents. Article 1 of this Act prohibits everyone, but registered consultant lobbyists, from lobbying activities. The Act contains quite detailed requirements for the registration as a consultant lobbyist or lobbying consultant, while applying both terms as equivalents. It is noteworthy that the Slovenian Integrity and Prevention of Corruption Act 2010 originally links legal lobbying (lobiranje) to the prevention of corruption, and therefore, contains Section VIII, which is entitled precisely «Lobbying». This Section provides for the registration of lobbyists and periodic reporting on their activities. There is another problem that requires comprehension. Corruption may be found in the selectivity of lobbyists’ access to public authorities and public officials. Lobbyists may provide the «right information» that represents only one interest group, or a limited range of such groups. In such case, the information (not referring to knowingly false information) received by a public official 337

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will be biased, while the decision to be made will affect the general public having various interests. And where public authorities are accessible to almost everyone, and lobbying is performed by various groups, representatives of public authorities receive comprehensive information that enables them to shape an integral view of the situation. This requires clear regulations for lobbying, and lobbyists themselves must have the necessary skills and abilities. Legislations of many countries (Canada, UK, US, Poland, Slovenia, etc.) provide for equal access to public authorities and public officials for lobbyists, and the transparent registration procedure enables interest groups to have their own lobbyists. According to the Danish academician O. Hasselbalch, the problem is that, given the nonavailability of the legislation that governs lobbying in Denmark, a situation may arise, where no lobbyists, or only certain lobbyists are admitted to public authorities and public officials, resulting from which the information received by public authorities is incomplete and biased, and decisions made based on such information are ineffective and possibly even harmful, which will undermine the normal operation of public authorities, and destabilize the entire political system of the country. The prevention of corruption in the private sector primarily stems from the adoption of codes of professional or corporate conduct, encouragement of best business practices for relations between business entities, facilitation of transparency in the private sector, including measures aimed at the identification of real individuals standing behind juridical persons. Internal audit control mechanisms are the priority in terms of prevention and detection of acts of corruption. In the US, the bankruptcy of major companies Enron and WorldCom due to unfair management caused a scandal that had a significant impact on the development of such mechanisms. As a result, the US adopted the Sarbanes–Oxley Act in 2002, which substantially tightened the requirements to financial statements – to the process of their preparation. At present, this Act is recognized the most prominent federal legislative act aimed at ensuring reliability of financial statements over the last 60 years. The Sarbanes–Oxley Act applies to all issuers, i.e. all companies (including foreign companies), the securities of which are registered with the US Securities and 338

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Exchange Commission. It strictly regulates the preparation and audit of financial statements of issuers with respect to the requirements of complete financial transparency, and prescribes direct liability (including criminal liability) of the issuer’s management for ensuring reliability of financial statements, and introduces the Code of Ethics designed to combat abuses, and promote certain fair business principles (Art. 906). This entails criminal liability in the form of a fine amounting to from USD 1 mln to USD 5 mln, and imprisonment for a term of 10 to 20 years. Adopting the so called clean companies legislation has been a major achievement in combating corruption in the private sector over the recent years. In August 2013, the Brazilian Parliament adopted the Clean Company Act (effective from January 2014), which instituted administrative (quasi-criminal) liability of juridical persons for the first time in the country. Pursuant to this Act, companies caught in the bribery of public servants are subject to a fine amounting to from 0.1% to 20% of the company’s gross revenue, and are obliged to compensate for damages caused. Moreover, the fine may not be less than the benefit derived, if computable. Operations of a company found guilty of corruption are suspended, its assets are subject to confiscation, and the company is included the National Registry of Corrupt Companies. Another important private sector area that requires special protection from corrupt influence is the banking and financial operations that must be governed by clear regulations for doing business, accounting, and reporting. For European states, the guiding principles in this field are specified in Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing. In the UK, the largest European financial center, in addition to the Proceeds of Crime Act 2002 that grants the law enforcement agencies and treasury a broad range of powers (including freezing, seizure, and confiscation of funds) to efficiently investigate the cases of money laundering, the secondary regulation in this field is provided by the Money Laundering Regulations 2007 issued by the UK Treasury and developed based on the said Directive. The UK Regulations 2007 provide for various steps to be taken by the financial services sector and other persons to detect and prevent 339

