Once again about a corruption disciplinary offense and issues of dismissal due to loss of trust of a civil servant

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The article was prepared with the information support of the Consultant Plus Company 

The issues of ensuring legality and discipline do not lose their relevance, relevant work is carried out in a variety of areas, in particular, it concerns the fight against corruption and corruption offenses. Corruption and corruption offenses are not identical categories. It should be noted that corruption is a socio–legal phenomenon, in particular, involving a variety of offenses. As K.S. Belsky noted, "... corruption is a system of actions of a civil servant carried out through the misuse of power, including by providing protection to relatives and brothers–in-law for personal enrichment or strengthening personal power in return for providing certain services to others" ^[1].

As you can see, in this definition there is no direct reference to corruption crimes, in particular bribery, which suggests that most corruption offenses are administrative and disciplinary offenses. In this regard, from a practical point of view, it is important to have an idea of how to understand such a category as "disciplinary corruption offense".                         

It is noteworthy that in the system of legal means of combating corruption in official and labor relations, disciplinary measures have recently become widely used, for example, dismissal due to loss of trust and other disciplinary penalties. Disciplinary measures in the form of disciplinary penalties are applied only on one basis, namely the commission of a disciplinary offense, in our case, a corruption disciplinary offense. It should be noted that the legislation uses the term "corruption offense". So,  Federal Law of November 30, 2011 "On Service in the Internal Affairs bodies of the Russian Federation" determines that "... a penalty in the form of a remark or reprimand may be imposed on an employee of the internal affairs bodies if the corruption offense committed by him is insignificant" (Article 51.1). It is noteworthy that the Federal Law of July 27, 2004 "On the State Civil Service of the Russian Federation When regulating relations related to combating corruption in the service with disciplinary measures, it also does not contain the term "corruption offense", but simply uses the category "offense".     

In particular, the law states that "failure by a civil servant to provide information about their expenses, as well as about the expenses of their family members, or to provide deliberately incomplete information is an offense entailing the dismissal of a civil servant from the civil service" (Article 20.1).

From this it can be concluded that the term "corruption disciplinary offense" actually exists, both in doctrine and in law enforcement practice, and the legislation simply ignores this construction. It seems that this approach is not entirely correct. In this regard, we will consider a number of points of view regarding a corruption offense in general and a corruption disciplinary offense in particular. Thus, the term "offense" is the basic category for the doctrine of legal responsibility and punishment, the designated definition is a general, collective one. Here are some points of view from the doctrine regarding the concept of "offense". The most comprehensive definition of an offense looks like this: "an offense is a socially dangerous, culpable, illegal act that harms a person, property, the state or society as a whole" ^[2].

When characterizing an offense, its signs are often indicated "... the starting point, and determining for understanding the essential in the offense is the idea that it is characterized by social harmfulness and illegality" ^[3].

In the doctrine as a whole, there are similar points of view regarding the concept of "offense and its signs", the theory of this issue has been developed very meaningfully, however, despite this, the current legislation does not accept theoretical definitions to the extent that law enforcement practice needs.           

Also note that the Constitution of the Russian Federation uses the term offense several times. The Constitution stipulates that "... everyone has the right to a favorable environment, as well as to compensation for damage caused to his health or property by an environmental offense" (Article 42).  The Constitution also says that "... no one can be held responsible for an act that was not recognized as an offense at the time of its commission, if after the commission of the offense responsibility for it is eliminated or mitigated, a new law is applied (art. 54). Thus, the term "offense" has been elevated to the constitutional level as a whole without the relativity of its type and industry affiliation, except for the indication, as it was said, of an "environmental offense".

The law also uses the term "offense". Thus, the Federal Law of June 23, 2016 "On the basics of the crime prevention system in the Russian Federation" stipulates that "an offense is a crime or an administrative offense, which constitute illegal acts (action, inaction) that entail criminal or administrative liability" (art. 2). This law in the content of the offense includes only: a crime and an administrative offense.   In turn, the Federal Law of December 25, 2008                 "On combating corruption" refers to a "corruption offense", in the context of the corresponding duty of a civil servant. Thus, according to this law, "a civil servant is obliged to notify about appeals in order to incite him to commit corruption offenses" (Article 9). A corruption offense is not only a crime or an administrative offense, but also other acts.          M.M. Polyakov noted at the time that "... according to the degree of socially dangerous consequences, all corruption manifestations can be divided into two large groups: corruption crimes and corruption offenses, including corruption civil law offenses, corruption disciplinary offenses, as well as corruption administrative offenses" ^[4].

