En2013 5 (6)

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ERN LAW MOD ANDTES STA

LEGAL PROBLEMS IN CORRUPTION PREVENTION PROCEDURE OF ARRANGEMENT OF CONFLICT OF INTEREST IN FEDERAL STATE AUTHORITY BODIES DOI: http://dx.doi.org/10.14420/en.2013.5.6

Sergey Mikhaylovich Altunin, Candidate for a Master’s Degree of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration,

e-mail: asiris-9@mail.ru.

Abstract.

Keywords:

The issue of arrangement of conflict of interest in state service is one of key tools of anti-corruption enforcement. That’s why generalization, systematization and reduction to unified pattern of conflict of interest typical situations is important work on perfection of regulatory and legal framework of anti-corruption enforcement in the RF. The paper offers methods of unification during elaboration of normative legal documents and attachment of (interdepartmental interindustry) nature to them. conflict of interest, anti-corruption enforcement, normative legal acts, law-making, duplication, economy principle of law-making, review of typical situations.

Lawmaking is an activity of subjects vested with rule-making competence that is aimed at developing juridical norms. Lawmaking comprises the immediate actions of persons that are authorized by governmental authorities for the following purposes: elaboration, adoption, alteration, introduction of amendments or cancellation of regulatory legal acts.

The lawmaking process is intended to develop mechanisms for the regulation of social relations and is conditioned by objective reality. The dynamics of social life and practice in regard to the formation of legal relationships, and of socioeconomic, political, and spiritual requirements – in short, all of the changing aspects of diverse social life – make it necessary to establish new legal norms that suitably match the social changes, as well as to modify and cancel obsolete rules.

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Juridical science has elaborated a sophisticated lawmaking theory1.

The system of regulatory legal acts for the state as a whole, as well as for a certain branch of law, as implied by the very concept of a system, is understood to be a balanced coordination of all the regulatory acts that serve as components of the general law system, through which they perform cumulative functions. Among other things, this means that there is a need to bring the acts that are in force and new acts that are being adopted into proper correlation, together with the need for a concise interrelationship between common and special provisions and between acts having higher and inferior legal effects. A newly adopted normative act must fit within the conceptual and juridical hierarchy of the acts of the law. At the same time, it must not allow duplication, conflict and chronological errors in regard to other acts.

In October 2012, the Ministry of Labor and Social Protection of the Russian Federation issued the Memorandum «On restrictions, prohibitions, and requirements for official conduct and the prevention of law violations connected with corruption in federal civil service». The Memorandum provided definitions of basic concepts in the field of the prevention of corrupt practices, listed restrictions, obligations and requirements for official conduct and the liability for the nonobservance of the prescribed restrictions and prohibitions, and provided recommendations regarding behavior in situations that could result in corruption of some form. They also published informational tables that summarize the fundamental rights and duties of civil servants that are accompanied by lists of restrictions and prohibitions related to civil service2. Methodologically, this review was based on research in the area of conflicts of interest3.

Among other things, the Memorandum contained a review of typical situations in the field of civil services that involve conflicts of interest in the Russian Federation, along with procedures that are aimed at regulating such situations.

For example: Arzamasov Yu.G. Teorija i praktika vedomstvennogo normotvorchestva v Rossii: monografija. – Moscow: Jurlitinform, 2013 [Theory and Practice of Departmental Rule-Making in Russia: Monograph]; Baranov V.M. Kontseptsija zakonoproekta. – Nizhnii Novgorod, 2003 [Concepts of Draft Legislation]; Boshno S.V. Normativnye pravovye akty Rossiiskoi Federatsii. – Moscow, 2004 [Regulatory Legal Acts of the Russian Federation]; Tolstik V.A. Ierarkhija istochnikov rossiiskogo prava. – Nizhnii Novgorod, 2002 [Hierarchy of the Russian Law Sources]; Kutafin O. Istochniki konstitutsionnogo prava RF. – Moscow, 2004 [Sources of the RF Constitutional Law]; Tikhomirov Ju.A., Kotelevskaja I.V. Pravovye akty: uchebno-metodicheskoe i spravochnoe posobie. – Moscow, 2004 [Legal Acts: Guidance Manual and Reference Aid].

