Digitalization of control and supervisory activities as a tool for combating corruption

Kuryndin Pavel Aleksandrovich ORCID: 0000-0002-0133-3953 PhD in Law Assistant of The Department of Administrative and Financial Law, Saint Petersburg State University 199034, Russia, Saint Petersburg, line 22 V.O., 7 p.kuryndin@spbu.ru

Introduction

At the end of January 2023, the Ministry of Internal Affairs of Russia reported on its activities to solve crimes over the past 12 months, with only 1.8% of the almost 2 million registered crimes being corruption-related^[1]. At the same time, Russian citizens have a negative attitude towards corruption along with drug addiction, alcoholism and racism^[2]. In addition, they "explain corruption by saying that it is "encouraged by the state", "there is no punishment and control", "the authorities themselves are corrupt", "a Russian cannot help but take — people are like that"^[3]. Therefore, the state cannot but respond to such a public request and is constantly looking for legal tools to use one or another set of tools appropriate to current challenges to counter corruption.

One of them may be the digitalization of control and supervisory activities, which plays a significant role in economic life and in the administrative sphere.

As you know, Russian administrative law has gone through several stages of reform over the past almost 30 years. The transformations that were made in the mid-noughties certainly played a positive role in revising the model of interaction between administrative bodies and individuals. They laid down administrative procedures regarding the legal and factual possibility of realizing and protecting the public rights of citizens and organizations ^[1]. However, so far no law on administrative procedures has been adopted in Russia, although the need for this act is justified in science and even a draft of such a law has been prepared ^{[2; 3]}. In other words, legislative regulation would create a single standard for the interaction of administrative bodies and non-governmental entities. Indeed, even legislation on control and supervision or its individual types may differ. For example, in part 1 of Article 43 of Federal Law No. 135-FZ dated July 26, 2006 "On Protection of Competition"^[4] in the framework of proceedings on cases of violation of antimonopoly legislation, the right to familiarize oneself with the case materials, make extracts from them, present evidence and get acquainted with evidence, etc. is guaranteed. Federal Law No. 248-FZ dated July 31, 2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" (hereinafter referred to as the Law on CND) contains more guarantees: placing the burden of proving the validity of one's actions upon appeal in accordance with the procedure established by the legislation of the Russian Federation on the inspector (paragraph 10 of Part 1 of Article 29), the right to submit additional evidence at the time of the substantive proceedings at the request of the supervisory authority (part 3 of Article 43), the right to submit explanations (article 79), the right to familiarize oneself with the results of the control (supervisory) event (article 88).

In addition, dissertations devoted directly to the issues of administrative procedures as a tool for combating corruption have been defended in Russia ^{[1; 4]}. However, the latest defenses^[5] only partially address this issue, indicating that proper regulation of administrative procedures can contribute to combating corruption ^[5]. And the most important thing is that the legislator does not yet follow the advice put forward by the scientific community. Although the administrative procedure, formed on the basis of clear and uniform rules for the activities of public administration bodies (a legal model of activity), provides certainty, and this, in turn, anticipates corruption ^[6]. Indeed, a clear and understandable algorithm of actions should allow you to achieve your goals. Otherwise, the lack of consistency is manifested in law enforcement practice. For example, if an administrative act issued after a control event is declared illegal, but this circumstance cannot be used as the basis for reviewing the decision to bring to administrative responsibility. The arbitration courts in this regard, in particular, note: "As the court correctly indicated in its ruling, the contested order and the decision on bringing to administrative responsibility canceled by the court of general jurisdiction were adopted within the framework of a single audit. However, the procedure for their adoption is different. There is no dependence of the adoption of the prescription on the resolution, the acts are independent in nature, and there is a different procedure for appealing them. In addition, in the framework of different trials, the parties could present different evidence"^[6].

Returning to the subject of the study, we note that in the early summer of 2021, the next National Anti–Corruption Plan for 2021-2024 was adopted^[7], and a special Poseidon system will appear in the field of anti-corruption. According to the developers, it will allow monitoring persons who are subject to restrictions, prohibitions and requirements established in order to combat corruption in real time^[8]. Only selected materials on the results of the work of this system can be found in the public domain: the Ministry of Labor of the Russian Federation has issued Methodological recommendations on the use of the state information system in the field of anti-corruption "Poseidon"^[9], which are more related to the connection procedure; on the website of the Federation Council of the Federal Assembly of the Russian Federation, only a general overview is given that the system works, and also that suggestions for improvement have been formulated^[10]. More detailed results of the work of this system have not been found.

