CC BY
94ANTI-CORRUPTION EXAMINATION IN THE SYSTEM OF MEASURES DESIGNED TO COUNTERACT AND PREVENT CORRUPTION
Tengiz Tatishvili
Post-graduate student at the Chair of Political Science and Law International Institute of Public Administration and Management of the Russian Presidential Academy of National Economy and Public Administration.
Abstracts: The subject of the article is anti-corruption examination — a relatively new procedure in the struggle against corrupt practices, and its place in the system of counteracting corruption. The article presents corruptio-nogenic factors and methods used to detect such factors in regulatory legal acts
Keywords: corruption, corruptionogenicity, anti-corruption policy, anti-corruption examination, corruptionogenic factor
In the context of this study, corruption is understood as wrongdoing on the part of public officers in the form of granting and using tangible objects and non-tangible advantages and benefits when exercising their public power or using their official position The word “corruption” is of Latin origin, and in Latin the word cor-ruptio meant “damage, bribery”.
Corruption results in mistrust of the state by citizens, and it appears to be a global problem not only for Russia but for the whole world There are scholars who regard corruption as a trap which men of influence use to capture the state by simply purchasing from government bodies the decisions they need
The phenomenon per se is known from the earliest times; it existed already in ancient Greece . Plato suggested that officials who obtained additional fees for performing their responsibilities should be put to death . The Persian king Darius used to execute judges for bribery. Whereas Rome, on the contrary, witnessed times of exuberant corruption, when officials were permitted to receive presents, though their price had to be within some fixed sum
In Russia corruption flourished in tsarist times We can cite the historical case of a man who, having offered a bribe of three thousand roubles to an official, promised that he would not tell
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
anyone about it, but the official replied: “Give me five thousand, and then you can tell everyone whatever you want” There were attempts made to fight against this phenomenon, for example, Ivan the Terrible imposed the death penalty for persons who took excessive bribes . Peter the Great also strove hard against corruption, and the following episodes can serve as proof: the Governor of Siberia M P Gagarin was executed “for covetousness”, then the ober-fiscal A.Ya. Nesterov was quartered on a charge of corrupt practices . Ironically, it was Nesterov himself who, several years before, had established the guilt of Gagarin . 1
Corruption did not disappear in Soviet times The Procurator General of the USSR (1948—1953), G. N. Safonov, reported to the central government that the Soviet judicial system was grievously afflicted with corruption from top to bottom:
I report that recently the procuratorate of the USSR has revealed numerous facts of bribery, abusive practice, incorporations with criminal elements, illegal sentencing and passing wrongful judgement decisions in law courts of Moscow, Kiev, Krasnodar and Ufa. In the course of the investigation it was found that these crimes were committed at various levels of the court system, namely, in people's courts, the Moscow Municipal Court, Kiev Regional Court, Krasnodar Territory Court, Supreme Court of the Russian Soviet Federative Socialist Republic, and, ultimately, in the Supreme Court of the USSR ... Although the investigation of these cases is far from being over, in Moscow alone 111 officials have already been arrested, including: judicial officers — 28, advocates — 8, legal advisers — 5, other officials — 70.2
In 1998 the INDEM Foundation presented the report: “Russia and Corruption: Who Is Going To Win?”. According to the report, practically all spheres of social life in Russia are exposed to corruption; therefore it was recommended to integrate an anti-corruption programme into the state policy:
Anti-corruption policy must become an integral part of the state policy In practice this dictates that an anti-corruption programme must be promptly developed and launched, and in the perspective
1 Find more details in Kirpichnikov A. I. Vzjatka i korruptsija v Rossii [Bribery and corruption in Russia], St. Petersburg: Alpha 1997. Translator’s note: The statutory office of ober-fiscal was introduced by Peter the Great; ober-fiscals were high-ranking state financial controllers, whose function was to supervise officials and to investigate cases of abuse of power
2 .Romanov B. Korruptsija v tsarskoi Rossii i v stalinskom SSSR [Corruption in tsarist Russia and in Stalin’s USSR] // http://www.proza. ru/2010/0.
