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129Law and Modern States № 3 — 2013
PROBLEMS OF FORMING ANTI-CORRUPTION LAW POLICY IN MODERN RUSSIA
Nataliya Mamitova
Doctor of Legal Sciences, Professor, Chair of Political Science and Law International Institute of Public Administration and Management of Russian of Presidential Academy of National Economy and Public Administration
Abstracts: For the Russian Federation and its subjects, it is still topical to develop and implement an effective anti-corruption policy, which would include a set of measures aimed at counteracting corruption. The article clarifies the contents of some of the measures, and sheds light on the priorities set in the anti-corruption law policy of the country.
Keywords: policy, law policy, corruption, legislation, examination, anti-corruption examination, expert
Solving the problem of corruption is one of the significant challenges contemporary Russia is facing. Corruption hinders the accomplishment of the most important economical and political goals, undermines the authority of governing bodies in the eyes of people, interferes with effective development of commercial, economic and other types of relations at the international level and stands in the way of efficient lawmaking.
Expertise (the word is of Latin origin, from expertus, meaning “the one who knows by experience, sophisticated”) is understood as the conduct of a specialist (expert) investigation of a certain subject on the assumption that considering this subject requires special knowledge in the domain of science, engineering, art, etc Expertise, or examination (a more common term), is an in-depth analysis of a particular object (including information objects), based on the application of stored professional knowledge and an expert's own experience . This is summed up in the expert opinion, registered according to the established procedure as an official document so that there are provisions for taking a responsible decision on the matter under investigation
The present concept refers to any kind of examination, be it an examination assigned by state agencies or institutions, or conducted by public organisations and individual experts. 1 Anti-corruption examination of regulatory legal acts and their drafts aims to identify and eliminate such provisions in regulatory legal acts that may create conditions for corruption
The search for a resolution in the given area is indisputably a matter of urgency
Firstly, in today's Russia there exists a variety of examinations . However, their legislative status is not determined, whereas the demands of legal practices in this sphere remain urgent. Until recently, anti-corruption examination also ranked among numerous investigations that have no defined legislative status Secondly, as a result of the rapid development of modern Russian legislation, there is a need to update provisions for expert activity in the course of lawmaking Furthermore, this necessity should be considered an integral part of law policy in the Russian Federation
An idea to revise legislative acts against the criterion of present corruptionogenic factors emerged in 2002—2003. In 2004, there was created the integrated and agreed-upon document titled “Instructions to the expert for conducting primary analysis of the corruptionogenicity of the legislative act” The prescribed procedure in the document on analysing a regulatory legal act is based on verifying compliance with legalistic technique and valuating norms with a view to “defectiveness” in terms of their corruptionogenic potential . 2 This problem is actively discussed in modern legal literature,3 and to date, we have already accumulated some experience in analysing drafts of federal laws and laws of constituent entities of the Russian
1 See: Mamitova N. V. Pravovaja ekspertiza Rossiiskogo zakonodatelstva: voprosy teorii I praktiki. [Legal Review of Russian Legislation: Questions of Theory and Practice] // Gosudarstvo i pravo [The State and the Law.] 2010. No. 11. P. 5—14.