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money laundering and terrorist financing. The Regulations are of great importance not only due to the fact that they define the range of persons obliged to detect illegal transactions, but also considering that they stipulate civil and criminal liability for the failure to comply with the prescribed instructions. The Regulations are based on the risk-oriented approach principle, and apply to persons engaged in certain entrepreneurial activities in the United Kingdom. These are credit institutions; financial institutions; auditors, insolvency practitioners, external accountants and tax advisers; independent legal professionals; trust or company service providers; estate agents; high value dealers (trading in goods valued at EUR 15,000 minimum), and casinos (Art. 3). Pursuant to the Regulations, a relevant person must rely upon the Know Your Customer principle, and apply due diligence measures in all cases – when he/she establishes a business relationship; carries out an occasional transaction; suspects money laundering or terrorist financing; doubts the veracity or adequacy of documents, data or information previously obtained for the purposes of identification or verification. Furthermore, a relevant person must verify the identity of the customer (and any beneficial owner) before the establishment of a business relationship or the carrying out of an occasional transaction, whenever possible. Where, in relation to any customer, a relevant person is unable to apply customer due diligence measures, he/she must not carry out a transaction with or for the customer through a bank account; must not establish a business relationship or carry out an occasional transaction with the customer; must terminate any existing business relationship with the customer; and must consider whether he/ she is required to make a disclosure by Part 7 of the Proceeds of Crime Act 2002 or Part 3 of the Terrorism Act 2000. The Regulations 2007 prohibit credit institutions from entering into, or continuing, a correspondent banking relationship with a shell bank, as well as with a bank, which is known to permit its accounts to be used by a shell bank. A credit or financial institution carrying on business in the United Kingdom must not set up an anonymous account or an anonymous passbook for any new or existing customer. Similar regulations issued on the basis of Directive 2005/60 are also effective in other European countries. For instance, Italy has 340

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over 25 years of legislative experience in fighting money laundering, though it is neither a major regional, nor an offshore financial center. Money laundering in Italy primarily stems from the outspread of mafia-type organized crime groups and foreign crime organizations associated with drug trafficking. Money laundering takes place in both the regulated banking sector and the non-bank credit and financial system (which occurs much more often) – in casinos, through money transfers, and in the gold market. Persons that launder money mainly use non-bank financial institutions for illegal export of foreign currency, and offshore companies. In conclusion, it should be noted that, notwithstanding the individual approach to the functioning of anti-corruption mechanisms in the public and private sectors of foreign countries, the newest regulatory legal acts in this field are aimed at countering threats to the external and internal economic security, in which the proper operation of the government machinery combined with the secured confidence of the civil society and business community in the same play a special role. At the same time, the review of recent laws governing the control over expenses, and forfeiture of property obtained as a result of corruption offenses to the state in certain foreign countries gives evidence of the obvious strengthening and extended application of confiscation as an efficient anti-corruption mechanism. § 3. LIABILITY FOR ACTS OF CORRUPTION PROVIDED FOR BY FOREIGN LEGISLATIONS

The application of various types of liability (civil, administrative, and criminal) for the acts of corruption is one of the most important resources employed to combat this negative phenomenon in foreign states. The first type of liability (civil) provided for by the Civil Law Convention on Corruption 2003, in the form of special anti-corruption provisions, has not been introduced in the civil legislation that deep, as have been the administrative and criminal liability provisions. Civil mechanisms are most commonly provided for by the anti-corruption and other legislations, rather than the civil legislation. For instance, Slovenia included the Convention’s requirement for the mandatory anti-corruption undertaking in its Integrity and Prevention of 341

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Corruption Act 2010. The Norwegian Damage Compensation Act 1969 also provides for liability of persons that inflicted damage by their acts of corruption. The forfeiture of corrupt income to the state treasury is frequently performed abroad in civil proceedings (Australia, UK, Slovenia, US, Canada). Administrative liability for committing acts of corruption has a much wider application in foreign states with respect to both natural and juridical persons, and the corresponding provisions can also be seen in the anti-corruption legislation, conflicts of interests laws, and codes of administrative offenses. An important step, e.g. for Italy, was the enactment of Legislative Decree dated November 21, 2007 No. 231 on the implementation of Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, as well as Directive 2006/70/EC. This legislative act as the baseline document in the field of fighting money laundering emphasizes gaining «an insight into the customer», i.e. the procedure designed for customer evaluation as an indispensable factor to efficiently fight money laundering and illicit assets. The customer due diligence is deemed the most important preventive measure aimed at combating money laundering. Legislative Decree No. 231/2007 amended Legislative Decree No. 231/2001 on administrative liability of juridical persons, companies and associations, which instituted liability of companies in Italy for fraud of their employees, and for other offenses, e.g., for receiving and using money, goods or assets of unlawful origin. This implied that every company, bank, insurance company, small enterprise, and association must take the corresponding measures to prevent committing such offenses by their employees. The Spanish Transparency, Access to Public Information, and Good Governance Act 2013 prescribes the system of disciplinary and administrative penalties within three areas of liability: 1) for offenses associated with conflicts of interests; 2) for offenses committed in the course of economic governance and managing public funds; and 3) for disciplinary offenses. Committing repeated offenses entails sanctions, such as dismissal from the public office held, obligation to repay the amounts received in excess, and obligation to compensate for the treasury expenses. Similar sanctions were previously introduced by the Law dated April 10, 2006 regulating 342

