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Security Issues
Reference:
Zolotarev E.V., Sergeev I.V., Lapenkova N.V., Krupnov Y.A.
Anti-Corruption and Illicit Enrichment as its Economic Manifestation
// Security Issues.
2022. ¹ 4.
P. 95-110.
DOI: 10.25136/2409-7543.2022.4.38714 EDN: XDZDSC URL: https://en.nbpublish.com/library_read_article.php?id=38714
Anti-Corruption and Illicit Enrichment as its Economic Manifestation
DOI: 10.25136/2409-7543.2022.4.38714EDN: XDZDSCReceived: 05-09-2022Published: 30-12-2022Abstract: Today, corruption, in accordance with the Economic Security Strategy of the Russian Federation for the period up to 2030, is considered as one of the key internal threats to the economic security of the country. However, practice shows that it not only destroys the mechanism of state administration from within, but is increasingly being used by the West to exert pressure and induce certain Russian officials who have illegal assets abroad to engage in illegal cooperation. In this regard, the creation and development of effective mechanisms to counter illegal enrichment of officials will help to undermine the economic foundations of corruption. The work uses dialectical and comparative legal methods, a systematic approach, tabular interpretation of empirical and factual information. The article explores the genesis of the legal institution of responsibility for illicit enrichment, foreign experience of its regulatory consolidation. Analyzed attempts to criminalize illicit enrichment in Russia. The positions of domestic scientists regarding the expediency of its criminalization at the present stage of development of the Russian legal system are considered. The authors' approach is proposed to fix in the criminal law of Russia responsibility for illegal enrichment of officials. The authors come to the conclusion that a characteristic feature and the ultimate goal of all corruption offenses is the focus on obtaining benefits (illicit enrichment). Illegal enrichment of officials is a serious threat to the economic security of the Russian Federation. In this regard, the criminal law of Russia should provide for liability for the acquisition by an official of the ownership or use of assets, the value of which significantly exceeds the legal income of this person and his wife (spouse), as well as for the acquisition of such assets in the interests of third parties. Keywords: economic security of the state, problems of economic security, threats to economic security, russian economy, national security, corruption, illegal enrichment, anti-corruption, cost control, criminal liabilityThis article is automatically translated.
In the context of global economic challenges and threats, certain Western states have been waging a full-scale hybrid war against the Russian Federation in recent years, aimed at undermining the domestic economy and reducing state sovereignty. The achievement of a strategic effect in such a war, as V.V. Baranenkov rightly notes, is carried out by economic instruments of force aimed at a destructive impact on the domestic economic environment [1]. Such instruments include: the use by individual countries as an instrument of global competition of their advantages in the level of development of the high-tech economy, the impact on international trade and economic relations through interstate economic associations created without Russia's participation, hindering Russia's consistent economic development through the instrument of sanctions. Of great importance is the activity to ensure the economic security of the state, which, in accordance with the Strategy of Economic Security of the Russian Federation for the period up to 2030 (hereinafter referred to as the Strategy), involves the implementation by authorities and local self–government in cooperation with civil society institutions of a set of legal, political, organizational, socio-economic, informational and other measures aimed at countering challenges and threats to economic security and protecting the national interests of the Russian Federation in the economic sphere. Corruption has a particularly strong impact on the country's security, which, according to the Strategy, is a key economic threat. In the normative sense, the term "corruption" means "abuse of official position, giving a bribe, receiving a bribe, abuse of authority, commercial bribery or other illegal use by an individual of his official position contrary to the legitimate interests of society and the state in order to obtain benefits in the form of money, valuables, other property or services of a proprietary nature, other property rights for for themselves or for third parties, or the illegal provision of such benefits to the specified person by other individuals, as well as the commission of these acts on behalf of or in the interests of a legal entity" [2]. Despite the fact that the normative definition of the term corruption is much narrower than its general philosophical meaning, it allows us to determine the ultimate goal of all corruption offenses. Thus, all the corruption offenses listed in the law are united by their focus on obtaining benefits [3]. Corruption largely paralyzes the functioning of political and public institutions, hinders the implementation of reforms and the transformation of the national economy, which has an extremely negative impact on the