2 See: Zakonodatelnaja tekhnika [Legislative Technique] / Ed. .Ju^. Tikhomirov. Moscow, 2000.
3 See: Talapina E. V. Ob antikorruptsionnoj ekspertize. [On Anti-Corruption Examination] // Zhurnal rossijskogo prava [Journal of the Russian Law] 2007. No. 5. P. 39—52; Tikhomirov Ju.А. Prakticheskie aspekty osushchestvlenija antikorruptsionnogo analiza i otsenki realizatsii pravovykh aktov. [Practical Aspects of Carrying Out Anti-Corruption Analysis and Evaluating Implementation of Legal Acts] // Ibid.P. 20; Khabrieva T.Ja. Formirovanie pravovykh osnov antikorruptsionnoi ekspertizy pravovykh aktov. [Building-Up the Legal Platform for Conducting AntiCorruption Examination of Regulatory Legal Acts.] // Ibid. P. 6; N. V. Mamitova Pravovaja ekspertiza Rossijskogo zakonodatelstva: uchebno-prakticheskoe posobie
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Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
Federation with a view to detecting their corruptionogenicity. However, further efforts should be made to improve the analysis technique
The normative legal base for conducting anti-corruption examination is provided by the Federal Law of 25 December, 2008, No . 273-FZ “On Counteracting Corruption”, and the Federal Law of 17 July, 2009, No. 172-FZ “On Anti-Corruption Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts” These laws considerably expanded the scope of anti-corruption examination. Now, not only draft regulatory legal acts, but also regulatory legal acts in force can be subject to anti-corruption examination . Besides, these laws provided for a significant increase in the number of objects and subjects that can undergo anti-corruption examination . The legislators pointed out which draft regulatory legal acts could be subject to obligatory anticorruption examination
The Presidential Decree of 19 May, 2008 “On Measures Aimed at Counteracting Corruption”, and the “National Plan of Counteracting Corruption” (No Pr-1568), ratified by the President on 31 July, 2008, have proven to be essential in the development of legislation at the federal level
On 26 February, 2010, there was enacted the government regulation of the Russian Federation No. 96 “On Anti-Corruption Examination of Regulatory Legal Acts and Draft Regulatory Legal Acts”, which legislated Rules and Methods of conducting anti-corruption examination of regulatory legal acts and draft regulatory legal acts
On the basis of the analysis of federal regulatory legal acts, one can draw a conclusion that it is mainly the procuratorate together with federal and regional agencies of the executive branch who bear responsibility for implementing anti-corruption examination as a means of law policy 4 Russian legislation in effect stipulates conduction of two kinds of anti-corruption examination of regulatory legal acts and their drafts — an official or state examination, and an independent examination, which specialists also call a social or public examination
The former, an obligatory official state anti-corruption examination, is conducted by the Procuratorate, subdivisions of the Russian
[Legal Review of Russian Legislation: Questions of Theory and Practice: training textbook.]. Moscow: Norma; INFRA-M, 2013 and other sources.
4 See: Mamitova N. V. Problemy provedenija antikorruptsionnoi ekspertizy organami prokuratury Rossijskoi Federatsii. [Problems of Conducting AntiCorruption Examination by Organs of the Prosecutor’s Office of the Russian Federation] // Voprosy pravovedenija [Questions of Jurisprudence]. 2013. No. 1. P. 288—295.
Department of Justice and federal and regional agencies of the executive branch, as well as by local authorities and their functionaries, who are empowered to perform such an activity
Independent experts, who act as subjects of unofficial public examination, can conduct the latter unofficial anti-corruption examination In fact, this kind of examination is accomplished by nonstate agencies and organisations, various scientific and educational institutions, panels of law experts and certain individuals Their opinion does not imply any legal consequence whatsoever, and their conclusions concerning the subject matter of the examination are of nonbinding character. We assume that the notions “unofficial examination”, “public examination” and “social examination” are to be treated as identical
Admittedly, the legal control framework used currently to regulate procedures in the domain of anti-corruption examination of regulatory legal acts and their drafts remains deficient, especially in constituent entities of the Russian Federation
A number of constituent entities of the Russian Federation have already adopted laws on counteracting corruption, which stipulate anti-corruption examination of regulatory legal acts and their drafts However, when estimating general conditions for conducting anticorruption examination of regulatory legal acts, a significant role is assigned to the actual procedure in use, which, we regret to say, is not properly developed at the federal level Federal legislators have confined themselves to mere specification of corruptionogenic factors, which the expert should bring to light in the course of the examination However, the procedure itself must present a much more complete and precise technique based on a theoretic foundation, academically proven methodology, concrete means of carrying out the expert examination and sociologic methods (understood as a complex technology used to ensure effective application of this or that tool). Only such a procedure will make it possible to see corruption through the prism of precision instruments designed for its analysis
Imperfection of the procedure is one of the main problems that block conducting anti-corruption examination today.
