By: Denis Primakov J.D., Chief Lawyer, Transparency International – R
Denis Primakov J.D., chief lawyer at Transparency International-Russia (TI-R), shares with us some thoughts about the uphill struggle to battle corruption in the Russian Federation. Transparency International-Russia (TI-R) is the national chapter of the global civil society organization leading the fight against corruption, and raises awareness of the damaging effects of corruption and seeks to work with partners in government, business and civil society to develop and implement effective measures to tackle it. Prior to moving to Moscow and joining the Institute of Russian Legislation and Comparative Law under the Government of the Russian Federation, Primakov studied Hebrew literature and law at the Hebrew University of Jerusalem.
Battling corruption in Russia
One of the main problems I see in Russian anticorruption legislation is the lack of measures involving asset recovery, criminalization of illicit enrichment and whistleblowers’ protection (protection of people who inform about misconduct, alleged dishonest or illegal activity occurring in an organization).
I would like to a short review of the steps that Russia has been undertaking in the sphere of anticorruption policy for the past 6 years:
On February 28th, 2008, Federal Law № 273-FZ, “On Combating Corruption” was passed. At the same time, the Council on the Prevention of Corruption had its first meeting under the leadership of former president Dmitry Medvedev. The first Anti-Corruption Plan was published in July 2008. This plan suggested stricter punishments for corruption, such as the disqualification of state and municipal officials who commit even minor corrupt acts. Furthermore, it proposed the obligation of officials to report corruption. The plan ordered the government to prepare anti-corruption legislation based on these suggestions. In order to fulfill this plan, three interconnected federal laws were adopted: № 273-FZ, 178-FZ and 280-FZ. Collectively, they expand and revise Russia’s Criminal, Civil and Administrative Codes that relate to the bribery and corruption of public officials.
Federal Law № 273-FZ formally defined, for the first time under Russian law, the notion of “corruption”, and made it obligatory for public officials to publish their income and assets, as well as report any conflicts of interest that they may have whilst fulfilling their legislative duties. Yet, this law did not criminalize the offering of a bribe – it only penalized completed bribes. This was a perceived problem, because many enforcement actions begin once the honest target of a bribe reports that he/she has been approached with an offer.
With the passage of recent amendments to the anti-corruption laws on May 4th, 2011, (Federal Law No. 97-FZ, “On Inclusion of Changes to the Criminal Code of the Russian Federation and the Code of Administrative Offences in Connection with the Improvement of Government Administration in the Area of Fighting Corruption”), Russia took another significant step toward fulfilling the commitment made by President Medvedev in his National Plan for Counteraction to Corruption, as well as approaching to meet a series of international obligations. The National Plan for Counteraction to Corruption in 2010-2011 was approved by the decree of the President of the Russian Federation, № 460 13.04.2010, which amended the previous anti-corruption plan of 2008.
The 2011 legislation made three necessary changes to Russian law that cleared the way for Russia to be accepted into the OECD Working Group on Bribery. Those changes were: outlawing bribery of foreign officials, increasing the statute of limitations for foreign bribery committed by legal entities and significantly increasing sanctions for both natural and legal persons for the offense of bribery.
Political statements by the former and incumbent presidents of Russia, as well as amendments to Criminal and Administrative Codes, indicate a willingness to pay attention to international collaboration in the fields of corruption prevention and anti-corruption criminal law enforcement.
However, because both the judiciary and law enforcement bodies maintain a long list of persons who are legally immune to prosecution, it is exceedingly complicated, if not impossible, to bring high-ranking officials involved in corruption to trial.
Some serious loopholes in the Russian anticorruption policy
There are only some features of protecting whistleblowers in Russia. For example, the Department of Interior Security functions as the Investigation Committee of the Russian Federation. According to an Ordinance from 2011, this department is responsible for registration and reviewing reports by investigators who blow the whistle regarding their solicitation to corruption-related activity.
In Russia, there are general regulations concerning the protection of witnesses, regardless of relations to anti-corruption cases. Federal Law of August 19, 2004 N 199-FZ “On state protection of victims, witnesses and other participants in the proceedings” established general principles of protection for persons from the state. The Decree of the Russian Federation of November 11, 2006 N 664 named “On approval of the payment of lump sum benefits to victims, witnesses and other participants in the criminal proceedings, in respect of which in due course a decision on the implementation of state security.” The resolution of this detailed, outlined order receives payments on moving apartment through the Federal Agency for Health and Social Development, from the budget allocated to this special purpose. The prosecutor or investigator makes a decision on the payment but court accounts and affirms the proper sum, as much as they are authorized to order the protection of a witness or victim.
In 2009 the Decree of the President of Russia in the Ministry of Interior created The Office of the Safety of Persons Subject to State Protection. State protection shall be limited to users in the criminal justice (Article 2 of the Federal Law “On state protection of victims, witnesses and other participants in criminal proceedings”).
