20 years under Putin: a timeline

On January 1, a new federal law designed to establish oversight over the expenditures of public officials and reduce the scope of corruption takes effect in Russia. IMR Advisor Ekaterina Mishina, a prominent Russian legal expert, warns against a rush to judgment and suggests that the effectiveness of the anti-corruption law can only be measured by its future enforcement.

 

 

I once heard a phrase that made me chuckle: “The fight against corruption in Russia should be made a criminal offense, since it essentially amounts to the crime of ‘undermining the foundations of Russian statehood.’” They say that every good joke is only partly a joke, and this one is no exception. Corruption has been intrinsic to the life of our state for centuries, regardless of the form of government. In Russian imperial times, the taking of bribes was so natural that no one ever even thought of fighting against it. In this regard, the main question that arose was not whether bribe-taking was right, but rather what to take to the official in question – did he accept money, borzoi puppies, or something else? During that historical period, the rule of thumb for bribe takers was “take according to your rank.”

Soviet-style corruption was totalitarian in nature and had two fundamental characteristics: the first was ubiquitous scarcity and the centralized distribution of existing resources; the second was an informal agreement between the central authorities and the regional elites – the latter demonstrated their loyalty to the former, who reciprocated by turning a blind eye to the corruption and abuses of the regional authorities.

Following the collapse of the USSR, corruption mutated, adjusting to the market, but higher education and the healthcare system remained the biggest pressure points. At the same time, new players emerged, such as businesses that introduced new forms of organization at various levels.

Recent research conducted by the Russian foundation Information Science for Democracy (INDEM) has made it possible to identify the fundamental characteristics of present-day Russian corruption and the objective trends of its continuing intensification. The most striking features and, at the same time, the causes of its growth are:

  • The bureaucracy’s effectively total impunity and the absence of any external control over its activities;
  • The specific character of Russia’s transition to a market economy and to a different political regime;
  • Historical precedents, primarily the use of corruption as a means of ensuring the loyalty of the bureaucracy, the Soviet tradition of a total lack of respect for private property, and the inclusion of judges in the system of state punitive agencies;
  • The weakness of civil society;
  • Shortcomings in Russian legislation in general and the enforcement of laws, with the main problem being selective application, resulting in the establishment of a “shadow,” quasi-judicial system that exists in parallel with the official judicial system;
  • The immense scale of Russian corruption and its impetuous rate of growth;
  • Russian society’s remarkable tolerance for corruption. In citizens’ view, corruption has long been a distinctly unpleasant, yet entirely natural phenomenon. Additionally, many believe that corrupt arrangements offer the best chance of rapid and effective interaction with the authorities, the result of which curtails any motivation among the majority of the country’s population to seek the support of anticorruption measures;
  • Corruption in law enforcement agencies has reached a stage, at which it presents a threat to national security. The corruption of officials, whose direct responsibilities include blocking the free movement of terrorists and any loads they are transporting, has facilitated the perpetration of a series of terrorist attacks on Russian territory;
  • Corruption creates a threat to the safety of the country’s population – and this is not just a matter of the corruption of our police (née militia), because of which most Russians are more afraid of a policeman than of a criminal. Venality in organizations expected to comply with established safety standards in areas such as construction, fire safety and child welfare has been responsible for a series of tragedies in which people lost their lives. Without the presence of corruption, these tragedies could have been avoided, averting the loss of human life.

 

According to World Bank experts, corruption in Russia affects 48 percent of the GDP

 

The most problematic point, in my view, is the fact that Russian corruption has developed into an immense institutional trap. A huge number of officials share the average citizen’s belief that the costs of attempting to counter corruption substantially exceed the losses inflicted by its existence. It is absolutely obvious that hard-hitting measures intended to limit corruption would inevitably entail a sharp increase in the effectiveness of the law enforcement agencies and the courts. Yet this would by no means be to everyone’s liking and, furthermore, would make the results of dispensing justice and applying the law less predictable.

Russian society is remarkably tolerant to corruption. In citizens’ view, corruption has long been a distinctly unpleasant, yet entirely natural phenomenon.

The Russian statutory and regulatory framework for countering corruption appears extremely impressive. The first harbinger of developments in this area was the 1997 Concept of National Security, which noted that serious mistakes committed in the initial stage of introducing reforms had facilitated the growth of corruption in the country. In the Strategy of National Security adopted in 2009, the development of a framework of anti-corruption legislation was mentioned as one of the priorities. Strategic considerations were reflected in the July 31, 2008 National Plan for Countering Corruption, and the initial version of that document also considered measures for the prevention of corruption, including the following:

  • The establishment of special requirements for judicial office and positions in the state civil service;
  • The introduction of public and parliamentary oversight of the observance of anticorruption legislation;
  • Expert anti-corruption appraisal of normative legal acts;
  • The introduction of a formal obligation for state and municipal employees to report instances of corruption and other similar violations of law, of which they become aware while performing their official duties;
  • The introduction of anti-corruption standards (a unified system of prohibitions, limitations, obligations and authorizations intended to prevent corruption).