2 Pamjatka ob ogranichenijakh, zapretakh, trebovanijakh k sluzhebnomu povedeniju i preduprezhdeniju korruptsionnykh pravonarushenii, svjazannykh s prokhozhdeniem federalnoi gosudarstvennoi grazhdanskoi sluzhby v Ministerstve truda i sotsialnoi zashchity Rossiiskoi Federatsii. – Moscow: Mintruda, 2012 [Memorandum on restrictions, prohibitions, requirements to official conduct and to prevention of law violations connected with corruption in federal civil service in the Ministry of Labour and Social Protection of the Russian Federation.]

3 For example: Dedov D.I. Konflikt interesov. – Moscow: Volters Cluver, 2009 [Conflict of Interest]; Batishcheva M.A. Sluzhebnye razoblachenija i konflikt interesov // Sovremennye issledovanija sotsialnykh problem. – 2012. – № 9 (17) [Official Disclosures and Conflict of Interest // Modern Studies of Social Problems.]; Veklenko S.V, Panov S.L. Printsipy protivodeistvija korruptsii // Vestnik Voronezhskogo Instituta MVD RF. – 2010. – № 3. – P. 20-24 [Principles of Counteracting Corruption // Herald of Voronezh Institute of the Ministry of Internal Affairs of the Russian Federation.]; Grib V.G., Oks L.E. Protivodeistvie korruptsii. – Moscow: MFPA, 2011. [Counteracting Corruption].

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40 The review considers a set of typical situations in which there is a need to replace an individual who accepts a public position that could result in the creation of a conflict of interest for the civil officer. Per se, this review presents the opposite side of the prohibitions that are being superimposed on civil officers in civil service and that are stipulated by Article 17 of the Federal Law No. 79-FZ «On civil service».

Inter alia, according to the Law, the following is prohibited: - participating, for a fee, in the activities of the regulatory body of a profitmaking organisation, except for cases that are specified by the federal law; - performing entrepreneurial activity; - acquiring securities that can earn income in cases that are specified by the federal law; - acting as a proxy or a third-party representative in the state agency in which one takes on the duties of a civil servant, except as otherwise provided by the Federal Law No. 79-FZ and other federal laws; - receiving, in cases in which it is connected with the discharge official duties as civil servants, rewards from natural and legal persons (in the form of gifts, remunerations in money, loans, services, payment for entertainment, vacations, transportation expenses and other rewards). The gifts received by civil servants in the context of protocol events, business trips and other formal events are duly considered to be federal property and the property of the constituents of the Russian Federation. Per se, these rewards are subject to the conveyance of the property by the civil servant to the state agency in which he or she has assumed duties in the civil service; herein, the Deed of Acceptance shall be signed. This procedure is followed in all cases unless otherwise provided for by the Civil Code of the Russian Federation. After having conveyed the gift that was received by the civil servant in the context of a protocol event, an official business trip or some other formal event, he or she can buy it according to the order set up by the regulatory legal acts of the Russian Federation; - leaving the territory of the Russian Federation on matters connected to the performance of their official functions at the expense of natural and legal persons, except for official business trips that conform with the international treaties of the Russian Federation or on a reciprocal basis by agreement between the federal state authorities, the state authorities of the constituents of the Russian Federation and the state agencies of other states or international and foreign organisations; - divulging information or using it for purposes unconnected with the civil service, if according to the federal law, this information is recognized as confidential or operation one, and it came to the knowledge of the civil servant in connection with his or her position in a public office; - engaging in, for a fee, activities without the written permission of the employer’s representative, if they are financed exclusively by foreign nations, international and foreign organisations, foreign citizens or persons destitute of nationality, except as otherwise provided by the international treaties of the

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Russian Federation or the legislation of the Russian Federation, and so on.1 Thus, the authors of the Memorandum analysed statistics that reflected the working results received by the Committees on compliance with the requirements regarding the official conduct of civil officers and the regulation of conflicts of interest in different authorities and identified the most common situations in which civil officers have violated the prohibitions stipulated by Federal Law No. 79-FZ «On civil service» and by Federal Law No. 273-FZ «On corruption prevention»; they presented their academic research results in the form of a case study.

Furthermore, the authors make comments on these typical cases in the context of the legislation of the Russian Federation and provide recommendations regarding measures that should be taken, in their opinion, to prevent and resolve conflicts of interest.

