Besides public officials being the on-going focus of changing anti-corruption legislation in Russia, the private sector also became a target of legal regulation in this field. Since 1 January 2013 organisations are under a statutory duty to implement measures to prevent bribery and corruption. Other than a list of six possible general courses of action in the anti-corruption law, there was no specific guidance for non-public organisations to refer to.
As instructed by President Putin in April 2013, the Russian Ministry of Labour and Social Protection has now issued guidelines on the development and implementation of anti-corruption measures (the “Guidelines”). The Guidelines are available in Russian on the Ministry’s website.
Essence of the Guidelines
The Guidelines provide the following eight principles for bribery prevention:
- conformity of an organisation’s anti-corruption policy with current legislation and generally accepted rules;
- top-level commitment by setting an example;
- staff involvement;
- proportionate anti-corruption measures;
- efficiency of anti-corruption measures;
- liability and inevitability of sanctions;
- business transparency; and
- constant control and regular monitoring.
The Guidelines’ recommendations on how to elaborate and implement an anti-corruption policy contain (somewhat unsurprisingly given that they were drafted by the Ministry of Labour and Social Protection) a strong employment perspective. Therefore, in addition to standard compliance measures (e.g. internal as well as external monitoring and control procedures), the Guidelines describe in detail measures mainly directed at employees such as:
- introducing a Code of professional ethics and conduct;
- implementing regulations on conflicts of interest;
- including anti-corruption provisions in employment contracts and internal work regulations; and
- ensuring that employees complete declarations on any conflicts of interest.
Other Guideline recommendations apply to organisations’ dealings with suppliers and customers, and in particular:
- implementing internal corruption due diligence procedures; and
- communicating anti-corruption standards and procedures to counterparties and including anti-corruption provisions in commercial contracts.
The concept behind the Guidelines is very similar to the British Government’s Statutory Guidance issued alongside the UK Bribery Act of 2010.
Under UK law, organisations that fall under the legislation are strictly liable for failing to prevent a bribery offence where it takes place, with the sole legal defence being proof that it had “adequate procedures” in place designed to prevent such bribery on its behalf. The Russian approach is different from the point of view that it is a legal requirement to have such procedures so that non-compliance can be prosecuted whether or not there is an actual bribery offence.
Aside from that, however, the non-prescriptive nature of the UK guidance on such procedures, has much in common with the Russian Guidelines and, indeed, the Russian ‘eight principles’ are very close to the UK’s ‘six’. This is likely to mean that organisations that have already introduced procedures in line with the UK legislation are likely to be well placed already to comply with Russian law. Russian law though is not identical, and a legal audit still needs to occur to ensure that organisations do indeed comply.
In this context, the issue of the Guidelines will certainly be a useful reference document to measure against when conducting this type of audit.
That said, organisations should be cautious when assessing how their anti-corruption procedures match the Guidelines and what adjustments, if any, to make. This holds particularly true in respect of possible changes to employment contracts and internal work regulations, mainly because:
- the Guidelines have no prescriptive value;
- blank implementation of the Guidelines’ provisions may result in non-compliance with labour legislation (in particular provisions on disciplinary measures and dismissal); and
- prior approval by trade unions of internal work regulations designed to implement measures that form part of an anti-corruption policy may be required.
Similarly, anti-corruption provisions to be included in commercial contracts should also be verified as to their compliance with legislative provisions.