In early June, the Prosecutor General’s Office published a draft law “On Amendments to the Legislation of the Russian Federation to Strengthen Responsibility for Corruption.” IMR legal expert Ekaterina Mishina analyzes the proposed changes.
A bribe of less than $100 is not considered a bribe.
It is a verbal appreciation.
—Proverb
Joy recently came into our lives from an unexpected quarter: the Prosecutor General’s Office. One must agree, the Prosecutor General’s Office is not often a source of celebration or fireworks. And now, all of a sudden, this “Eye of the Tzar” has prepared a draft law to strengthen responsibility for corruption and has posted it on its website together with an explanatory note.
The need to impose stricter penalties for corruption offenses is due to the high risk such acts present to the public in general, and to the Russian mentality in particular. Studies conducted by the INDEM (“Information Science for Democracy”) Foundation clearly show that Russian society is surprisingly tolerant of corruption. The majority of the population considers corruption not a crime, but rather a kind of necessary evil, something like a seasonal flu or a heavy rain accompanied by hail. What can you do, it happens, c’est la vie—this is the general outlook. This super-tolerance manifests itself in legislators’ rather lenient attitude toward corruption offenses.
To begin with, the very intention behind this step of the Prosecutor General’s Office is laudable—it intends to implement those recommendations of the Group of States Against Corruption (GRECO) that were formulated based on the results of a third round of evaluations on “Criminalization of Criminal Acts.” The goal of harmonizing the Russian Federation’s legislation with international standards in the area of fighting corruption and with the 1999 provisions of the Convention of the Council of Europe on Criminal Responsibility for Corruption can only receive wholehearted support from the populace.
The draft law contains a few valuable and timely ideas. For example, it proposes to change the disposition of Articles 204, 290, and 291 of the Criminal Code by incorporating the concepts of “offer, promise of and request for an advantage,” as well as “accepting a proposal or promise.” The introduction of these concepts (namely, the provisions on active and passive bribery) into the national criminal legislation is included in GRECO Recommendation III.
The explanatory note to the draft law states that according to GRECO Recommendation IV, the scope of the Criminal Code’s provisions on bribery needs to be expanded to expressly cover any form of undue advantage, including any intangible benefits, regardless of whether they have a measurable market value. For this purpose, the law proposes that Articles 204 and 290 of the Criminal Code be amended by adding a reference to the receipt and provision of nonmaterial services, non-property rights, or other undue advantages.
Pursuant to Recommendation V, the draft law significantly modifies its interpretation of bribery to expressly cover all cases in which the benefit is intended not for the official in question, but for a third person, either an individual or a legal entity.
Another fundamentally important innovation is offered in accordance with Recommendation VI. According to the current Russian Criminal Procedure Court, if “an act envisaged by Chapter 23 of the Criminal Code of the Russian Federation has inflicted damage upon the interests of an exclusively commercial or another kind of organization that is not a state or a municipal enterprise or organization with the State or municipality’s participation in the authorized (share) capital (mutual fund), while not inflicting damage upon the interests of other organizations or upon the interests of the citizens, of the society or of the state, the criminal case shall be initiated upon application from the head of the given organization or with his consent”. To increase the scope of prosecutable bribery offenses that inflict damage upon the interests of a commercial organization, the Prosecutor General’s Office proposes to eliminate Article 23 (“Criminal Prosecution upon Application of a Commercial or Other Organization”).
The majority of the population considers corruption not a crime, but rather a kind of necessary evil. This super-tolerance manifests itself in legislators’ rather lenient attitude toward corruption offenses.
Another proposed innovation concerning “undue influence” is included in the draft law pursuant to Recommendation VII. “Undue influence” is here understood to mean the illegal transfer, or promise to transfer, to an individual of money, securities, other assets, property or non-property services, property or non-property rights, or other undue advantages whereby the individual or other individuals may influence the decision-making of an official, a foreign official, or an official of a public international organization. An agreement by an individual to influence a national or foreign official’s decision-making in exchange for a consideration is punishable by a large fine and/or forced labor or imprisonment for up to three years.
The draft law further proposes to toughen penalties related to bribery (Parts 1 and 2 of Article 291 of the Criminal Code) in order for this criminal offense to be reclassified under the category of crimes of medium gravity. Under Article 15 of the Criminal Code, crimes of medium gravity are “intentional acts, for which the maximum punishment provided by this Code, shall not exceed five years’ imprisonment, and negligent acts for which the maximum punishment provided by this Code, shall not exceed three years imprisonment.” At the same time, in accordance with GRECO Recommendation VIII, the law proposes to increase the minimum two-year statute of limitations for bribery crimes.
In addition, the law proposes to amend the Criminal Code by adding a new article on “Bribery of Arbitrators.” The title of this article reflects its content in somewhat truncated form, because it concerns not only the transfer, but also the receipt, of tangible and intangible benefits. The proposed wording is so important that I will here offer a rather lengthy excerpt from the text, which defines the corruption of an arbitrator as “illegal transfer to the arbitrator, as well as acceptance by an arbitrator of money, securities or other assets, provision of property or non-property services for the benefit of the arbitrator, provision of other property or non-property rights, and other illegal benefits, including when specified property or other benefits are intended for any particular individual or entity, as well as an offer to accept or a promise to provide money, securities, other assets, property or non-property services, property or non-property rights, or other illegal benefits, to the arbitrator, including when such assets or other benefits are intended for another individual or entity for the use by the arbitrator of his powers in the interests of the bribe-giver or other person contrary to the objectives of his activities.”
Whether such acts are committed by a group of individuals by prior conspiracy, by an organized group of individuals, in exchange for knowingly illegal actions (or inaction), or for the end of extortion of the object of bribery, the draft law establishes very tough sanctions. Depending on the severity of the offense, possible penalties include considerable fines with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years, forced labor for a term of up to five years with or without the above incapacitation, and imprisonment for up to twelve years (in some cases in conjunction with a considerable fine).
Well done, General Prosecutor’s Office! Thank you. Much appreciated. But you should not stop there. The draft law addresses arbitrators, but it is important to not forget about judges vulgaris—that is, general jurisdiction judges. The general population will fervently support a draft law that proposes to include in the Criminal Code yet another article, “Corruption of Judges,” because the treatment of judges in the current version of the Criminal Code is clearly insufficient. For example, Article 184 concerns the corruption of referees; Article 202 the abuse of power by private notaries and auditors; and Article 309 the corruption of witnesses, experts, specialists, and interpreters. And what about judges? The relevant legislation is as follows: Article 305, “Knowingly Giving an Unjust Judgment, Decision, or any Other Juridical Act”; Article 285, “Abuse of Official Powers”; and Article 290, “Bribe-Taking.” These measures are still not enough. It somehow seems not entirely fair to consider a proposal to create a special article for arbitrators without creating one for judges. Are arbitrators better than judges? Not really. Judges are also worthy of a separate article in the Criminal Code.