As noted by E.V. Maryina, "... the category of "corruption offense" has an intersectoral character and includes a corrupt administrative offense; a corrupt disciplinary violation; a corrupt civil offense; a corrupt unethical violation entailing disciplinary responsibility and a corruption crime" ^[5].         

The separation of corrupt unethical behavior from the system of disciplinary offenses seems correct from a theoretical point of view, but from a practical point of view it is not always advisable. Violation of the norms of professional and official ethics, the requirements for official behavior may have a corruption motivation, this may in particular be expressed in violation of prohibitions, restrictions and obligations established in order to combat corruption. It must be said that some ethical norms, based on their social and professional importance, have acquired a legal status and have become mandatory. In this context, one can cite as an example the "Model Code of Ethics and Official Conduct of Civil Servants of the Russian Federation and Municipal Employees", which was approved by the decision of the Presidium of the Council under the President of the Russian Federation on Combating Corruption on December 23, 2010. Issues of public service ethics and professional conduct are given quite serious attention. As V.D. Popkov wrote at the time, "... all criminal acts committed by employees of the state apparatus are at the same time violations of moral norms, i.e. immoral actions, they are condemned by the state and public opinion" ^[6].

The indicated approach interprets unethical violation quite broadly, while it should be noted that violation of ethical norms does not always have a legal character. In the system of disciplinary misconduct, it does not always seem necessary to single out unethical violations, including those of a corrupt nature, into a separate group. In this regard, such a category as a "corruption disciplinary offense" includes a wide variety of offenses that are disciplinary in nature and for which disciplinary measures are applied.

Corruption disciplinary offense is a fairly new phenomenon, it appeared with the development of anti-corruption legislation, especially with the advent of such a disciplinary penalty as "dismissal due to loss of trust." Despite some specifics of a corruption disciplinary offense, this violation is a type of disciplinary misconduct in general. Being a kind of disciplinary offense, a corrupt disciplinary offense has certain differences of a subjective order. A corruption disciplinary offense is often committed with direct intent, for example, in order to hide the fact of unjustified enrichment, the fact of receiving funds for which the corresponding expenses were incurred, this offense is committed in order to hide the fact of the existence of the relevant property, etc.

Please note that the legislation has recently consolidated the provision that "an act that is committed unintentionally is not a corruption offense. Today, "a civil servant is relieved of responsibility for non-compliance with restrictions and prohibitions, and non-fulfillment of duties established by law in order to combat corruption, if non-compliance with such restrictions, prohibitions and requirements, as well as non-fulfillment of these duties is recognized as a consequence of circumstances beyond his control."  

Despite this provision, when analyzing a "corrupt disciplinary offense" one way or another, it is necessary to start from the concept of "disciplinary misconduct". Let us note that in the history of legislation on public service there was a period of time when the term "official misconduct" was used in legislation. It should be noted that this is not a very successful legal construction, since "official misconduct" is an integral part of "disciplinary misconduct".

Next, let's look at how such a category of "disciplinary misconduct" is understood. As A.P. Korenev wrote, "... the basis for bringing an employee to disciplinary responsibility is a disciplinary (official) misconduct, that is, a culpable violation of the rules of public service, non–fulfillment or improper performance of official duties, omission of official discipline" ^[7]. Of course, a disciplinary offense is a violation of official discipline.

A disciplinary offense is a negative official action. It is from these positions that K.S. Belsky evaluates disciplinary misconduct. Thus, the designated author writes that "... negative official actions form the guilty behavior of a civil servant, they are an offense" ^[8].