48
it should be imposed as a standing corruption constraints system. Development and implementation of such a programme should be based on precise understanding of the nature of corruption, on analysis of the causes that accounted for failure in the fight against corruption, on recognition of existing conditions and restrictions; on clear and productive principles .3
This account allows us to conclude that corrupt practices have existed in Russia at all times, and there have always been efforts made to counter them, though these attempts proved to be mainly fruitless . However, legislation does not stand still, and new methods aimed at fighting corruption are being constantly developed . In 2006 Russia ratified the European Criminal Law Convention on Corruption (adopted in Strasbourg in 1999) and the United Nations Convention against Corruption (UNCAC), where corrupt practice is characterized as a universal threat, which weakens democracy and thwarts the progress of humankind taken as a whole This ratification started a new period of political housecleaning in Russia
Today we observe that both the state and citizens take vigorous actions in order to discourage and prevent corruption . The Presidential Decree of the Russian Federation No. 460 “On the National Strategy of Counteracting Corruption” provides for a number of steps in this direction . New provisions in the field, include the following: people's claims and applications that concern corruption practices are monitored, and the results of such monitoring are published in mass media and on official web-sites; public-opinion polls on corruption-related issues are conducted; accuracy and completeness of income records provided by public servants are checked; performance of public offices and businesses is inspected with a view to certify if public assets are used effectively; topics on anti-corruption methods are included into the curricula of further training courses for public servants
It is essential to bring into focus the notion of “anti-corruption examination”, since it is spreading quickly and is used more and more by experts in this field . President D . A. Medvedev also pointed out that applying anti-corruption examinations would be highly appropriate at the present moment. On 2 July 2008 in a Panel Session of the Council of Legislators he emphasized the urgency of
3 Johnston M. Chto mozhet byt predprinjato po otnosheniju k ukorenivsheisja korruptsii [What Can Be Done about Deep-Rooted Corruption]: A translation into Russian of the report presented at the Annual Conference of the World Bank on economics development problems. Washington, 1997; ITAR-TASS, 29.04.96. Brief of the article by G. R. Cheddock in The Christian Science Monitor (CSM).
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
setting criteria for such examinations4 . Paragraph 2 of Article 6 of the Federal Law “On Counteracting Corrupt Practices” dated 19 December 2008 officially introduces the concept of anti-corruption examination of regulatory legal acts. Moreover, such examination is assigned to play a key role as one of the basic measures intended to counter corruption
On 17 July 2009 the State Duma passed the Federal Law “On Anti-Corruption Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts”. The law fixed the judicial and organizational framework for anti-corruption examination, and it was the next step along the given route
Anti-corruption examination is obligatory for all draft regulatory legal acts . In case it comes to light that an effective law contains some provisions, which conduce to the formation or development of corrupt practices, an examination is also carried out for the act already in effect In compliance with the legislation, anti-corruption examination can be carried out by the procuratorate, a federal agency of the executive branch in the area of justice, and, besides, by companies and organizations and their functionaries
Thus, the aforesaid law provides for two types of anti-corruption examination, i e , internal and external examination Internal examination is conducted by procuratorate, Ministry of Justice, authorities (including constituent territories of the Federation and bodies of local self-government), as well as by state organizations and their officials They inform the Procuratorate of the Russian Federation about the revealed corruptionogenic factors The Procuratorate either directs to the corresponding entity or official a demand that alterations be introduced into the given regulatory legal act, or applies to court External examination is conducted by accredited independent expert bodies, established by civil society institutions or by individuals Independent experts have a right to conduct an examination of any regulatory legal act, but at their own expense Their report with proposals on how to eliminate the detected corruptionogenic factors is directed to the corresponding entity The report is not binding, although it is subject to obligatory consideration . Having considered the report, the entity in question must give a reasoned response, though in case the report of the
4 Medvedev D. A. Vystuplenije na zasedanii Soveta zakonodatelei po voprosam zakonodatelnogo obespechenija protivodeistvija korruptsii [Speech in a Panel Session of the Council of Legislators on the Question of Legislative Provision in the field of Counteracting Corruption] (2 July 2008, Moscow) // Pravo i bezopasnost [Law and Safety], 2008. No. 2 (27).