In addition, international law cannot help in the fight against corruption. Within the framework of the Eurasian Economic Union (hereinafter referred to as the EAEU), there are no special provisions, the subject of which is directly combating corruption ^{[7, p. 170]}. If the constituent documents of the EAEU contained such provisions, it could be an effective means of combating corruption. The international obligations of States arising from the integration of international anti-corruption treaties will be at least standardized.

It should be noted that Russia is reluctant to use other international instruments. For example, the definition of "corruption offenses" given in the model law "On Combating Corruption" is of particular interest^[11]. In this act, it is of an intersectoral nature, not limited only to the criminal and administrative sphere. In addition, Russia has not yet ratified article 20 of the United Nations Convention against Corruption regarding criminal measures for illegal enrichment^[12].

It turns out that the search for legal tools to combat corruption remains the task of the state itself. At the same time, the regulatory and legal regulation of digitalization of public administration in general and control and supervisory activities clearly lags behind the rapid development of digital technologies, where almost every day some new digital service or service appears^[13].

Thus, this study is devoted to the analysis of the current regulatory legal regulation in order to assess its effectiveness, search for potential problems and ways to solve them.

Materials and methods

General scientific and special methods of cognition have been used in the work. The use of the formal dogmatic method in this study in combination with the comparative legal method allowed us to gain new knowledge about the subject of the work by comparing and analyzing the regulatory framework and the practice of its application. The historical method is associated with the study of the process of formation and development of certain aspects of the object of study.

Using statistical data and a functional method, the results of the effectiveness of digitalization were analyzed and potential problem points in the existing model of legal regulation were identified.

Results

Unfortunately, corruption has become an everyday companion of public life. It has its manifestations both in everyday life and at various levels of government. At the same time, regulatory and policy documents do not always take into account all aspects of the activity. In other words, they do not even aim to use digitalization as a means of reducing or countering corruption. International treaties, including the EAEU level, cannot help in solving this task, since they are either formulated in a general way, or they also lack such a goal.

In addition, digitalization seems to be becoming an end in itself in the field of public administration and control and supervisory activities, in particular. However, the inability of a private person to influence the final decision in any way within the framework of an administrative procedure can lead to various negative consequences: violation of the rights of individuals to receive a particular benefit, return of documents, missed deadlines for appeal, etc. – in short, there is no certainty in the implementation of the rights of individuals.

Discussions

For a long time, one can find quite a lot of works in the scientific literature devoted to the digital transformation of public administration or individual sectors of the economy and spheres of public life. In particular, justifications are given, for example, for "creating algorithms for processing big data and developing an integrated artificial intelligence system that can significantly increase the effectiveness of anti-corruption methods" ^{[8, p. 1686]}, since offenders find ways to circumvent existing anti-corruption information technologies, and regulatory legal acts do not always take into account or lag behind the possibilities of digitalization. In fact, it should be noted that auctions within the framework of placing orders for public needs have been held for quite a long time in electronic form. However, one can easily stumble upon similar news: the initial (maximum) contract price was reduced by 1% and "the supply of tests for the detection of narcotic substances to state institutions from 22 cities of Russia was carried out at inflated prices"^[14]. Accordingly, this may indicate the presence of "agreements" between representatives of the customer and the potential winner outside the framework of trade procedures. A classic example is a trick on the part of unscrupulous customers when describing the object of purchase with the replacement of a Cyrillic letter with a Latin sign.

In general, a variety of digital tools can be used in public procurement^[9]. Thus, the capabilities of artificial intelligence, coupled with technology, can help in automating repetitive tasks, because it instantly analyzes a large amount of verified data and presents its results to make informed decisions based on them. They can also be used to draw up specifications for goods (works or services), but most importantly, they can be used to make a significant leap in evaluating and verifying sent offers both in price, timing, and qualifications, pricing and materials used. In addition, the use of distributed ledger technologies (blockchain), as you know, is a step towards the introduction of smart contracts, that is, these are software tools designed to automate the conclusion, execution of terms and agreements using a distributed registry.