As the author writes, "the structure of negative official actions includes: failure to fulfill their duties, negligent or partial fulfillment of them, abuse of authority, misuse of power, corruption, negligence, etc. A special place among negative official actions is occupied by managerial decisions that are correct in form, but erroneous in essence, and which have brought significant social harm to society. No one is often responsible for these decisions, which creates a situation of irresponsibility" (p. 41).  The thesis is true that unreasonable formalism in managerial work often leads to the wrong result, which is necessary for the case. Contradictions and conflicts in regulatory regulation provoke violations of legal norms, as well as determine various abuses, and this behavior of an employee is often not assessed as a disciplinary violation. Moreover, legal uncertainty also contributes to various kinds of violations and arbitrary assessment of a management event.                 

E.V. Klimkina notes that "... a disciplinary offense is an unlawful, culpable failure or improper performance by a civil servant of official duties assigned to him by laws and other normative legal acts, an official contract and official regulations, for which an authorized person is obliged to apply disciplinary punishment provided for by law" ^[9].    

In turn, M.B. Dobrobaba writes that "...a disciplinary offense should be defined as a guilty, illegal act of a civil servant, which consists in non-performance or improper performance of official duties, for which a disciplinary penalty may be applied to a civil servant" ^[10].

The designated definitions of disciplinary misconduct are quite similar, in the first case, the author indicates that an authorized person is obliged to apply disciplinary punishment for official misconduct, another author says that disciplinary punishment may be applied to a civil servant for committing misconduct. An analysis of the current legislation made it possible to conclude that there is no direct obligation to impose a disciplinary penalty for committing a disciplinary offense, which cannot be said about the situation related to the commission of a disciplinary corruption offense.  For example, the Federal Law of November 30, 2011 "On service in the internal affairs bodies" defines that "... the head, who became aware of the personal interest of his subordinate, is subject to dismissal due to loss of trust, if he does not take measures to prevent this conflict" (Article 82.1). 

 The above definitions of "disciplinary misconduct" are generally widespread, it is obvious that only the guilty person can be brought to disciplinary responsibility, disciplinary misconduct is expressed in violation of official discipline, official duties. This act can be expressed in action and inaction, however, disciplinary punishment is not always applied to the guilty person, and without such an impact, a legal assessment of what has been done cannot be given. The question arises why disciplinary punishment is not always applied when committing a disciplinary offense. 

As noted by A.L. Yusupov in relation to the implementation of such a disciplinary penalty as "dismissal due to loss of trust", "... the norms establishing the very possibility of loss of trust and the consequences associated with it, by their nature, create risks for corruption. They allow the subject of disciplinary authority not only to dismiss an objectionable civil servant, but also to leave the real violators of anti-corruption legislation virtually unpunished" ^[11]. 

The norms governing relations caused by disciplinary practices, in particular those related to the application of penalties for corruption disciplinary offenses, contain very serious legal uncertainty. This circumstance requires their drastic improvement.              

E.L. Leshchina gives her definition of "disciplinary misconduct", in particular, the designated author writes that "... disciplinary misconduct of a civil servant is an unlawful, culpable, persistent violation of official discipline by civil servants, non–compliance with established prohibitions and restrictions, which, in accordance with the legislation, entail the use of disciplinary coercion measures" ^[12].

It should be noted that in this definition, the emphasis is placed on the fact that disciplinary misconduct is not criminal behavior, i.e. it is an act that does not pose a great public danger. Although explanations are needed here. With regard to a disciplinary corruption offense, it is impossible to say so unequivocally. Thus, for committing a significant disciplinary offense, such a penalty as "dismissal due to loss of trust" is applied and the person dismissed on this basis is placed in the register of those dismissed for loss of trust and remains in it for five years. This punishment is quite severe, and cannot be applied for a disciplinary offense that does not pose a danger. In this regard, S.A. Shushpanov notes that "... a malicious, illegal, guilty act is considered an official misconduct, for which the legislation provides for disciplinary liability. This also implies four of its common features, which are inherent in all offenses that are the basis of disciplinary responsibility: public danger (the presence of harm and its public assessment); illegality; guilt; disciplinary punishability" ^[13].