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conflicts of interests among members of the government and senior civil servants in the General State Administration, which instituted the incompatibility regime and liability for violating the same. Furthermore, persons that committed serious offenses in the public service may be subject to a prohibition to hold certain public offices for a period of 5 to 10 years. As for criminal liability for corruption, it exists in all countries, and the list of prohibited acts of corruption is occasionally supplemented as new corruption threats and risks appear. It is evident from the enactment of new laws on combating bribery (UK), fighting money laundering (Australia, Canada, Korea), or amendment of criminal codes by adding new elements of crimes (Italy, Kazakhstan, Moldova, Slovenia). Some new sets of elements of corruption-related crimes stand out. These are trading in influence (Armenia, Georgia, Italy, Moldova, Estonia), illicit enrichment (Moldova, Kyrgyzstan), failure to declare income (Georgia, Moldova), violation of public procurement rules (Georgia, Kyrgyzstan, Estonia), oath-breaking by a public servant (Turkmenistan), self-laundering (Italy), illegal gratification (Armenia, Belarus, Kyrgyzstan, Moldova), etc. The individualization of punishment for persons that committed acts of corruption has some specific features in legislations of Russia’s neighboring countries. Pursuant to novels in the Criminal Code of Kazakhstan, persons that committed corruption-related crimes, are mandatorily subject to a life prohibition to hold offices in the public service and in state-owned companies with the government’s interest exceeding 50%. Furthermore, the provisions regarding probation, release from criminal liability due to conciliation of parties, bail, and expiry of the statute of limitations do not apply to such persons. Persons that committed corruption-related crimes are deprived of their state awards, special, military, honorary, or other titles. Pursuant to the Criminal Code of Estonia, bribery, trading in influence, committing an economic criminal offense, or a criminal offense against public trust mandatorily imply the prohibition to engage in entrepreneurial activities for a period of 1 to 5 years as an additional punishment. Extraterritorial provisions regarding prosecution for committing acts of corruption have been introduced into criminal legislations of Azerbaijan, Georgia, and Estonia. 343

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The number of states, where criminal liability for offenses committed by companies is instituted, constantly increases. Various international conventions provide for the imposition of liability for the whole range of known corruption offenses on juridical persons. In our opinion, introducing such provisions into criminal codes stems from the high degree of hazard of crimes committed by corporations that possess large corporate resources – financial, institutional, and legal– in the course of their operations. Various states use different mechanisms to hold juridical persons criminally liable; however, such provisions are most commonly included into criminal codes. A similar approach is observed in almost every case, even where such measures do not represent criminal penalties under the law, and are classified as «other legal consequences f committing a crime» (Sweden), «enforcement actions applied to juridical persons» (Azerbaijan, Latvia), corporate (France) or administrative fines (Argentina). Another mechanism for introducing the concept of criminal liability of juridical persons is adopting dedicated acts regarding criminal liability of juridical persons in the states traditionally classified as civil law countries – Act of the Republic of Croatia on Liability of Juridical Persons for Criminal Offenses 2003, Act of the Republic of Slovenia on Liability of Juridical Persons for Criminal Offenses 2005, and Act of the Czech Republic on Criminal Liability of Juridical Persons and Proceedings Against Them 2012. These acts have some common features: they determine major characteristics of criminal liability of juridical person; list the elements of crimes, for which juridical persons are liable; provide for similar penalties that may be applied against juridical persons; contain references to criminal, criminal procedure, and penal laws, pursuant to which criminal cases involving offenses committed by juridical persons are generally investigated and considered, and operate alongside them. Types of sanctions for juridical persons provided for by industrial legislations of various states (administrative, tax, criminal) are of particular interest. The most common financial measure applied against juridical persons for corruption-related violations is a fine. The remaining sanctions are deemed non-financial, though all of them eventually have a financial or economic impact on juridical persons. These include: 344