The only document that mentions whistleblower protection is a Presidential Decree from 5-th of April 2013. One point is dedicated to whistleblowers working in public service; another is about whistleblowers working in private sector. To whistleblowers in public service, the State guarantees prosecution protection from illegal dismissal. In case of whistleblowers working in private sector the State provides lawyers pro bona to help the whistleblowers. However the Act does not provide any legal status (procedure status) to whistleblowers:
a) a person acting for the position of a public body, the Central Bank of the Russian Federation, Pension Fund, the Social Insurance Fund, the Federal Mandatory Medical Insurance Fund, a state corporation (company), an organization created under the Federal laws, organizations created to carry out the tasks assigned to the federal government agency who reported to law enforcement or other government agencies or the media about the facts became known to him of corruption, disciplinary measures are applied (in the case of that person for a year after the communication, disciplinary offense) only upon the consideration of the question at a meeting of the commission to comply with the requirements of the official conduct and settlement of conflicts of interest. In that meeting, the commission may participate as a prosecutor. The chairman of the commission is the prosecutor supervising the observance of the legislation on public service or labor legislation, the necessary materials not less than five working days before the meeting of the committee.
b) members of the state system of legal aid referred to in paragraph 1 of Article 15 of the Federal Law of November 21, 2011 N 324-FZ “On free legal aid in the Russian Federation”, are obliged to provide legal aid pro bona to citizens in the preparation of reports on corruption, and in cases of violations of the legitimate rights and interests of citizens in relation to such messages.
To be honest, in 2011, the Ministry of Justice initiated a program on remunerations to whistleblowers. The Ministry of Justice has offered to “consolidate the legislature material rewards activity of citizens and organizations to help identify and prosecute corruption offenses by paying them as a reward a certain percentage of the amount returned to the budget.” But this program doesn’t come to work. However these laws don’t necessarily apply, because whistleblowers are often suspects of wrongdoing without having formal evidence and would not be able or willing to testify. Needless to say that according to the Criminal Code, false allegation is criminalized in Russia.
Obviously this is not enough. The case of lawyer Capital Hermitage S. Magnitsky who was murdered while in prison, and the case of A. Navalny, who is under the prosecution pressure demonstrate that Russian whistleblowers are basically unprotected from threats and illegal pursuit.
Criminalization of illicit enrichment and asset recovery
Currently, the implementation of Article 20 of the Convention continues to be debated. The general opinion is that the criminalization of illicit enrichment contradicts constitutional (Part 2 of Art. 49 of the Constitution of the Russian Federation), criminal-legal (Article 5 and 14 of the Criminal Code of the Russian Federation), and criminal procedural (Article 14 of the Code) principles of Russian legislature.
Yet, on 15.11.2001, the Constitutional Court of the Russian Federation (№ 277-O) stated that, in agreement with Part 1 of Art. 37 of the Constitution, everyone has the right to freely utilize their ability to work, and has the freedom to choose their occupation. However, this right does not assume that the State must provide employment to a citizen for a specific job. It is possible to strengthen the law, through creating special requirements for individuals to carry out certain activities in state and municipal entities. In the definition of 30.09.2004 № 299, “About the Constitutional Court”, it is further shown that the citizen, desiring to realize their constitutional right and acting in state and local governments, advances their public and legal status as an official. The citizen furthermore fulfills the applicable requirements in accordance with procedures established by law, which do not involve restrictions or violations of constitutional rights.
The above position allows the conclusion that none of the provisions of the Constitution of the Russian Federation and the fundamental principles of the domestic law of the Russian Federation shall prevent the spread of the jurisdiction of the Russian Federation with respect to offenses, established in accordance with Art. 20 of the UN Convention Against Corruption. Accordingly, the ratification of that article will enhance the fight against organized crime and the fight against corruption.
GRECO also recommended that Russia follow the practice of in remconfiscation – the seizure of an object (e.g., property) based on suspicions that it was obtained using proceeds of a corruption crime. Currently, Russian law only allows in persona confiscation – the seizure of an object from an individual based on proof that the object was obtained using proceeds of the crime for which the individual is on trial and/or convicted. Only a court may order in personam confiscation, and prosecutors have the burden of proving that the object was, in fact, obtained using proceeds from a crime. In anin rem action, prosecutors make a case against the object itself through the use of “legal fiction”, treating the object as though it were a person. Here, the individual would have to prove the lawful origin of the object.
An attempt to ‘legalize’ illicit enrichment of officials was made in federal law on December 3, 2012 № 230-FZ, “On the Control of the Relevant Costs of Persons Holding Public Office, and Other Persons Corresponding to their Income.” In accordance with article 17, the Prosecutor General or his subordinate prosecutors, after having obtained evidence for illicit enrichment by a public official (i.e. income of the public official, that exceeds income of the past three years), bring this evidence to the attention of the civil court. Thus, the burden of proof consists of an exchange of this information between the prosecution and the official that is under investigation.
J.D., Chief Lawyer
Transparency International – R