As it seems, all these signs are inherent in a corrupt disciplinary offense. As A.L. Yusupov notes, "a corruption disciplinary offense is the failure or improper performance by a civil servant or a person holding a public position, through his fault, of the duties assigned to him, non-compliance with prohibitions and restrictions established in order to combat corruption, for which disciplinary liability is provided in the official legislation" ^[14].

This definition correctly indicates the culpability of committing a corrupt disciplinary offense, it is very important to take this into account, there are cases when disciplinary measures were often applied formally based on the fact of the event itself, which is not entirely true. The requirements of the anti-corruption legislation may be violated in a disciplinary manner due to negligence, negligence or circumstances that do not depend on the civil servant himself. And in this case, the employee should not be brought to disciplinary responsibility.

R.S. Sorokin presented a very meaningful position on the disciplinary corruption offense. In particular, the designated author highlighted: "corruption offenses, including: illegal activities to conceal other corruption offenses, as well as the creation of conditions for the free use of their results. He also pointed out offenses in the field of anti-corruption, including: violations of prohibitions and restrictions, failure to fulfill duties established for the prevention of corruption; corruption offenses related to failure to provide information, as well as the submission of incomplete and unreliable information, the mandatory disclosure of which is established in the anti-corruption legislation" ^[15].    

From this position, it can be concluded that disciplinary corruption offenses can be considered in a broad and narrow sense. In particular, the relevant offenses may be aimed at concealing a corruption crime, for example, the fact of receiving a bribe, or another crime, as a result of which the employee unreasonably enriched himself. In this case, a corruption disciplinary offense poses a significant danger, with all the consequences that follow from this. A corrupt disciplinary offense may have an "autonomous disciplinary status" and various liability measures may be applied for its commission, depending on the content of the violation, including dismissal due to loss of trust. Disciplinary corruption offenses are of varying degrees of danger, culpable violations of anti–corruption legislation, for which measures of responsibility or other disciplinary action are provided in order to strengthen the rule of law and discipline.         

A very important thesis follows from the current legislation that "corruption disciplinary offenses" can be divided according to various criteria.  Thus, the Federal Law of November 30, 2011 "On service in the internal affairs bodies" says that "... a penalty in the form of a remark or reprimand may be imposed on an employee of the internal affairs bodies if the corruption offense committed by him is insignificant" (Article 51.1). In turn, the Federal Law of July 27, 2004 "On State Civil Service" defines that "a penalty in the form of a remark may be applied to a civil servant if the corruption offense committed by him is insignificant" (Article 59.3).

Thus, the legislation on public service uses such a category as a "minor corruption offense", for which a penalty is applied that is not related to the dismissal of a civil servant. In this regard, it is very important to have criteria that relate a corruption offense to one type or another.               S.E. Channov points out that "... in some cases, "corruption offenses" that are not really related to the commission of corrupt acts may, in the presence of mitigating circumstances, be considered insignificant" ^[16]. 

The concept of "insignificance" does not contain official legislation, in this regard, let's see how the concept of insignificance is interpreted in relation to an administrative offense.  The resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 No. 5 "On some issues arising from the courts when applying the Code of Administrative Offences of the Russian Federation" states that "an insignificant administrative offense is an act, although formally containing signs of an administrative offense, but taking into account the nature of the offense committed and the role of the offender, the size the harm and severity of the consequences that have occurred does not represent a significant violation of protected public relations."

Based on this message, it can be concluded that a minor corruption offense is a disciplinary violation that does not constitute a significant violation of protected public relations, and therefore the person who committed this offense may be exempted from applying disciplinary measures to him. In this direction, the law should more clearly define its position, moreover, a universal approach is needed in consolidating the criteria for the insignificance of the relevant offense, as well as its assessment. Now it can be seen that in the civil service, one disciplinary penalty is provided for the commission of a minor corruption offense (Article 59.3), and in the service of internal affairs bodies, two penalties are provided for the commission of the same act (Article 51.1). This approach seems incorrect.