The next important stage was Federal Law # 273 “On Countering Corruption” (from December 25, 2008), which defined the key concepts in this sphere and envisaged a series of anti-corruption measures. Although this is a framework law that includes a number of referenced legal norms and declarative provisions, it has helped to fill a substantial legislative lacuna and represents the first time that the struggle against corruption is enshrined in Russian federal law. The defects of this law include, in the first place, an excessively narrow legislative definition of corruption and, in addition, the fact that a number of corrupt actions that are recognized as such in most foreign countries (for instance, corruption in the area of lobbying) are not offenses punishable under law according to the Russian legislation.

In 2009, the authorities focused their attention on expert anti-corruption appraisal1. From then on, a key role in this sphere was assigned to two departments – the Prosecutor’s Office and the Ministry of Justice, pompously referred to as “the federal agency of the executive authority in the sphere of justice.” It is now the responsibility of prosecutors to conduct an expert anti-corruption assessment of normative legislative acts with reference to the rights, freedoms and obligations of the individual and the citizen, state and municipal property and state and municipal posts, as well as a broad spectrum of spheres of legislative regulation, including, for instance, taxation and budgetary legislation and also the legislation on licensing. The Ministry of Justice has been assigned with the function of conducting expert anti-corruption assessments of drafts of legislative acts, presidential decrees and ordinances of the federal government. The law provides for the possibility of independent expert anti-corruption assessment by institutions of civil society and citizens at their own cost and expense; such independent experts are subject to accreditation by the Ministry of Justice, and their conclusions are recommendatory in nature.

Presidential Decree # 460 from April 14, 2010, approved a new version of the National Strategy for Countering Corruption and set forth a revised National Plan for Countering Corruption. After that, the market of legislative regulation of measures for countering corruption was becalmed, until the lull was broken this year.

On January 1, 2013, Federal Law # 230 “On Verifying the Correspondence of the Expenditure of Individuals Occupying State Posts and Other Individuals to Their Levels of Income” and a number of related amendments to the current legislation will come into force. The explanatory note to the packet of legislative measures contains an elegant formulation: “The proposed measures will facilitate a substantial reduction in the attractiveness of corrupt behaviour and thereby effect a genuine improvement in the effectiveness of the anti-corruption mechanism.” The new law establishes the legal and organizational foundations for verifying “the correspondence of the expenditure of an individual occupying a state post (or other individual), the expenditure of his wife (or her husband) and their under-age children to the total income of the given individual and his wife (or her husband) for the three years immediately preceding the conclusion of a transaction” (Art. 1). The law also extends to individuals occupying state posts at the regional level, members of the Board of Directors of the Central Bank, individuals occupying posts in the Central Bank, a number of state corporations, the Pension Fund, the Social Insurance Fund, and other individuals specified in Article 2 of the law, and likewise to their spouses and under-age children. In addition, the list includes the President, members of the federal government and both houses of the Federal Assembly, judges, members of regional legislatures, their spouses and minor children.

The way in which the legislation is formulated offers extensive opportunities for arbitrary interpretation: for instance, it is entirely unclear what is “sufficient information.” And who determines that it is “sufficient”?

The decision to undertake verification is taken on the basis of information received in writing from a wide range of sources, beginning with the law enforcement agencies and ending with the governing bodies of political parties and the national mass media (Art. 4). The authority to undertake the verification of expenditure is held by a large number of agencies and their officers. Failure to provide information requested for purposes of implementing such verification of the correspondence of expenditure to income is an offense, and those guilty of such an offense are liable to be dismissed from the post that they hold. And if, in the course of verifying the expenditure of an individual specified in Article 2, evidence of a crime, or of an offense, administrative or other, is uncovered, the information obtained as a result of the verification process is forwarded to the right place, i.e. to the Prosecutor’s Office. The next step is the forwarding to a court, by a prosecutor of the appropriate level, of an application for the forfeiture to the state of any parcels of land and other real estate, means of vehicular transport, securities, etc. concerning which no information has been provided to demonstrate that they were acquired with legal income.

Discussion of the quality of this law is still premature – it has not yet come into effect. But, being aware of our leaders’ tendencies regarding the application of law, along with their aptitude for transforming even the most progressive legal provision into something “strange and monstrous”, I, like Iskander’s python, can only see a bleak and gloomy future2. In addition, the way in which the legislation is formulated offers extensive opportunities for arbitrary interpretation: for instance, it is entirely unclear what is “sufficient information.” And who determines that it is “sufficient”? On the other hand, credit is due to our dear lawmakers for the fact that “information of an anonymous character cannot serve as the basis for implementing the verification of expenditure …” (Art. 4) The range of selected agencies and officials empowered to make a decision to undertake such verification also fails to arouse optimism – it is well-known that too many cooks spoil the broth. But, let me repeat, we will only be able to say anything about the quality of this law after it comes into force on January 1. Perhaps it will be a New Year’s present for the Russian people. And since everyone expects miracles from every New Year, just maybe something wonderful and unexpected will happen. Could the implementation of this law really prove to be an effective anti-corruption measure? “And in response to that, Sir Dragon directed me to tell you: ‘We'll see about that!’”3 We do not have much longer to wait.

 


1 Federal Law “On the Expert Anti-Corruption Appraisal of Normative Legal Acts and Drafts of Normative Legal Acts” (July 17, 2009); Decree # 400 of the Prosecutor-General’s Office (December 28, 2009); and Ordinance # 96 of the Government of the Russian Federation (February 26, 2010)

2 From Fazil Iskander’s tale The Rabbit and the Python

3 From Evgeny Shvarts’s play The Dragon

Russia under Putin

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