According to government regulation No 96, rules and methods of conducting anti-corruption examination of regulatory legal acts and draft regulatory legal acts amount to identification of 11 corruptionogenic factors divided into two main groups:
1. When law provisions allow for a law enforcement body to have a unfairly broad discretionary power or a possibility to apply exceptions to general rules
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Law and Modern States № 3 — 2013
2. When law provisions contain requirements from individuals and organisations that are vague, difficult to accomplish and onerous Corruptionogenicity is, therefore, understood as possibility which is provided in a legal norm and capable to cause corruption in the course of implementation of this norm
Regrettably, the present procedure confined itself to merely giving a checklist of corruptionogenic factors that must be revealed in the course of carrying out the expert examination, whereas intrinsically any procedure must comprise main objectives, problems, principles and recommendations, which form the basis for its application In our opinion, the procedure for analysis of regulatory legal acts and their drafts against corruptionogenicity should contain the following features:
1. Qualitative and quantitative criteria that allow to determine whether the given norm, article, section, or paragraph can be classified as corruptionogenic
2. Algorithms for detection of corruptionogenic factors and elimination of corruptionogenic norms
3 Statement about preparation of proposals concerning either the necessity to introduce alterations and amendments into the regulatory legal act or to reject and refine the draft regulatory legal act
4. Formulated legislative technique focused on how to prevent corruptionogenicity of legal norms
It is important to note that in modern interpretation of the lawmaking process, the law is not regarded as an activity intended to govern society, but rather as an activity intended to coordinate different social interests, so that the freedom of one member of the society does not derogate from the freedom of others In this context, a corruptionogenic norm emerges in cases where the rule-making process fails to identify all legislative interests
Apart from defining assessment indicators and criteria for regulatory legal acts and their drafts with a view to revealing their corruptionogenicity, it is equally important to specify who will conduct anti-corruption examination and how this will be carried out
Another problem that hinders conducting anti-corruption law policy is the indeterminate legal status of the expert.
The essential element of legal examination is a comprehensive analysis of the subject matter by the expert within a distinct area of knowledge and an obligatory submission of the expert opinion summarising the results of the conducted activities
Scientifically well-founded notions and conceptional ideas should form a solid basis for examination results This basis will serve to ensure the proper quality of laws, contribute to their systematisation 44
and facilitate identification of possible negative social, economic, juridical and other consequences that can emerge in the process of implementing these laws
To conduct a legal examination, it is necessary to provide informative and technologic support A key role in providing such support should be played by an expertise system that integrates experts' knowledge and experience with the potential offered by modern computer engineering This is an opportunity to optimise a technology for carrying out the examination, and to reduce time and labour inputs Creating an information-oriented society and an electronic framework of the state opens up fresh opportunities for lawmaking activities
However, public examination must not be limited to the authority delegated to the Civic Chamber of the Russian Federation or Civic Chambers of its constituent entities For example, the Chamber of Commerce and Industry also has the right to perform independent examination of draft normative acts in the area of economics, foreign economic relations and other areas, in case some issues in the normative acts in question affect the interests of businesses and entrepreneurs
One more problem in the system of anti-corruption law policy which requires legislative resolution is that of administrative barriers.
The issue of administrative barriers as a source of corruption has become quite a topical subject. Detecting administrative barriers and developing methods aimed at overcoming them can be based on monitoring laws and regulations The monitoring concept was justified and formulated by the Law Monitoring Centre attached to the Council of the Federation . Therefore, lawmaking and law enforcement should be viewed as complex, and the monitoring of laws and regulations per se is understood as a systematic activity intended to estimate, analyse, generalise and anticipate changes concerning the legal system
Today, in the Russian anti-corruption legislation, there can be identified a number of loopholes, which can be eliminated by conducting effective anti-corruption law policy. The loopholes are as follows:
1. It is not obligatory to remove the corruption factors revealed in the course of anti-corruption examination
2. It is obligatory to consider the expert opinion drawn up in accordance with the findings of an anti-corruption examination, but it is not subject to compulsory implementation The expert opinion is nonbinding
3. There are no law provisions stipulating any responsibility for the agencies that pass regulatory legal acts and their drafts in case the
Law and Modern States № 3 — 2013
Law and Modern States № 3 — 2013
corruptionogenic factors revealed in the course of anti-corruption examination are not removed
4. There are no law provisions stipulating that formerly adopted regulatory legal acts already in force must also undergo anti-corruption examination . Neither does the law stipulate any mechanisms that would guarantee an obligatoriness of carrying out anti-corruption examination of draft regulatory legal acts
5. There are no law provisions that would determine the legal status of the expert, specifically, their rights, obligations and responsibilities
The discussion so far provides the basis for further improving anti-corruption law policy in the Russian state, which would require taking the following actions:
— enacting in law that conducting a scientifically justified legal examination should be an obligatory phase in preparing an act of legislation, and introducing this phase as a legislative norm in the general scheme of the lawmaking procedure;
— developing and legislating fundamental requirements of normative acts in terms of their compliance with the juridical technique;
— developing the integrated and uniform scientifically proven procedure of conducting a legal examination, including an anticorruption examination that all draft laws should undergo;
— ensuring the development of a scientifically justified concept of anti-corruption law policy in modern Russia, which would be based upon ideas with a high degree of topicality and social relevancy