To assess the degree of "danger" of a disciplinary corruption offense, the Ministry of Labor adopted a relevant document, namely, letter No. 28-6/10/P-2479 dated April 15, 2022 "On updating the Review of the Practice of holding Public (municipal) employees Accountable for non-compliance with restrictions and prohibitions, non-fulfillment of duties established in order to combat corruption."  Please note that the decree of the Government of the Russian Federation dated August 13, 1997 "On approval of the Rules for the preparation of regulatory legal acts of Federal executive authorities and their state registration" states that "the publication of regulatory legal acts in the form of letters, orders and telegrams is not allowed." In this regard, the normativity of the letter from the Ministry of Labor raises questions.

The letter from the Ministry of Labor "On updating the Review of the Practice of holding public (municipal) employees accountable for non-compliance with restrictions and prohibitions, non-fulfillment of duties established in order to combat corruption" contains an indication of significant misconduct; minor misconduct and minor misconduct. This differentiation seems to be correct, but it should be enshrined in law, and not in a document that has the status of a letter. Disciplinary corruption offenses have different levels of danger, and accordingly, adequate disciplinary penalties should be applied for their commission, and in some cases, disciplinary action should be limited to a preventive conversation with the relevant violator. It must be said that the designated letter of the Ministry of Labor introduces categories that the current legislation does not use, namely: "significant misconduct"; "minor misconduct"; defines a typical situation of applying disciplinary punishment in a simplified manner. Appropriate regulation should be carried out at the level of the law.

At the end of the consideration of the indicated issue, it should be concluded that in the current legislation it is necessary to use such a category as: "disciplinary corruption offense"; consolidate the system of disciplinary penalties that should be applied for disciplinary violations of anti-corruption legislation; consolidate the categories of disciplinary corruption offenses. It is also necessary to determine the procedure for applying disciplinary penalties for corruption offenses, including in a simplified manner, when a person admits his guilt in committing this act.                                                 

Issues of trust and distrust in the public service

Dismissal from public service is a legal fact of termination of official legal relations. Dismissal from the service can be carried out at the employee's own request, according to a situation that does not depend on the parties to the official legal relationship, as well as on the initiative of the employer's representative, in particular due to loss of trust. In other words, loss of trust is distrust. The categories of "trust" and "distrust" are dialectically interrelated. In this regard, A.V. Kupreichenko pointed out that "... trust and distrust in certain people, groups, value systems, norms, ideas, etc. expresses not only the current state of relations with these objects, but also the focus of the subject on intensification, deepening of relations, rapprochement with them or, conversely, avoidance or destruction them" ^[17].

"Trust" and "distrust" are interdisciplinary categories, they are studied in various social disciplines, and the approach to understanding and evaluating these definitions is generally identical, with regard to the designated problem, we are primarily interested in the legal aspect of "trust" and "distrust". The categories of "trust" and "distrust" in various areas of law have a differentiated functional content, which is caused by the relevant subject of legal regulation. However, regardless of the subject of legal influence, the result of the indicated states is generally identical, trust contributes to the rapprochement of subjects of legal relations, and a state of distrust produces their rejection. M.Yu. Agafonov writes that "... trust in the legal field presupposes a preventive assessment of an individual's actions, combining rational and emotional principles with a clear advantage of the first. Legal trust arises and, accordingly, is lost in the process of legal relations related to work, is within the competence of human cognition and therefore needs some evidence or grounds" ^[18].

Considering this thesis, let's pay attention to some of its components. Dismissal due to loss of trust is a kind of loss of legal trust, since as a result of this dismissal, the legal connection of the subjects of the relevant legal relations is terminated, and a lasting negative state occurs due to the action of the applied disciplinary penalty. Dismissal due to loss of trust is precisely a disciplinary penalty, despite the fact that it is not fixed in the general system of disciplinary penalties. In this regard, when applying dismissal due to loss of trust, all general and special principles of disciplinary responsibility should be taken into account.                  

It should be noted that dismissal on the initiative of the employer's representative can be carried out for committing a guilty act by an employee, as a result of which there is a loss of trust in him. Dismissal due to loss of trust is, in fact, a kind of dismissal on negative grounds, however, it has its own specific features caused by the basis of such dismissal, procedural support, dismissal, as well as legal consequences. The doctrine pointed to the competition of the grounds for dismissal at the initiative of the employer's representative, and therefore this issue is resolved in different ways in different segments of the civil service.  As noted by T.A. Batrova and O.V. Korneeva, "... the exclusion of dismissal due to loss of trust from the number of gross violations of official discipline, some time ago did not solve all the problems in the service in the internal affairs bodies. So today there is competition between dismissal due to loss of trust and the grounds for dismissal, which are provided for gross violation of official discipline in the internal affairs bodies" ^[19].