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– Excluding companies from the list of state funding recipients for various periods (Croatia, Slovenia, Spain, Czech Republic); – Deprivation of the right to be a party to government contracts, for instance, an immediate prohibition to file applications for public procurement contracts (Georgia, Poland, Czech Republic, etc.); – Including a juridical person in the publicly available register of juridical persons that committed corruption offenses (Germany, Italy, Lithuania, US, etc.); – Deprivation of export privileges (US); – Prohibition on operations (almost every country); – Prohibition on disposal of securities (Slovenia); – Corporate monitoring (frequently used by the US Ministry of Justice) may be part of the plea agreement and lead to the appointment of an independent corporate observer being a third party and not necessarily a judicial representative, who evaluates and supervises the company’s compliance with requirements of the agreement developed to mitigate the risk of repeated commitment of wrongful acts by the company. The company, in turn, must provide such observer with all information for examination and evaluation of the internal policy, practices, and procedures applied by the company. Establishing such supervision does not eliminate the application of financial sanctions against the company; – Liquidation of a juridical person as an exceptional measure (Azerbaijan, Georgia, Lithuania, Moldova, Slovenia), though certain jurisdictions (Germany) do not provide for liquidation, as it has farreaching consequences of social, employment, and economic nature; – Publication of a court judgment (which is performed at the expense of the corresponding juridical person in many countries) or sentence in mass media, on TV, on the Internet – this is a preventive measure pursuing the same objective, as does the public registration of convictions of juridical persons (UK, Lithuania, Moldova, Slovenia, Serbia, France, etc.); – Probation (or conditional sentence), imposing which the court may demand the convict to further act in accordance with the conditions specified in the probation order (UK, Moldova, Canada). Pursuant to legislations of the US and UK, certain actions of a corporate offender may mitigate the sentence, or even secure it against liability and sanctions based on a deferred prosecution 345

Chapter 6.

Comparative legal analysis of trends in foreign legislations...

agreement. Such agreement is executed in writing between the law enforcement agencies and the potential cooperative company. While in the US such practice has been employed for a long time, in the UK, it was instituted by the Crime and Courts Act 2013. The Deferred Prosecution Agreements (DPA) Code of Practice developed jointly with the Crown Prosecution Service is published on the website of the Serious Fraud Office (SFO). The Code governs the matters associated with the DPA procedure that enables a company charged with a criminal offense (fraud, bribery, and other economic and corruption offenses) to enter into an agreement with the prosecutor for automatic suspension of criminal prosecution. Furthermore, the DPA procedure may be initiated by both the company and the prosecutor. In such case, the company undertakes to meet a range of conditions that may include the payment of a fine and compensation, as well as cooperation in future prosecution of natural persons being employees linked with such offenses. The failure to meet the conditions specified entails the resumption of criminal prosecution. This new procedure only applies to juridical persons, and grounds for entering into such agreement include the expediency of preservation of company’s operations, and public interest availability. The DPA application process provides for absolute transparence, and is supervised by the court. It is the court that eventually determines whether the said procedure is suitable in a specific situation, and whether the terms and conditions of the agreement are fair, reasonable, and proportionate. In the UK, the first deferred prosecution agreement for three years entered into between the Serious Fraud Office and ICBC Standard Bank was approved by the High Court in November 30, 2015. Pursuant to the court judgment, Standard Bank must pay to the Government of Tanzania a compensation of USD 6 mln, interest of USD 1,046,196, and penalty of USD 8,400,000, as well as reimburse the expenses of USD 330 thsd incurred by the Serious Fraud Office. Legislators also use another approach, for instance, the Czech Act 2012 that contains provisions regarding the «active repentance of a juridical person» (Òþinná lítost) does not provide for their application to corruption-related crimes – pursuant to Art. 11 of the Act, a juridical person shall not be released from criminal liability if charged 346

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with passive or active bribery, or trading in influence (Art. 331–333 of the Criminal Code of the Czech Republic). To summarize the review of foreign experience of providing legislative support to combating corruption, preventing and coping with acts of corruption, it should be noted that the efficiency of the fight against corruption largely depends on the uniformity of approaches to this negative phenomenon, similarity of anti-corruption measures, including grounds for holding liable and penalties, and harmony of the legislation (unless its uniformity is attained). In such case, an offender from one country will be unable to hide in another state, and the inevitability of punishment serves as one condition of the successful fight against crime. A considerable part of corruption-related crimes (at least, in terms of funds) and crimes associated therewith, such as money legalization (laundering), human trafficking, etc., became transboundary in the modern context. Therefore, many countries (Australia, Azerbaijan, UK, Georgia, Canada, China, US, Estonia) declared universal jurisdiction with respect to corruption-related crimes, which contemplates the right of competent authorities to held persons liable for the corresponding acts irrespective of the place, where such acts were committed. For Russia, such experience of statutory regulation in the field of combating corruption is of interest, as it enables finding solutions to the existing problems.