50
expert organization or physical body contained no proposals, the state authority reserves the right not to respond
By means of anti-corruption examination the state establishes an obligatory integrated framework for analysis of the legal system of the Russian Federation as a whole Inviting civil society institutions to cooperate ensures that there emerges a new force in the struggle against corruption, that public organizations start collaborating actively with authorities, and that the state guarantees its citizens the sufficient competence of experts, relevancy, objectivity and accountability of the work they do
It is implied that in the framework of anti-corruption examination experts detect existing norms in laws that might possibly form an environment for corruption, and prevent from new ones from appearing It has proved to be necessary to introduce a new term, “corruptionogenicity”, which defines certain conditions that in all probability can generate in a law or create in practice a risky framework that can lead to emerging corruption practices in this or that sphere of the society life
Article 1 of the Federal Law “On Anti-Corruption Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts” gives the following definition of corruptionogenic factors:
provisions of regulatory legal acts (draft regulatory legal acts) that establish for the law enforcement entity a groundlessly broad borders for judgment or a possibility to apply exceptions to general rules without sufficient grounds; as well as provisions containing requirements to individuals and organizations that are vague, difficult of accomplishment and onerous, and therefore creating conditions for corruption
According to the definition there can be distinguished two main types of corruptionogenic factors: (1) when corruption is provoked by stipulations that provide a law enforcement body with a groundlessly broad discretionary power or a possibility to apply exceptions to general rules without sufficient grounds; and (2) when legal provisions contain requirements to individuals and organizations that are vague, difficult to accomplish and onerous
The government regulation of the Russian Federation No . 96 dated 26 February 2010 “On Anti-Corruption Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts” ratifies rules and methods of conducting anti-corruption examination of regulatory legal acts and draft regulatory legal acts The regulation specifies both types of factors. The former group includes:
(a) broadness of discretionary powers, i e absence or uncertainty of specified time limits, conditions or grounds for decision-making;
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
the fact of duplicating governmental authorities or local authorities (their functionaries);
(b) defining competences in the terms of “have a right”, i . e. that governmental authorities or local authorities (their functionaries) can perform a discretionary action in relation to citizens and organizations;
(c) selective alteration of the measure of rights, i e there is a possibility to make an exception to general rules without sufficient grounds for individuals and organizations at the discretion of governmental authorities or local authorities (their functionaries);
(d) excessive liberty of sub-legislative rule-making, i e there are blanket and reference norms, resulting in adoption of subordinate acts superimposing on competence of the public or local authority that adopted the original regulatory legal act;
(e) adoption of a regulatory legal act beyond one's competence, i . e . public or local authorities (their functionaries) acted beyond their competence when adopting a certain regulatory legal act;
(f) filling legislative gaps by force of bylaws in the absence of required authority, i . e. in the absence of the relevant law a subordinate act stipulates rules of conduct as compulsory for all;
(g) absence or incompleteness of administrative procedures, i e absence of the stated sequence of particular actions to be applied by public or local authorities (their functionaries) or absence of one element in such a sequence;
(h) refusal to participate in competitive (auction) procedures, i. e. fixing the administrative procedure of granting the right (advantage)
According to the above-cited governmental prescription of rules and methods for conducting anti-corruption examination, the latter group of factors includes:
(a) excessive requirements claimants have to meet in order to exercise their right, i e there are requirements on individuals and organizations that are vague, difficult to accomplish and onerous;
(b) abuse of the applicant's right by public or local authorities (their functionaries), i e absence of legible regulation of civil rights and rights of organizations;
(c) juridical and linguistic uncertainty, i e use of unconsolidated, unsteady or ambiguous terms and categories of evaluating character
By way of illustration and in order to enhance the understanding of corruptionogenic factors it is worthwhile to analyse one expert opinion based on the anti-corruption examination:
Tengiz Tatishvili. Anti-Corruption Examination in the System. .. EXPERT OPINION5
The present expert opinion is prepared in accordance with Article 5 of the Federal Law dated July 17,2009 No. 172-FZ “On Anti-Corruption Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts”, Article 6 of the Federal Law No. 273-FZ dated December 25,2008 “On Counteracting Corruption”, Para
4 of the Rules of conducting anti-corruption examination of regulatory legal acts and draft regulatory legal acts ratified by the Government Regulation of the Russian Federation No. 96 dated February 26, 2010.
Subject of the examination is the Order of the State Committee on transport and communications in Pskov Region dated 12.09.2011 No. 39 “On adoption of the procedure of filing by preliminary appointment applications for a permit to operate as a carrier of passengers and baggage by taxi-cabs in the territory of the region and of the carriers' subsequent registration” (hereafter referred to as the Order). The Order was subjected to examination for the purpose of detecting corruptionogenic factors in it and their consequent elimination.
In the present Order there were detected the corruptionogenic factors specified by subparagraphs “a” and “g” of Para 3 of the Methods and Rules of conducting anticorruption examination of regulatory legal acts and draft regulatory legal acts.
Item 3 of the “Procedure of filing by preliminary appointment applications for a permit to operate as a carrier of passengers and baggage by taxi-cabs in the territory of the region and of the carriers' subsequent registration” (hereafter referred to as the Procedure) reads as follows:
“Applications are submitted by preliminary appointment and with regard to the time interval required to file documents and to the current level of work pressure on the personnel of the authorized department of the State Committee”.
In the given edition of Item 3 of the Procedure there can be traced a broadness of discretionary powers in what concerns uncertainty of time limits, which falls under subparagraph “a” of Para 3 of the Methods and Rules of conducting anticorruption examination of regulatory legal acts and draft regulatory legal acts.