At its core, dismissal due to loss of trust is a kind of dismissal for gross violation of official discipline, and correlates with it as a part and a whole. Not every dismissal for gross misconduct is a dismissal for loss of trust. The very wording "dismissal due to loss of trust" is not entirely correct, in the sense in which it is used in the law on public service, this wording does not reflect the full range of relationships in which trust or distrust takes place. In this regard, it would be correct to use such a construction as "disciplinary dismissal for violation of anti-corruption legislation" in official legislation.                             

It should be noted that not all types of public service have such grounds for dismissal as "for gross violation of official discipline." As seen, the differentiation of the grounds for the application of liability measures is of great practical importance, especially when it comes to dismissal, which is not caused by the employee's or employee's own desire. Taking this into account, we will consider the grounds for dismissal due to loss of trust, but before that we need to determine what is meant by such a category as "trust" and "distrust". It should be noted right away that the concept of trust is not legal in nature, however, non-legal terminology is often used in legal regulation, which over time acquires a legal status, in particular, this may apply to such a category as "trust". Trust or states of trust permeate the law, without trust there can be no contractual relations, marital and family relations, without trust it is impossible to imagine the development of labor and official relations. As noted in the literature, "... trust is a central part of all human relationships, including romantic relationships, family life, business transactions, politics and medical practice" ^[20].

Trust relationships are formed over a period of time, and therefore it can be concluded that trust is the result of people's social communication. A relationship of trust cannot be formed under the influence of law or other administrative influence, trust is the result of the free will of people or other subjects of law. Trust, like many social categories, has its antipode, namely the state of distrust, which is caused by any negative behavior, for example, it may be caused by the result of an offense. At the very beginning of the development of legal relations, there is a state of trust, otherwise this relationship simply would not have been started. In almost any relationship, trust initially takes place, we can say that there is a presumption of trust, which may gradually disappear as a result of behavior that causes distrust. In this regard, E.V. Elfimova, L.I. Minnegalieva and O.G. Beldina correctly noted that "... it is quite difficult for a manager to understand how conscientiously the accepted employee will treat the performance of duties. Unprofessionalism, conflict, unwillingness to improve the results of the organization's work, negligence, demonstration of disrespect for management – all this undermines trust in the employee, as a result of which the employer begins to think about how to get rid of a negligent subordinate" ^[21].

  Thus, a state of distrust gradually emerges from a state of trust, and as a consequence there is a "loss of trust". There are different points of view regarding the concept of "loss of trust". As the authors of the commentary to Law No. 79-FZ note, "... the loss of trust in a civil servant can be understood as a relationship that arose as a result of actions (inaction) committed by a civil servant, which give rise to reasonable doubts in the representative of the employer about his honesty, decency, conscientiousness, sincerity of the motives of his actions, the ability to effectively perform his official duties" ^[22].

As S.V. Surkova points out, "the term "loss of trust" is an evaluative concept and is used in the field of public civil service. A loss of trust can be understood as a relationship that arose as a result of actions (inaction) committed by an employee, which give rise to reasonable doubts about his honesty, decency, integrity, sincerity of the motives of his actions, and the ability to effectively perform his official duties" ^[23].

Loss of trust in official relations is a socio–legal condition caused by an employee committing an illegal and culpable act related to a violation of anti-corruption legislation, as a result of which legal relations are terminated and grounds for disciplinary action appear. Based on this, it can be concluded that the state of loss of trust precedes the process of applying disciplinary punishment.      