entire mechanism of public administration [4]. These criminal activities are increasingly of a cross-border nature, which can be used by the West to exert pressure and induce certain Russian officials with illegal assets abroad to cooperate in the opposite way [5]. In addition, this phenomenon can be used as an information warfare tool, including by distributing relevant information about domestic political leaders in order to form a negative opinion both within the country with further organization of the protest movement, and in the international arena to encourage leading states to minimize trade and economic ties with Russia [6, 7]. Anti-corruption mechanisms.The international experience of fighting corruption is quite diverse: from the criminal prosecution of persons convicted of corruption and their removal from their posts, sentencing to fines and imprisonment in civilized countries of democratic Europe and the West to the death penalty in China [8, 9]. In the east, in Singapore, you can find such provisions of the law that regulate, as in Europe, the duty of officials to provide reports on their expenses, while in China, all civil servants are required to provide a declaration of income and expenses annually, both about themselves and about their close relatives [10]. Singapore's Anti-Corruption Law authorizes the court to order recipients of bribes to pay a fine in the amount of a bribe, in addition to the punishment received in the form of a fine and/or imprisonment. This emphasized the principle that the accused should not benefit from any corrupt activity [11]. In the 70s, the Government of Singapore implemented a program to combat corruption in the Ministry of Finance, this program included [9]:
Taking into account the world practice and in order to ensure the economic security of Russia, the authors have proposed the following mechanisms for combating corruption. 1. Economic
2. Legal
3. Administrative
4. Social
It seems that the anti-corruption mechanisms proposed by us are aimed at creating such economic and legal conditions for conducting economic activities on the territory of the country that will create excessively high risks for the subjects of corruption crimes and will lead to the actual inevitability of punishment. For a more explicit interpretation of the hypothesis, consider the proposal to introduce the digital ruble and the state blockchain into monetary circulation. So, according to the Bank of Russia (https://trends/industry/60e4014c9a7947816217cac1 ), the state cryptocurrency will allow anyone to track the movement of users' accounts. In addition, it is assumed that such innovative monetary units will be placed on smart contracts, which will specify their intended purpose and the impossibility of using them for other needs. As a result, when committing a corruption crime, the flow of funds and the final beneficiary will be absolutely transparent to law enforcement agencies, which is likely to significantly reduce the number of such illegal acts. At the same time, it is not excluded that corrupt payments will be transferred to cash or to the so-called "gray" market. Illegal enrichment.However, no matter how the criminal schemes and counteraction measures implemented by the state tracking mechanisms are improved, the key feature of the committed corruption crime remains the acquired asset, the value of which is many times higher than the legitimate income of a civil servant. Let's call this concept illegal enrichment. This problem began to be actively discussed in the context of criminal law measures against corruption back in 2003 in connection with the adoption of the UN Convention against Corruption on October 31 (hereinafter referred to as the document). Thus, in article 20, it was proposed to consider illegal enrichment within the framework of criminal legal relations: "subject to compliance with its constitution and the fundamental principles of its legal system, each State Party shall consider the possibility of taking such legislative and other measures as may be necessary in order to recognize as a criminal offense, when committed intentionally, illegal enrichment that is, a significant increase in the assets of a public official exceeding his legitimate income, which he cannot reasonably justify" [16]. In 2006, the Russian Federation ratified the Convention with a statement that its jurisdiction does not extend to the recommendation contained in article 20 [17]. The rhetoric of opponents of the introduction of illegal enrichment into the criminal law of Russia was based on the fact that most of the countries participating in the Convention also did not provide for responsibility for this act in national legislation. In 2012, the Federal Law "On Control over the Compliance of Expenses of Persons holding Public Positions and other Persons with their Incomes" was adopted [18], which established a mechanism for state control over the property status of individuals in order to combat corruption, as well as the possibility of applying to the income of the Russian Federation property in respect of which there is no provided information confirming its acquisition on legitimate income. The effectiveness of this mechanism is evidenced by world practice [19, 20]. S.S. Feshina, V.I. Prasolov propose an economic and legal mechanism for identifying and identifying illegally acquired property [21]. However, the issue of criminalization of illicit enrichment remains relevant. For example, the Chairman of the Constitutional Court spoke in support of this mechanism Of the Russian Federation V.D. Zorkin. In an interview with Rossiyskaya Gazeta, he noted the rigidity of this norm and pointed out the need to establish a starting point from which the application of this norm should become rigorous [22]. I.V. Ilyin, V.S. Izosimov propose to establish criminal liability for "a significant increase in the assets of an official exceeding his legitimate income, which he cannot reasonably justify" [23]. Some researchers understand the meaning of illicit enrichment much more broadly, including not only crimes, but also other types of illegal behavior [24, 25]. Thus, P.S. Yani noted that "an indication of illegality (and not criminality) means that property can be acquired not only, say, as a result of illegal business activities, tax evasion or embezzlement, but also by other illegal means, for example, as a result of unjustified enrichment" [26]. Since the ratification of the Convention, attempts have been made to amend the legislation of the Russian Federation regarding the criminalization of illicit enrichment. Thus, in 2017, the draft Federal Law No. 757818-7 "On Amendments to the Criminal Code of the Russian Federation and the Code of Criminal Procedure of the Russian Federation regarding the Introduction of the concept of illicit enrichment and other measures aimed at combating corruption" was submitted to the State Duma. The authors of the legislative initiative proposed to supplement the Criminal Code of Russia with a new composition, which consisted in a significant excess of the value of an official's assets over the amount of his legitimate income. At the same time, the punishment was made dependent on the amount of illegal enrichment and the level of the position filled by the person – from a fine of five times the amount of enrichment to imprisonment for a period of 7 years [27]. The Government of the Russian Federation did not support the document, noting in the review that the approach used in it contradicts part 1 of Article 14 of the Criminal Code of Russia, according to which "a culpably committed socially dangerous act prohibited by this Code under threat of punishment is recognized as a crime" [28]. In addition, the emphasis is placed on the fact that illegal enrichment cannot be the basis of criminal liability, since it is the result of criminal actions (inaction), responsibility for which is already provided for in articles of the Special Part of the Criminal Code of Russia (for example, articles 204 "Commercial bribery", 285 "Abuse of official authority", etc.). In addition to the remark indicated in the Government's response, it is worth paying attention to the fact that the authors of the projected norm propose to establish liability for a significant excess of the value of an official's assets over the amount of his legitimate income. In practice, cases are not excluded when expensive property is acquired on the joint income of an official and his spouse (spouse). In this regard, the approach seems rational, according to which, when establishing the fact of illegal enrichment, the total income of these persons will be taken into account. To date, attempts to establish criminal liability for illegal enrichment in Russia have been unsuccessful. At the same time, this mechanism is actively used abroad. International practice speaks about the increase in the positive effect of the fight against corruption, thanks to the implementation of the norms of the UN Convention on Illicit Enrichment [29]. Criminal liability for illegal enrichment is provided for by the legislation of more than 50 countries of the world, including: Argentina, Belgium, India, China, Lithuania, France, as well as such post-Soviet countries as the Kyrgyz Republic and Moldova. We believe that analyzing the international experience of combating illegal enrichment by criminal means, it would be advisable to consider the experience of Russia's closest neighbors and a number of post-Soviet countries - the Kyrgyz Republic and Moldova - since our legal systems have a lot in common due to many years of development within one state. So, for example, in accordance with Article 323 of the Criminal Code of the Kyrgyz Republic, responsibility for illegal enrichment is established, which includes "the acquisition by an official of ownership (use) of property whose value exceeds his official income, confirmed by legitimate sources for two full years, or the transfer of such property to close relatives" [31]. That is, in Kyrgyzstan, the legislator allows the possibility of bringing to responsibility, including for illegally acquired property, issued to relatives, as well as other persons, but in use by an official. Given the awareness of corrupt officials about the existing preventive mechanisms and the constant desire to conceal illegal property, such an approach seems extremely effective. A fundamentally different approach is contained in the Criminal Code of the Republic of Moldova. If it is the act of acquiring property that is criminalized in the legislation of Kyrgyzstan, then in Moldova it is the very fact of possession of illegal property. In accordance with article 330.2 of the Criminal Code, illegal enrichment is understood as the possession by an official or public person personally, or through third parties, of property whose value significantly exceeds the funds received by him, and in respect of which it is established on the basis of evidence that it could not have been obtained legally [32]. Thus, the investigating authorities need to prove the fact of ownership of the property personally or through third parties. At the same time, a rather harsh measure of responsibility is provided for the commission of this crime – imprisonment for a period of 3 to 7 years. Responsibility for illicit enrichment in the Kyrgyz Republic and Moldova is shown in table 1. Table 1 - Responsibility for illicit enrichment in the Kyrgyz Republic and Moldova