In order to remove the detected corruptionogenic factor it is necessary to establish a specific maximum time interval between the date the appointment is made and the date when the documents will be submitted, which is to ensure that applicants receive the government service in due time.
5 Expert opinion dated 27 October 2011, prepared by the independent expert Liliya P. Yakovleva based on the findings of the independent anti-corruption examination of the Order of the State Committee on transport and communications conducted in Pskov Region dated 12 September 2011 No. 39, “On adoption of the procedure of filing by preliminary appointment applications for a permit to operate as a carrier of passengers and baggage by taxi-cabs in the territory of the region and of the carriers’ subsequent registration” // http://www.lawexpertise.ru/sites/ default/files/doc/39.pdf.
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
Item 8 of the Procedure states that the State Committee can refuse to accept the applicant's documents in the course of considering his or her application. It is evident that the given administrative procedure is incomplete and uncertain. Given that documents are submitted to the State Committee by the applicant in person during his or her visit to the office, the decision about non-admittance of the application must be made when the documents are being submitted, but not when the application is being considered.
In order to correct the detected factor it is necessary to exclude the right of the State Committee not to admit the application from Item 8 of the Procedure, while in Item 7 there shall be included specific cases of non-admittance of the application and the documents.
According to the provisions of the Procedure subjected to analysis in the above Expert Opinion, applicants have no idea about when the Committee will respond or even if their applications will be considered or not, since there is no established procedure for non-admittance of applications . If applicants are not given any information either about when their application will be considered, or about possible reasons for a refusal, they will probably not apply, or, in case they do, they will not expect a timely or positive answer It is but natural to assume that people who are aware of existing procedures will readily agree to pay in order to expedite the process and to ensure a favourable decision. This example clearly shows certain defects in legislation in the given area and proves the existence of the principal necessity of anti-corruption examination
The nongovernmental international agency “Transparency International” is organized to research and fight corruption all over the world, including publication of its “corruption perception index” annually In 2008 Russia's score on the corruption perception index placed it 147th out of 180 countries, but in 2012 Russia ranked 133 out of 176 countries . Thus, one can conclude that there is a certain positive shift in the struggle the Russian Federation is waging against corruption6 .
In this connection, I would like to cite a fragment from the dialogue between Socrates and Hippias:
Socrates . What would you say, Hippias, is it more harm than good the law does to the state?
Hippias. The law, I believe, is made for the good; however, it does harm sometimes, when it is made imperfect . 7
Imperfection of the law, in our case manifested in corruptionogenic factors, is traditionally linked to mistakes made by legislators, while
6 http://transparency.org.ru/search?searchword=%D0%98%D0%92%D0%BA
7 Hippias Major. Plato. The writings in 4 volumes. Vol. 1. Moscow: Mysl, 1994. P. 5
the role of anti-corruption examination is to exclude all kinds of errors that might produce a negative effect . It should be pointed out that expert activities make the legislative process more complicated, but the prevailing opinion expressed in scientific literature is that the more complicated it was to adopt the law, the higher is its quality It is evident that anti-corruption examination is important to apply as a key element in political housecleaning.
In conclusion it should be emphasized that anti-corruption examination is not a self-sufficient remedy in a set of measures used in the struggle against corruption, which would by itself enable the greatest decrease of corrupt practices in our state It does occupy a prominent place among measures aimed at counteracting corruption; however, optimal results can be achieved only when anti-corruption examination is actively combined with other elements of anticorruption monitoring, preventive measures, and effective anticorruption legislation
Speaking of anti-corruption measures, I mean not only express prohibition and established responsibility for concrete corrupt acts, but also building up powers in such a way that leaves no possibility for arbitrary actions and will not allow officials to take decisions in somebody's behalf, even when they are inclined to do so. It is imperative to eliminate a possibility for adopting such laws or norms that generate expressly or by implication an environment that provokes bribery, blackmail and other forms of corrupt practices
History has produced conclusive evidence that no country is immune to corruption, and to win a decisive victory in the struggle against this evil and to liquidate it totally is practically impossible However, it does not mean at all that we have to throw up our hands We would do better to recall that, when speaking about counteraction of corrupt practices on federal television, D . A . Medvedev stated that this is a challenge for the authorities to deal with for several decades hence .s Judging by the experience of other countries, it is quite feasible to achieve a significant breakthrough in this area, so that even though corrupt practices are not absolutely eliminated, they are scaled down to such an extent that corruption no longer remains one of the principal obstacles in the way of socioeconomic development of the country
8 Belov S. Byt silnymi i sovremennymi [To Be Strong and Modern] // URL: http:// www. rg. ru/2009/07/27/medvedev. html
Law and Modern States № 3 — 2013