Trust in labor and official relations should be considered in several aspects, namely in a broad sense, this condition is discussed in the above quote, when an employee did not meet expectations and thereby lost trust (the social aspect of trust and distrust). In a narrow sense, trust and distrust can be spoken of when a person commits a gross disciplinary violation, and the commission of this offense leads to a loss of trust in him. As a result of the commission of such an offense, it is impossible to continue employment or official relations. It should be noted that a disciplinary offense that causes distrust of an employee (employee, employee) should be assessed precisely as a gross (significant) violation. Thus, the Labor Code of the Russian Federation provides for the termination of an employment contract at the initiative of the employer, in case of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (paragraph 7 of Article 81). This is one of the options for dismissal due to loss of trust.

Another variant of the relevant dismissal is associated with a gross violation of anti-corruption legislation. The Federal Law of July 27, 2004 "On State Civil Service" establishes seven grounds for dismissal due to loss of trust (Article 59.2); the Federal Law of November 30, 2011 "On service in the internal Affairs bodies" also establishes similar grounds for dismissal due to loss of trust (82.1).

Dismissal for loss of trust entails various legal consequences, dismissal under the Labor Code of the Russian Federation (Article 81) is one variant of negative consequences; dismissal under the law on civil service is another consequence, namely placement in the register of persons dismissed for loss of trust.

Next, let's pay attention to the legal consequences of such a disciplinary action as "dismissal due to loss of trust."    The Federal Law of July 27, 2004 "On State Civil Service" stipulates that a civil servant cannot be in the service, and accordingly is employed in case the representative of the employer loses confidence in him in case of non-compliance with restrictions and prohibitions, and non-fulfillment of duties established in order to combat corruption (paragraph 10 of Article 16). Federal Law of July 19, 2011 "On Social guarantees to employees of internal affairs bodies" stipulates that a one-time allowance is not paid to citizens dismissed from service in internal affairs bodies due to non-compliance with restrictions and prohibitions by an employee, as well as due to loss of trust (paragraph 8 of Article 3).

It must be said that the commission of not only a corruption offense, but also other mercenary offenses, such as petty theft of other people's property, leads to a loss of trust. Sometimes a state of loss of trust is formed under the influence of political factors, based on this, it should be emphasized that an employee, and an employee of a budget organization, should be politically neutral.  Thus, the Federal Law of July 27, 2004 "On the State Civil Service of the Russian Federation" stipulates that "a civil servant is prohibited from using official powers in the interests of political parties" (paragraph 13 of Article 17). Federal Law of November 30, 2011 The Law on Service in the Internal Affairs Bodies also defines that "an employee of the internal affairs bodies is prohibited from being a member of political parties, financially supporting political parties and taking part in their activities. When carrying out official activities, an employee should not be bound by the decisions of political parties" (paragraph 6 of Article 4). For participating in opposition political activities, a civil servant may be dismissed, but this is not dismissal in the legal sense of the meaning of "loss of trust", although of course trust in such a person is lost from the state.     

Dismissal due to loss of trust entails legal restrictions for the dismissed person, deterioration of professional reputation, emotional experiences, as they sometimes say, this dismissal with a "wolf ticket". It really is. In the conditions of information support for the process of execution of disciplinary punishment in the form of dismissal for loss of trust, the dismissed person on this basis is placed in the appropriate register, which is open and any person interested in this can familiarize himself with its contents. As E.V. Cherepanova and V.V. Matveev note, "... the main idea of introducing a register of persons dismissed due to loss of trust is to create a single database containing information about these persons, which would make it difficult for them to conceal information about the fact of dismissal due to loss of trust" ^[24].

Employees of personnel services or recruitment structures, more or less large organizations, now almost mandatory check those who are being applied for work, especially carefully checking is carried out against those persons who were previously in public service and were required to comply with the requirements of anti-corruption legislation. This is necessary in particular to minimize the situation associated with the emergence of a conflict of interest. Being in the register of persons dismissed due to loss of trust may be grounds for refusal of employment, that is, it is nothing more than a defeat in the right. The employer refuses to hire a person on the register in order to maintain his reputation, as well as according to the prevailing stereotype that this person may commit a gross violation of labor (official) discipline or violate the requirements of anti-corruption legislation at a new place of work. On this issue, S.A. Kukovintseva notes that "... the register of persons dismissed due to loss of trust will help personnel to orient themselves when selecting candidates for state and municipal service – to receive reliable information about compliance by applicants with anti-corruption legislation. Dismissal due to loss of trust should have a negative impact on the violator and have legal consequences in his further employment" ^[25].