The tools listed above, of course, can be applied to control and supervision in general, since forecasts can be made taking into account the identified corruption-causing factors (main business interests, conditions of dominance of certain companies, "main" contractors of public customers, etc.).

On the other hand, information technology or digital transformation cannot be considered as a means that will completely eliminate corruption ^{[9; p. 59]}. This is only one of the directions, but it is it that can influence the reduction of corruption in public administration through transparency and openness of information ^[10]. Indeed, as scientific research shows, it is transparency and openness, which are provided with the help of information technology, that prove their effectiveness, but in the absence of an integrated approach, they are not a panacea – they have their limitations. Thus, based on the results of the application of the principles of openness in various states, scientists have concluded that there is no direct dependence on the openness of data and the level of corruption, and open data, their volume and lack of structuring may, on the contrary, complicate the search for "hotbeds of corruption" ^{[8, pp. 1677-1678]}.

At the same time, digitalization in Russia should give a significant boost, since "half of all countries have been stagnating according to the CPI [corruption perception index] for almost ten years"^{[11, p. 184]}. However, the harbinger of the national project "National Program "Digital Economy of the Russian Federation" (hereinafter referred to as the program "Digital Economy")^[15] The state program of the Russian Federation "Information Society (2011-2020)"^[16] The priorities of state policy included the goal of using information technology to "identify and eliminate pockets of corruption." Currently, the Digital Economy program does not mention in any way how it can help in the fight against corruption.

Therefore, it turns out that the state at the programmatic level does not directly set itself such a task as the use of digital technologies in public administration.

At the same time, digital technologies undoubtedly help to "extinguish" pockets of corruption. As A. A. Gadzhieva notes, "the use of the automated information system "Electronic Kindergarten" in the Republic of Tatarstan has significantly reduced corruption risks ..." ^{[12, p. 334]}. Indeed, where we are talking about enrollments in educational institutions and other similar actions and where the human factor is excluded, it turns out that the electronic queue is conducted "by itself". In other words, there is a break in personal contacts, which, of course, will reduce corruption.

In this regard, we note the requirement for mandatory rotation of civil servants of the "heads" category of territorial bodies of federal executive authorities exercising control and supervisory functions, in accordance with Part 2 of Article 60.1. of Federal Law No. 79-FZ of July 27, 2004 "On the State Civil Service of the Russian Federation" (in the same article the grounds and the order of rotation of other civil servants are indicated). In any case, the important fact is that this institution was introduced to reduce corruption. Thanks to digital technologies, an employee can be "painlessly" transferred to another position in the order of rotation, if it is a question of using unified software tools or performing the same tasks, but extraterritorially. However, as indicated in the literature, for this, in particular, it will be necessary to prohibit personal reception and ensure digital control over communication only in the information environment^{[9, pp. 58-59]}. It is difficult to agree with this, because, firstly, digital technologies are being absolutized as an exceptional means, and secondly, the right to personal treatment is constitutional, therefore, the introduction of such measures for the digital depersonalization of civil servants requires a comprehensive and separate understanding.

Without a doubt, digitalization cannot be stopped, but it must be introduced taking into account various factors.

So, the plans of the Government of the Russian Federation are quite extensive. The Digital Economy program involves the transfer of 95% of socially significant services into electronic form, and so-called "superservices" are also being created, allowing various actions to be performed without papers (admission to university, enforcement proceedings, registration of an accident, etc.)^[17]. In general, the reform of control and supervisory activities should be completed by 2024. The Ministry of Economic Development of Russia has launched an application for remote business inspections based on the unified register of control objects since November 2022^[18]. At the same time, we emphasize that through this application, the control authorities enter information about the types of controls, which allows you to create a directory of verification measures that can be used by those being checked after receiving a notification. In other words, non-government entities will be able to understand not only what rights and obligations they have, but also to see what will be checked, how and in what time frame^[19]. In addition, the created system provides data presentation, analysis of the quality of inspections and their results, both to the control body itself and to other interested entities^[20]. In this regard, it is impossible not to welcome such changes.