Interests, in civil service, differ from interests in commercial activities. First, in civil service, «interest» is understood to be the expected results of the official activities of state and local government officers that conform to their enforcement powers, and thus, the results of their activities are based on regulatory legal acts.

In civil service, «interest» presents the expected results of the civil officer’s official activities. These expected results stem from their activities, which are subject to their enforcement powers and normative acts. Accordingly, a conflict of interest emerges when civil officers do not observe the customary rules of conduct, norms, codes, and prohibitions.

The specific character of the interests of civil officers is attributed to the fact that they address solutions to social problems. For this reason, it contradicts the very nature of their services if state and local government officers add a particularly subjective nature to their official interests in which they strive to derive a personal benefit, rather than to promote the public interest. Furthermore, in the course of performing their official duties, civil servants represent the interests of society and the state; hence they represent the objective aspect of the interests. The following conclusion has been reached by many researchers: «We ought to note the erroneousness of attaching to the individual’s interests an exclusively subjective nature (interpreted as his or her personal drive to concentrate on self-profit) or an objectively-subjective nature (interpreted as an interest that can contain both objective, i.e., unaffected by individual intention, and subjective features). In fact, the interest of the person or of the social class, as well as the interest in general is an objective entity».2 However, we should not overlook the fact that all individuals are unique in their own way and everyone has different goals and motives, which inevitably results in the following objective fact: People can form groups according to Federalnyi zakon ot 27 ijulja 2004 g. № 79-FZ «O gosudarstvennoi grazhdanskoi sluzhbe Rossiiskoi Federatsii» (statutory wording dated 02.07.2013) (Section 7 Article 19, Section 10 Article 22, Section 12 Article 48 of the Federal Law № 79-FZ) [The Federal Law dated 27.07.2004 No. 79-FZ «On civil service for the Russian Federation»] 2 Atamanchuk G.V. Teorija gosudarstvennogo upravlenija. – Moscow: Omega-L, 2004. – P. 99. [The State Administration Theory.]

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42 various patterns, but for all of the patterns, it is always true that personal interests will persist within any group.

We should also take into account that the self-interest of a civil servant can emerge in cases in which a profit is received or can be received by a certain set of people. That set of people can include the servant’s family members (not only parents, spouses, children, siblings of the civil servant, but also his or her in-laws).

This is why the term «relatives and/or other persons whose profit can be associated with the self-interest of the civil servant» is used to determine who may belong to such a set.

At the same time, it is necessary to understand that the very concept of profit per se is not defined in Russian legislation. We assume that the following definition of profit can be used for our purposes: Profit is a privilege or preference that the civil officer can derive from his or her official position, as well as other advantages (e.g., that can be derived from running a nonprofit institution or owning property and securities).

There are a variety of situations in which civil servants may perform their official duties that fall within the aforementioned definitions of conflicts of interest.

In view of the diversity of the private interests of civil servants, a comprehensive checklist of such situations is not practical.

Nevertheless, the review under analysis lists typical situations in which it can be anticipated that it is highly probable that a conflict of interest may manifest itself, irrespective of the civil officer’s departmental identity. However, the set of such situations must somehow correlate with the particular administrative entity to which the civil servant belongs because it is not possible to unify everything.

The Ministry of Labour and Social Protection sent the typical situations review, in the form of a letter, to the federal state agencies of the Russian Federation (Letter dated 15.10.2012 No. 18-2/10/1-2088 «On the review of typical situations of conflicts of interest in the civil service of the Russian Federation and on the procedures aimed at their regulation»).

The Letter was circulated by the decision of the Chief Executive of the Presidential Administration of the Russian Federation, S.B. Ivanov. With the goal of ensuring a unified approach to the regulation of conflicts of interest, the Letter ordered the federal state agencies to prepare, on the ground of said review, Memorandums for their civil officers that would reflect the specific features of their particular courses of action. Meanwhile, the Ministry of Labour of Russia was obliged to monitor the process in which the federal state agencies issued the Memorandums specified by the Letter, and to report the results to the Presidium of the Council on Corruption Prevention under the President of the Russian Federation.