It should be noted that a person dismissed due to loss of trust can no longer enter the civil service, much less the militarized service, in particular, the service in the internal affairs bodies. In this regard, the question arises as to the fairness of such a defeat in the rights of a person dismissed for loss of trust, how correct is the effect of such legal restrictions as a result of a disciplinary (administrative) decision. As A.D. Ilyakov correctly noted, "... inclusion in the register of persons with a ban on their subsequent admission to the state civil service is inherently disqualification, but by a decision not of a court, but of a specific employer" ^[26].

Dismissal for loss of trust can be conditionally called disqualification, such punishment is in the Administrative Code, and it can be applied to civil servants. Dismissal for loss of trust is a disciplinary penalty that is often applied, as evidenced by the digital data of the register of persons dismissed on this basis, an "Information and Analytical bulletin" has even been published on this issue ^[27] it provides a meaningful analysis of persons dismissed for loss of trust, shows their official position, gives their age characteristics, etc.

It should be noted that the grounds for dismissal due to loss of trust are, in fact, disciplinary corruption offenses and the composition of these offenses are far from optimally defined, in particular, there is no clear understanding of what a "conflict of interest" is and what its consequences are. In reality and official practice, there are many official and near-official situations that can be regarded as a "conflict of interest", or you can not qualify this situation as any conflict.

It is still unclear how to assess a "minor corruption offense", which means "providing incomplete and unreliable information" about income and expenses, property and property obligations. How incomplete and unreliable they should be and why this situation should be regarded in this way.  There is a letter from the Ministry of Labor dated April 15, 2022 No. 28-6/10/P-2479 "On updating the Review of the Practice of holding public (municipal) employees accountable for non-compliance with restrictions and prohibitions, non-fulfillment of duties established in order to combat corruption", it presents typical or understandable justifications for the application of disciplinary punishment, the basis of which these are corruption offenses. However, this document does not solve all the issues, there are simply a huge number of controversial official situations concerning the designated issue in this review. As it seems, in the case of applying such a disciplinary penalty as dismissal due to loss of trust, there are quite a lot of "gray" moments, subjective assessments of the grounds for applying the indicated penalty, which is unacceptable.

The analysis of the grounds for dismissal due to loss of trust, that is, the analysis of the composition of disciplinary offenses, which are enshrined in the relevant articles (Articles 59.2; 82.1), which were discussed above, suggests that the process of proving guilt in the commission of relevant offenses is very difficult. It is not always possible to establish the fact of a corruption disciplinary offense as part of a routine internal audit. It is often necessary to contact: tax authorities, pension fund, Rosreestr bodies, State Traffic Inspectorate, BTI, credit organizations, operators of digital financial systems, and in some cases it is necessary to send requests to the competent authorities of foreign countries, etc.

Only in this case, it is possible to obtain official information that the employee has concealed a property asset that was acquired by him with funds, the legality and validity of which he cannot confirm.  In other words, dismissal due to loss of trust implies a serious procedural content in the mechanism of its action. Therefore, dismissal due to loss of trust on the grounds provided for by the legislation on public service should be approached as carefully as possible, and any controversial situation, legal uncertainty should be interpreted in favor of the person against whom the relevant disciplinary proceedings are being conducted.

Based on this, we agree that "... the regime of dismissal due to loss of trust represents a purposeful impact by administrative and legal means on a certain group of public relations arising in the field of combating corruption" ^[28].  Legal presumptions must be taken into account when applying dismissal due to loss of trust. As M.Yu. Agafonov noted, "legal trust should be based on the presumption of innocence: an employee cannot be dismissed due to "loss of trust" without sufficient evidence of his offense" ^[29].

Perhaps, in some cases, when committing a corruption disciplinary offense, dismissal for gross violation of official discipline should be applied, which will not entail certain legal consequences, in particular those that entail dismissal due to loss of trust. In other situations, in order to exclude the possible restriction (defeat) of a person's labor rights, the dismissal of the guilty person may be carried out at his own request, but with a limited opportunity to enter public service for three years.