If we consider digitalization from a different angle, it turns out that the basic idea of digitalization of control and supervisory activities is the absence of direct contact between an administrative body and an individual. However, individuals are not required to have access to the Internet. Statistics show that in 2021, 30% of households in Russia do not have such access, as well as a quarter of the Russian population did not use the global network in principle (2020 data)^[21]. Accordingly, the plans of the Government of the Russian Federation do not take this into account, which at least contradicts the principle of legal equality and certainty.

The gradual transition to digital interaction, laid down in the Law on CND, is unlikely to be canceled, but it needs to be corrected or improved. Firstly, to provide the possibility of analog interaction as a means of ensuring access of non-governmental entities to law and legal protection. Secondly, in this context, the statistics of the appeal of administrative acts within the framework of the procedure of pre-trial appeal of control and supervisory measures are interesting. According to the results of the consolidated report on state and municipal supervision for 2021, 1.4 thousand complaints have been received since July 2021^[22], one in three has been satisfied^[23]. In the Consolidated Report on state control (supervision) and municipal control in the Russian Federation for 2022, it was noted that more than 9 thousand appeals were submitted in a pre-trial manner^[24]. At the same time, it is important to note that the bulk of appeals are petitions for an extension of the deadline for the execution of orders (5,281), and there are almost half as many complaints about decisions or actions of employees of control bodies – only 3,693. In addition, 82.7% of positive outcomes in the first category of appeals, and only 32% in the second.

From the presented data, it can be concluded that within the framework of the pre-trial appeal procedure, issues that are not directly related to disputes over control and supervisory measures are being considered. Indeed, when the Law on the CND was adopted, it separately contained rules on sending a request for a delay in the execution of an order or other decision on verification outside the framework of a pre-trial appeal. Such an appeal was considered in accordance with the procedure for filing objections to the act of a control (supervisory) event. Article 89 of this Law in its original wording, in particular, obliged the supervisory authority to consult with the controlled person on the issue of consideration of received objections. The latter could attach documents confirming their validity to them. Accordingly, a different procedure was initially laid down, and more complex, but ensuring the right to participate in the development of the final decision. At the same time, current data indicate a simplification of the procedure for extending prescriptions, which is welcome, although such an approach is associated, as is known, with a moratorium on inspections and support for entrepreneurs. Therefore, if the policy changes, it is possible that the issue of the participation of a non-governmental entity will again be relevant.

In connection with the amendment of article 89 of the Law on CND, we will make one more remark. Now the filing of objections to the act of control and supervisory measures is referred to the pre-trial appeal procedure. In general, we can agree with this approach, despite the fact that, in its pure form, filing objections is a way to develop a final decision. At the same time, an important point is that article 43 of the Law on the CND, regarding the procedure for considering a complaint, initially did not contain the obligation of the supervisory authority to conduct such consultations. Now we are talking about the right to submit additional evidence at the time of the substantive proceedings, if requested by the supervisory authority (part 3 of article 43). From this, it can be concluded that from now on the non-governmental entity has no direct guarantees of participation in the development of the final decision on the case. And this may conceal potential threats to the rights of non-government entities and the desire to "resolve issues".

Unfortunately, detailed statistics on the complaints considered (grounds for refusal, return, satisfaction in full or in part, etc.) are not widely available, they could help in a qualitative analysis. Moreover, it should be borne in mind that the pre-trial appeal procedure so far covers only a part of the control and supervisory measures^[25]. In this context, one cannot but welcome such openness, which also helps to fight corruption. Also, taking into account the experience of "superservices", the results of the mandatory pre-trial appeal may be presented in a different light. For example, users and educational institutions of the "superservice" "Admission to university online" will experience various problems for the second year (an error in uploading documents or agreeing to admission and missing deadlines for submission, incomplete enrollment of students, etc.)^[26]. Accordingly, the inability to correct deficiencies or otherwise interact with the second party shows a violation of the basic principles of administrative procedure, as they are understood within the framework of the doctrine of "good governance" ^{[13; 14]}. Indeed, this doctrine guarantees non-governmental entities the opportunity to participate in the case and be listened to until the final decision on the case is made, which can just remove many questions. Actually, it was in the original version of the Law on CND. And in this sense, the Law on CND could become a harbinger of changes in administrative legislation and practice. At the same time, the right to good governance does not imply that an individual should always be listened to. First of all, we are talking about cases of the adoption of administrative acts with negative consequences for a non-governmental entity, this, of course, can include control and supervisory measures.