Several federal agencies of state authorities issued such Memorandums, including the Ministry of Internal Affairs, the Ministry of Foreign Affairs, the Ministry of Justice, the Ministry of Finance, the Prosecutor-General’s Office, the Federal Customs Service, and the Federal Agency of the Officers of Justice. All but one of the above listed agencies merely copied the Letter with no alterations, i.e.,

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no specific features were reflected in their Memorandums. Only the Ministry of Justice modified the typical situations so that they reflected the character of the activities at that particular agency.

Moreover, some other federal agencies of state authorities, e.g., the Ministry of Defence, the Ministry of Emergencies (MChS), the Ministry of Education and Science, the Ministry of Agriculture, the Ministry of Public Health, the Federal Migration Service, and the Federal Antimonopoly Service, do not have such Memorandums at all. These agencies, in their corruption prevention documents, refer to Federal Law No. 79-FZ «On civil service» and Federal Law No. 273-FZ «On corruption prevention» and to the prohibitions and rules of conduct for civil officers that are specified by these laws.

For example, the Ministry of Defence produced the following regulatory documents to address corruption prevention issues: - Decree of the Minister of Defence of the Russian Federation dated 11.05.2010 No. 444 «On the procedure of reporting to the Minister of Defence of the Russian Federation about attempts to impel members of the Military Forces of the Russian Federation into law infringements connected with corruption»; - Decree of the Minister of Defence of the Russian Federation dated 22.04.2011 No. 555 «On the adoption of the Code of Ethics and Official Conduct for Federal civil servants of the Ministry of Defence of the Russian Federation»; - Decree of the Minister of Defence of the Russian Federation dated 28.06.2011 No. 1050 «On the procedure of reporting to the employer representative about attempts to impel a federal civil servant of the Ministry of Defence of the Russian Federation into law infringements connected with corruption»; - Decree of the Minister of Defence of the Russian Federation dated 10.06.2013 No. 445 «On the approval of the composition of the Committee of the Ministry of Defence of the Russian Federation on the compliance with requirements for official conduct for federal civil servants and for regulating conflicts of interest».

All federal agencies of state authorities produced similar documents.

At the same time, the above listed agencies did not issue Memorandums. It was the Ministry of Labour of Russia that was obliged to monitor how federal state agencies prepared their Memorandums and report the results of its monitoring to the Presidium of the Council on Corruption Prevention under the President of the Russian Federation. Evidently, this assignment was not duly executed.

Herein we must emphasize the following point: The lawmaking process is characterized by a number of distinguishing activities, such as the elaboration, adoption, introduction of additions and amendments, or cancellation of regulatory legal acts; in contrast, the process of the duplication of the same regulatory legal acts in different agencies cannot be interpreted as lawmaking, because, in the course of this work, new norms are not created, but are merely copied from certain documents that already are in effect.

In the adoption of regulatory legal acts, the principle of economy in lawmaking activity must be borne in mind. In the first place, this principle implies the elimination of duplication in regulatory legal acts, as well as the mutual provision of

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44 information by different legal entities during the stage when a legislative proposal is being prepared. The economic efficiency requirement means that the number of acts concerning the same subject-matter should be reduced to a minimum to achieve the improved readability of regulatory materials, to make its application process easier, and to optimally facilitate recordkeeping and filing functions.

Presumably, it will increase efficiency if, during the development of regulatory legal acts on the federal level, lawmakers generate acts that are universal in form and cover practically all spheres of social life in such a way that they have an interdepartmental (interindustry) character. The application of this approach would allow the elimination of the duplication of the same document in all federal agencies of state authorities.

The regulatory legal act will have a unified form and its validity will be extended to all agencies without exception.

This approach can be exemplified by a regulatory legal act that was developed by the Ministry of Labour and Social Development of the Russian Federation and the Ministry of Energy in 2001. This act is called the «Interindustry job safety rules (safety regulations) for the maintenance of electric installations»; it regulates the relationships that relate to this matter and is valid for all agencies and branches.

It is a unified document that eliminates the duplication that results from the development of many identical regulatory legal acts by federal authorities that may differ from each other only in the names of the regulatory bodies.

This means that civil officers would have more time to work for the benefit of the country instead of participating in the pseudo-lawmaking process of duplicating regulations.