CONCLUSION Based on the analysis performed, it may be stated that in Russia, there is a consensus, a clear understanding of the fact that corruption is a social disease having a negative impact not only on the country’s image, but also on daily life of its citizens. Countering this disease is the objective of not only dedicated authorities, but also the society as a whole, and each person individually; therefore, combating corruption has transformed from the set of isolated measures to fight against «bad public officials» into one of the most important areas of the national policy, and becomes systemic. The essential elements of this system are as follows: – National Anti-Corruption Strategy at the federal level, as well as anti-corruption strategies and plans implemented at all levels of public power. They determine the key methods to combat corruption based on the international experience and considering the specific features of Russia’s development, and long-term challenges it faces; – Detailed anti-corruption regulation, the provisions of which are not only included in the criminal, administrative, and financial legislative instruments, but also determine the dynamics in development of all major legal regulation areas. The regulatory framework of combating corruption becomes the foundation that underpins the activities of state and municipal authorities, their public officials, and social institutions, which makes the fight against corruption stable and focused; –Institutional mechanism for combating corruption, a system of dedicated institutions directly engaged in the anti-corruption activities meeting both the global trends and the internal needs of the state at this stage; – Set of legal means and methods to prevent the outspread of corruption. Two trends are distinguished in the development of this set: on the one hand, the range of legal means employed is constantly expanded through monitoring the implementation of anti-corruption measures; on the other hand, finding balance between the stability and flexibility of anti-corruption measures is a constant requirement, 348

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which allows reducing the overall level of corruption in the state, neutralize its impact on the economy, government structures, and system of social protection of the population; – Development of new methods and techniques to detect and analyze corruption manifestations stemming from the emergence of new forms and «institutions» of corruption, where focusing solely on traditional forms of acts of corruption only «narrows down the real picture of life and liability of each citizen for aiding and abetting, or participating in the acts of corruption»1, and does not secure the effectiveness of anti-corruption measures; –Scientific studies of problems associated with combating corruption. In the course of such studies, it is of paramount importance to not only analyze the current situation, but also suggest the most efficient model to combat corruption based on the systemic and gnosiological approach. Making such analysis constructive requires the historical data on combating corruption, and understanding of long-term changes, and problems caused by the rigidity of institutions established at earlier stages. The problem of interaction between the hierarchic and horizontal systems of combating corruption in law enforcement practice is of equal academic interest. Major parameters of such interaction are set at the federal level; however, the system’s potential also depends on self-regulation mechanisms that are based on the feedback (constituent entity of the Federation – Federation). This is not an individual question, as its resolution is of importance to the process of combating corruption as a whole. Building anticorruption models of horizontal systems managed both from the inside and the outside, and optimal support of their operation is one of effective public administration methods. Another part of the study having equal importance is the examination of corruption as a social projection of psychological laws that govern social human activities. To deal with this task, this monograph used the academic toolkit of philosophy, sociology, and political science. The examination of corruption as a global problem may not be complete without referring to foreign experience; therefore, the 1

Yu.A. Tikhomirov. Corruption: a Challenge Facing Modern Government // Corruption: Nature, Manifestations, Countermeasures: Monograph / Managing editor: Academician of the Russian Academy of Sciences T.Ya. Khabrieva. Moscow, 2012. P. 628.