Source: compiled by the authors Analyzing domestic and foreign experience, it can be concluded that, in the opinion of the legislator, the very fact that an official's assets exceed his income with a high degree of probability indicates corrupt behavior (taking a bribe, abuse of authority, etc.). The existing system of restrictions and prohibitions established for officials in order to combat corruption in conjunction with the mechanism for declaring information on income, expenses, property and property obligations will not allow civil servants to acquire significant assets, the legality of which will be questionable. That is, a significant excess of an official's assets over his income, which is a criminal result, acts as an indicator of specific corrupt behavior. Taking into account the above, including foreign experience, it seems appropriate to introduce the following norm into the Criminal Code of the Russian Federation. "Article 291.3. Illegal enrichment 1. Illegal enrichment, that is, the acquisition by an official into the ownership or use of assets whose value significantly exceeds the legal income of this person and his spouse, as well as the acquisition of such assets in the interests of third parties, - is punished ... (a minor crime) 2. The same acts committed by a person holding a public office of the Russian Federation or a public office of a subject of the Russian Federation, as well as by the head of a local self-government body, - are punished ... (a medium-gravity crime) 3. Acts provided for in parts one and two of this Article committed on a large scale, - are punished ... (a medium-gravity crime) 4. Acts provided for in parts one and two of this Article committed on a particularly large scale, - are punished ... (serious crime) Notes. Assets in this article are understood to be land plots, other real estate objects, vehicles, securities, shares (participation shares, shares in the authorized (stock) capitals of organizations), digital utilitarian rights, digital financial assets, funds held in accounts with banks and other credit organizations, jewelry, luxury goods and antiques, as well as other financial obligations. Officials in this article are understood to be persons who, in accordance with the legislation of the Russian Federation on combating corruption, are obliged to provide information about their income, expenses, property and property obligations, as well as information about income, expenses, property and property obligations of their spouses and minor children. Legitimate incomes in this article are understood as incomes that are presented by an official to the employer's representative in accordance with the legislation of the Russian Federation on combating corruption, or if an audit conducted by the personnel service for the prevention of corruption and other offenses has established the unreliability and (or) incompleteness of the information provided – the legality of which is established on the basis of other evidence, in including those submitted by an official. Significant in this article is the excess of the value of the assets of an official over the amount of the legal income of such a person and his spouse (spouse) in the amount of more than one million rubles. Illegal enrichment on a large scale is the excess of the value of the assets of an official over the amount of the legal income of such a person and his spouse in the amount of more than five million rubles. Illegal enrichment on a particularly large scale is the excess of the value of the assets of an official over the amount of the legitimate income of such a person and his spouse in the amount of more than ten million rubles.". The legal consolidation of criminal liability for illegal enrichment has a number of advantages, including:
Thus, in order to effectively counter corruption crimes, it is necessary to adopt a set of measures providing for innovative solutions for controlling money turnover and providing public services, reducing the motivation for committing illegal acts by optimizing the salary fund of the state apparatus, improving the image of a civil servant, forming a negative perception of corruption in the public consciousness, as well as strengthening criminal responsibility. The introduction of a special identifier - the excess of the assets of officials over their legitimate incomes will signal signs of corrupt behavior and the need for an internal audit. This becomes particularly relevant in the context of the latency of corruption offenses, as well as the limited forces and means of the investigation and inquiry bodies. References
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