Indeed, if it becomes necessary to develop a regulatory legal act that will relate to a certain agency’s specific character, such an act will be easy to develop on the basis of the corresponding interdepartmental document by «giving it another brush», so that it exhibits the true and correct view of the specific conditions that exist in a particular branch. Then, accordingly, a regulatory legal document that is, in fact, new, will be adopted that will adhere to all of the requirements and principles of lawmaking.

References 1 Arzamasov Yu.G. Teorija i praktika vedomstvennogo normotvorchestva v Rossii: monografija. – Moscow: Jurlitinform, 2013. [Theory and Practice of Departmental Rule-Making in Russia: Monograph.]

2 Atamanchuk G.V. Teorija gosudarstvennogo upravlenija. – Moscow: Omega-L, 2004. – P. 99. [The State Administration Theory.]

3 Baranov V.M. Kontseptsija zakonoproekta. – Nizhnii Novgorod, 2003.

[Concepts of Draft Legislation.]

4 Batishcheva M.A. Sluzhebnye razoblachenija i konflikt interesov // Sovremennye issledovanija sotsialnykh problem. – 2012. – № 9 (17). [Official Disclosures and Conflict of Interest // Modern Studies of Social Problems.]

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5 Boshno S.V. Normativnye pravovye akty Rossiiskoi Federatsii. – Moscow, 2004. [Regulatory Legal Acts of the Russian Federation.]

6 Veklenko S.V., Panov S.L. Printsipy protivodeistvija korruptsii // Vestnik Voronezhskogo Instituta MVD RF. – 2010. – № 3. – P. 20-24. [Principles of Counteracting Corruption // Herald of the Voronezh Institute of the Ministry of Internal Affairs of the Russian Federation.]

7 Grib V.G., Oks L.E. Protivodeistvie korruptsii. – Moscow: MFPA, 2011.

[Counteracting Corruption.]

8 Dedov D.I. Konflikt interesov. – Moscow: Volters Cluver, 2009. [Conflict of Interest.]

9 Kutafin O. Istochniki konstitutsionnogo prava RF. – Moscow, 2004.

[Sources of RF Constitutional Law.] 10 Pamjatka ob ogranichenijakh, zapretakh, trebovanijakh k sluzhebnomu povedeniju i preduprezhdeniju korruptsionnykh pravonarushenii, svjazannykh s prokhozhdeniem federalnoi gosudarstvennoi grazhdanskoi sluzhby v Ministerstve truda i sotsialnoi zashchity Rossiiskoi Federatsii. – Moscow: Mintruda, 2012.

[Memorandum on the restrictions, prohibitions, requirements for official conduct and on the prevention of law violations connected with corruption in federal civil service in the Ministry of Labour and Social Protection of the Russian Federation.]

11 Decree of the Minister of Defense of the Russian Federation dated 10.06.2013 No. 445 «On approval of the composition of the Committee of the Ministry of Defense of the Russian Federation on compliance with requirements for official conduct for federal civil servants and the regulation of conflicts of interest».

12 Decree of the Minister of Defense of the Russian Federation dated 11.05.2010 No. 444 «On the procedure of reporting to the Minister of Defense of the Russian Federation about attempts to impel members of the Military Forces of the Russian Federation into law infringements connected with corruption».

13 Decree of the Minister of Defense of the Russian Federation dated 22.04.2011 No. 555 «On adoption of the Code of Ethics and Official Conduct for Federal civil servants of the Ministry of Defense of the Russian Federation».

14 Decree of the Minister of Defense of the Russian Federation dated 28.06.2011 No. 1050 «On the procedure of reporting to the employer representative about attempts to impel a federal civil servant of the Ministry of Defense of the Russian Federation into law infringements connected with corruption».

15 Tikhomirov Ju.A., Kotelevskaja I.V. Pravovye akty: uchebnometodicheskoe i spravochnoe posobie. – Moscow, 2004. [Legal Acts: Guidance Manual and Reference Aid.] 16 Tolstik V.A. Ierarkhija istochnikov rossiiskogo prava. – Nizhnii Novgorod, 2002. [Hierarchy of the Russian Law Sources.]

17 Federalnyi zakon ot 27 ijulja 2004 g. № 79-FZ «O gosudarstvennoi grazhdanskoi sluzhbe Rossiiskoi Federatsii». [The Federal Law dated 27.07.2004 No. 79-FZ «On civil service for the Russian Federation».]