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legal comparison of the implementation of national anti-corruption strategies remains critical. At the same time, it is necessary to accumulate efforts of a wide range of international and foreign experts, including those from the East Asia region, which would enable identifying the similarities and differences between employed approaches to legal regulation in order to elaborate proposals that may be used to improve the Russian legislation and law enforcement practice. Notwithstanding that the efficiency of anti-corruption measures in various countries is attained using different methods, the general trends repeat, and should be considered. The work performed was comprehensive, and its results will be of interest to scientists, teachers, state and municipal public servants, and business community representatives, and may contribute to the implementation of the National Anti-Corruption Strategy, and give new momentum to further scientific research. The next step towards understanding the corruption phenomenon must be the study of matters of its prevention. Preventing corruption today requires the balanced interaction of all branches of the Russian legislation, including criminal, civil, labor, administrative, and financial laws, because such interaction may lead to obtaining positive results in the law enforcement activities. The level of legal regulation in the field of combating corruption commonly increases, which, as studies show, delivers an obvious result in terms of its prevention. However, we should not overestimate the role of law; there should not be any illusion of «iron laws» capable of guaranteeing the compete rooting out of corruption. Such idea may eventually discredit legal regulators that play a critical, but by no means the only role in this fight. Coping with corruption is a complex process; therefore, anticorruption studies in the field of sociology of law and social psychology require more intensive development, which would enable a more accurate evaluation of impact the measures taken by the government have on the causes, dynamics, and state of corruption. It is axiomatic that one may expect the formation of a non-corrupt government machine with high standards of professional ethics only in the society, where an agreement on the essential moral values has been reached. The economic science designed to appraise the impact of corruption on the stability of the economic system, freedom of 350

Conclusion

economic maneuvers, production and consumption structure, and operation of economic institutions also plays an important role. The priorities in the private sector must include: scientific justification of the ethical and legal framework of business practices that contributes to an atmosphere of zero tolerance to corruption; scientific recommendations with respect to the content of corporate codes of ethics, improvement of anti-corruption prohibitions, restrictions and duties enshrined therein, supplementing labor contracts with provisions regarding reasonable and fair discharge of duties by employees. It is also expedient to use other regulators related to performing the anti-corruption standardization depending on specific features of organizations and professional activities, considering objective opportunities to use such standards. Such standards may be enshrined in the national legislation, anti-corruption standards of chambers of commerce and industry, self-regulatory organizations, bilateral and multilateral agreements, including those as part of regional associations (EEU, SCO, BRICS, etc.). In addition to determining special types of corrupt transactions in the civil legislation, it appears to be promising to apply special legal consequences with respect to them: unilateral restitution; payment of compensation for damage caused, the amount of which is set as a percentage of the transaction price. The opportunity of compensating for reputational harm inflicted on the Russian Federation, a constituent entity of the Russian Federation, or municipality by wrongful acts of corruptionists should be analyzed separately. Major areas of modernization of the criminal law in the field of combating corruption contemplate the development of the following legal instruments: criminalization, penalization of acts, improvement of law-making, expanding the area of impact on various points of corrupt interests. It is required to clarify the attributes of corruption offenses, list of offenders, criminal penalties considering criminological aspects of prevention of corruption-related crime. Legislative penalties for committing corruption-related crimes that do not secure the prevention of corruption require systematic revision. While the potential of prohibitive and restrictive anticorruption measures is used extensively, the acute shortage of measures that promote lawful conduct is observed. 351

Conclusion

The prevention of corruption contemplates a wider systemic evaluation of risks related to the acquisition of corrupt income. Furthermore, the building, legal entrenchment, and consistent implementation of the system of correlated anti-corruption technologies that allow detecting and suppressing corruption offenses, and mitigate damage they cause are of great importance. This may be achieved through a more in-depth analysis of methods of deriving corrupt income, and timely informing the public authorities, private sector, and public about corruption manifestations in the activities of public and private entities and officials. The system of anti-corruption prohibitions, restrictions, and duties of natural and juridical persons must be designed considering the review of the personal legal status provided for by the Constitution of the Russian Federation and federal laws, principles of consistency, completeness, and integrity of legal regulation, and its differentiation depending on the existing and potential risks. They include as follows: a) availability of resources, the access to which may cause corrupt conspiracy; b) availability of interest, which is the driving force behind the activities of the participants of potential corrupt practices; c) damage that corrupt behavior of an employee filling the appropriate office may cause to interests of the state, society and individual; d) availability of an authority to take decisions regarding resources, the access to which may cause corrupt conspiracy. All this indicates the need for continued fundamental and applied studies of problems associated with combating corruption, and based on their results – for taking inventory of, and introducing novels to, the system of anti-corruption and other measures applied in the Russian Federation.

352

Scientific publication

COUNTERACTION CORRUPTION NЕW CHALLENGES MONOGRAPH

Chief editor Member of the Russian Academy of Sciences T.Y. Khabrieva

Approved for print on March 21, 2017 Format 60¯90/16. Offset paper. Typeface JournalC Offset printing. Conventional printed sheets 22,25 Edition: 500 copies.

Institute of Legislation and Comparative Law under the Government of the Russian Federation