The mid 2000’s produced a number of significant anticorruption developments, the impact of which are still being felt in the Russian Federation. Significant events include the ratification of numerous international conventions aimed at fighting corruption, such as the UN Convention Against Corruption in 2006 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 2012, as well as a number of national legislative measures introduced as part of the government’s anticorruption programme. Corruption-related offences set out in the Russian Criminal Code include receiving a bribe (Article 290); bribing an official (Article 291); and commercial bribery (Article 204).
Notwithstanding these broad legislative measures, the public perception of corruption, as reflected in international rankings, suggest that much remains to be done to fight corruption in Russia effectively. In Transparency International’s Corruption Perceptions Index 2013, Russia was ranked 127 out of 177 countries. The foremost factor weakening the effective implementation and enforcement of Russia’s strict regulatory sanctions appears to be the judiciary. Statistics suggest that court practice in Russia is unpredictable and uncertain.
Most recently, with effect from 1 January 2013, Russia enacted amendments to Federal Law No. 273-FZ “On Preventing Corruption”. Article 13.3 of the amended law requires organizations to develop and implement anti-corruption measures including adopting specific anticorruption procedures. The law does not establish sanctions for failure to implement the requirements of Article 13.3, however, companies may nevertheless be liable for failing to adopt measures in furtherance of the Code of Administrative Violations. Some commentators have suggested that this most recent enactment represents a key development in anticorruption enforcement in Russia. However, as this briefing will indicate, the effectiveness of these measures may be impeded by a lack of proactive enforcement on the part of the Russian law authorities.
Anti-corruption in Russia: the statistics
The Supreme Court of the Russian Federation has published its statistics for the first half of 2013. These results include statistics focusing on corruption-related cases, and show a marked difference between the prosecution of private citizens and state officials: ordinary citizens, it would appear from the statistics, are much more active in bribing than state officials are in receiving bribes. For the period of time covered by the statistics more than 1,300 citizens were convicted of giving bribes, while only 544 state officials were convicted of receiving bribes.
These statistics demonstrate a key discrepancy in the enforcement of anti-corruption measures in Russia. While the general number of sentences for corruption-related offences has not increased, the judiciary still faces significant challenges in convicting state officials. The result is a disparity between the prosecution of citizens and state officials of almost 2.5 times. As a matter of basic legal principles, however, as well as common sense, corruption-related cases cannot exclude a bribe taker.
Ninety-eight of 1,300 citizens were sentenced to up to ten years imprisonment, while only 18 state officials received the same sentence. In most cases, those convicted are usually sentenced to a large fine, calculated as a multiple of the size of the bribe, or to a conditional term of imprisonment.
The growth in the number of corruption-related cases may be attributed to the serious growth in political activity. However, according to the Supreme Court, the possibility of proceedings continuing from previous years should be borne in mind when analyzing these statistics.
The conduct of investigations in Russia
Members of the Russian judiciary have attributed the disparity between the prosecution of state officials and citizens to the specific investigation procedures which are exercised in respect of the charged state officials which are designed to lead to better quality investigations.
In order to initiate an investigation it is necessary to receive information that some state official has received bribes. It is difficult for prosecutors to prove the receipt of bribes, although some practices have already been developed in Russia to address the problems associated with the investigation of bribery offences – for example, through the use of specially-marked banknotes, wiretap, and/or installation of cameras. The recipient of the bribe must also be apprehended at the place where the crime has been committed.
Furthermore, officials have more recently demonstrated a preference to receive bribes by way of various services, goods or other a non-cash forms. If money is used to bribe then a chain of intermediaries is likely to be involved. For example, huge sums of bribes are often transferred to offshore companies in the form of kickbacks. These practices serve to illustrate the type of obstacles that may impede the investigation and prosecution of those corruption-related cases involving state officials.
Many experts have, for such reasons, criticized Russia’s campaign against corruption as amounting to little – although experts have also recognized that progress can be seen through the very fact that recent statistics have started to provide separate data on corruption-related crimes committed by state officials and private persons. This is an important step as executive bodies such as the Ministry of Internal Affairs and the Investigation Committee only publish statistics on corruption-related offences in general.
Commentators have suggested that police officers generally only compile statistics based on small cases of bribery – perhaps in an effort to highlight the efficiency of a particular police department at fighting corruption. Some lawyers have also speculated that policemen provoke a person to give a bribe, and then bring an action under Article 291 of the Criminal Code. The danger of such an approach is that Articles 290 and 291 of the Russian Criminal Code formally have no minimum threshold for the size of a bribe, and therefore a criminal case can be brought in respect of a bribe as little as 1 ruble. Almost all cases heard by the district court in Moscow relate to bribes ranging from 500 to 5,000 rubles (approximately £10-100).
Examples in practice
Such practice can be seen in the context of road inspections. A common scenario involves road inspection officers stopping drivers on roads for breaking the traffic rules. Of those charged, there are likely to be a number of people who will try “to resolve the issue” by payment of a small bribe. When the driver reaches out to pay money to the road inspection officer, investigators then appear, detain him and transfer the materials to the Investigation Committee where criminal proceedings are initiated against the driver for bribing a state official. The same scenario is often re-rehearsed against small traders and migrants.
A further case which was broadly discussed in the Russian media this year involves a situation where a doctor had already been convicted of receiving 50 rubles (around £1) for issuing a sick-list.
Recently enforcement officers in Russia have lost a large share of potential “clients”. The Supreme Court of the Russian Federation has issued guidance that teachers and doctors are no longer within the category of state officials, and therefore it is impossible to bring criminal charges against them for receiving bribes. It has been stated that the bribe itself should be connected with the representation of a governing body of a business entity or a state service. In practice, therefore, even if enforcement officials start criminal proceedings against teachers and doctors, the court will be bound by the Supreme Court guidance and will not sentence doctors and teachers for receiving bribes.
While the media and general publicity in Russia are discussing the new laws on fighting bribery in Russia, serious concerns remain. Primary among these concerns is the lack of effective enforcement and prosecution of corruption offences. The absence of strict enforcement is therefore still the most powerful obstacle impeding anticorruption policies from being duly implemented. Until Russia’s legislative developments and enforcement mechanisms move in tandem it is likely that corruption will remain a serious concern for companies and individuals in the country.