In this part, we have considered two approaches to determining ways to combat corruption, that is, from the standpoint of information or administrative law. However, the list of problems is similar in many ways: starting with various gaps in legislation, ending with the lack of specialists with competencies not only in law, but also in information technology.

Conclusions

Digitalization of control and supervisory activities has a number of unconditional advantages. Thanks to this process, the public entity not only increases revenues to budgets, but also reduces the burden on private entities. From now on, a decision can be made literally after pressing a few keys. Accordingly, the simplicity and ease of administration is a convenience for all participants in the process.

At the same time, the legal reality shows that despite statements from the executive authorities about the qualitative transition of public administration to digital form, this transformation is not happening so quickly and calmly. This circumstance can be explained in different ways. On the one hand, the development of information technologies is ahead of the development of normative legal acts, including the international legal level, as well as the logistical support of administrative bodies and the welfare of private entities. On the other hand, it turns out that digital technologies do not provide an opportunity to reduce corruption-causing factors. Firstly, the electronic form of interaction itself does not exclude, as the practice of procurement for public needs shows, any direct collusion of the participants in the procedure and corruption manifestations outside the digital field. Secondly, the full electronic form of control and supervisory activities can lead to the creation of "hotbeds of corruption". Indeed, due to the absence of a single law on administrative procedure as a basic standard, individuals are not provided with the opportunity to influence the final decision of administrative bodies – in particular, they are not guaranteed the right to be heard. For example, within the framework of control measures or the pre-trial appeal procedure, no meeting is held to consider objections or complaints, even through the exchange of written documents, if the circumstances objectively require it, but there is no "desire" of the control body. Accordingly, the administrative body can make a decision on the available materials, there are no legal restrictions on this. At the same time, the digital form could just help, since it provides quick and easy interaction. Participating in the meeting via video link or simply sending the requested documents via the application will clearly reduce the financial and time costs of both parties.

^[1] URL: https://komiss-korrup.ru/%D1%81%D1%82%D0%B0%D1%82%D0%B8%D1%81%D1%82%D0%B8%D0%BA%D0%B0-%D0%BF%D0%BE-%D0%BA%D0%BE%D1%80%D1%80%D1%83%D0%BF%D1%86%D0%B8%D0%B8-%D0%B2-2022-%D0%B3%D0%BE%D0%B4%D1%83 / (Mod. date: 30.09.2023).

^[2] URL: https://www.kommersant.ru/doc/5708590 (Mod. date: 30.09.2023).

^[3] In the same place.

^[4] Here and further, the acts are given from the ATP "ConsultantPlus".

^[5] When accessing the website of the Russian State Library (URL: https://search.rsl.ru /) with the search query: digitalization and anti-corruption or with other synonyms (information technology, anti-corruption, etc.), the system issues 184 dissertation studies on jurisprudence, but none of them is directly devoted to the study of digital transformation as a means of countering corruption.

^[6] See the ruling of the Supreme Court of the Russian Federation dated 11/14/2019 No. 308-ES19-22607 in case No. A53-34915/2017; resolution of the Arbitration Court of the Volga-Vyatka District dated 08/20/2018 No. F01-3262/2018 in case No. A79-7456/2016 (ruling of the Supreme Court of the Russian Federation dated 12/18/2018 No. 301-AD18-20638 refused to transfer the case No. A79-7456/2016 to the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation for review in cassation proceedings of this resolution); resolution of the Arbitration Court of the West Siberian District dated 07/02/2018 No. F04-4151/2017 in case No. A70-13955/2016; resolution of the Arbitration Court of the North Caucasian District dated 08/12/2019 No. F08-6560/2019 in case No. A53-34915/2017; resolution of the Arbitration Court of the Ural District dated 10/30/2019 No. F09-6982/19 in case No. A60-37931/2018; resolution of the Fourth Arbitration Court of Appeal dated 02/14/2019 in case No. A19-11886/2015; resolution of the Thirteenth Arbitration Court of Appeal dated 05/7/2018 No. 13AP-6461/2018 in case No. A56-90083/2016; resolution of the Seventeenth Arbitration Court of Appeal dated 01/19/2018 No. 17AP-7092/2017-ACu in case No. A50-3812/2017; resolution of the Twentieth Arbitration Court of Appeal dated 07/03/2018 No. 20AP-3581/2018 in case No. A23-3001/2011; resolution of the Twenty-first Arbitration Court of Appeal dated 02/12/2018 No. 21AP-2958/2017 in case No. A84-2327/2017.

^[7] The National Anti-Corruption Plan for 2021-2024 was approved by Decree of the President of the Russian Federation No. 478 dated August 16, 2021.

^[8] See Decree of the President of the Russian Federation No. 232 dated April 25, 2022 "On the State Information System in the field of anti-corruption Poseidon and Amendments to Certain Acts of the President of the Russian Federation".

^[9] URL: https://mintrud.gov.ru/ministry/programms/anticorruption/9/20 (Mod. date: 30.09.2023).

^[10] URL: http://council.gov.ru/events/news/144093 / (Mod. date: 30.09.2023).

^[11] URL: https://iacis.ru/public/upload/files/1/245.pdf (Mod. date: 30.09.2023).

^[12] URL: http://pravo.gov.ru/proxy/ips/?docbody=&nd=102105334 (Mod. date: 30.09.2023).

^[13] An online car purchase and sale service has been launched in Public Services. URL: https://ria.ru/20220712/gosuslugi-1801897658.html (Mod. date: 30.09.2023).

^[14] Cartel conspiracy // URL: https://fas.gov.ru/news/27346 (Mod. date: 30.09.2023).

^[15] "Passport of the national project "National Program "Digital Economy of the Russian Federation"" (approved by the Presidium of the Presidential Council for Strategic Development and National Projects, Protocol No. 7 dated June 4, 2019).

^[16] Decree of the Government of the Russian Federation dated October 20, 2010 No. 1815-r "On the State program of the Russian Federation "Information Society" (2011-2020)".

^[17] URL: https://xn--80aapampemcchfmo7a3c9ehj.xn--p1ai/projects/tsifrovaya-ekonomika/p-tsifrovoe-gosudarstvennoe-upravlenie-p (Mod. date: 30.09.2023).

^[18] URL: https://www.economy.gov.ru/material/news/minekonomrazvitiya_snizhaet_nagruzku_na_biznes_blagodarya_mobilnomu_prilozheniyu_inspektor.html (Mod. date: 30.09.2023).

^[19] URL: https://www.interfax.ru/digital/808556 (Mod. date: 30.09.2023).

^[20] Ibid.

^[21] URL:https://www.tadviser.ru/index.php/%D0%A1%D1%82%D0%B0%D1%82%D1%8C%D1%8F:%D0%98%D0%BD%D1%82%D0%B5%D1%80%D0%BD%D0%B5%D1%82-%D0%B4%D0%BE%D1%81%D1%82%D1%83%D0%BF_(%D1%80%D1%8B%D0%BD%D0%BE%D0%BA_%D0%A0%D0%BE%D1%81%D1%81%D0%B8%D0%B8( Date of change: 30.09.2023).

^[22] From 07/01/2021, the mandatory pre-trial procedure for reviewing complaints is applied to the types of control included in the list approved by Decree of the Government of the Russian Federation No. 663 dated April 28, 2021 "On Approval of the list of types of Federal State Control (Supervision) in respect of which the mandatory pre-trial procedure for reviewing complaints is applied."

^[23] URL: https://rg.ru/2022/06/02/mihail-mishustin-potreboval-svesti-k-minimumu-chislo-proverok-biznesa.html (Mod. date: 30.09.2023).

^[24] URL: http://government.ru/news/48861 / (Mod. date: 30.09.2023).

^[25] URL: https://knd.ac.gov.ru/pre-trial // (Mod. date: 30.09.2023).

^[26] URL: https://www.fontanka.ru/2021/07/08/70014959 / (Mod. date: 30.09.2023); URL: https://www.fontanka.ru/2022/07/30/71527610 / (Mod. date: 30.09.2023).