En2013 5 (7)

46

ERN LAW MOD D N A TES STA

COMPARISON OF METHODS OF ANTI-CORRUPTION EXPERT EXAMINATION ESTABLISHED BY THE RF GOVERNMENT AND ADOPTED BY THE RF CONSTITUENT ENTITIES DOI: http://dx.doi.org/10.14420/en.2013.5.7

Tengiz MerabovichTatishvili, Ph.D. Candidate of Political Science and Law Department of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration, e-mail: 000-5555@mail.ru.

Alimbek Tuzemovich Khidzev, Ph.D. Candidate of Political Science and Law Department of the International Institute of State Service and Administration of Russian Presidential Academy of National Economy and Public Administration, e-mail: alimbek.hidzev@gmail.com.

Abstract.

Keywords:

The article makes comparative study of methods of anti-corruption analysis of regulatory legal acts and draft regulatory legal acts established by the RF government and methods of regulatory bodies of the Russian Federation constituent entities. Within the framework of the paper the methods are considered as exemplified by several RF constituent entities, comparative study is made between them, their major faults, distinctive features and contemporary trends are revealed. methods of anti-corruption expert examination of regulatory legal acts, corruptogenic factors, anti-corruption expert examination, expert examination of laws, corruption, anti-corruption enforcement, constituent entities of the Federation, law-making process, lawmaking.

As noted by Kirill Kabanov, Chairman of the non-governmental organization the National Anti-Corruption Committee, the size of the Russian corruption market in 2012 exceeded the fantastic amount of 300 billion dollars.1 This corresponds to approximately 10 trillion rubles, which is comparable with the Russian budget Kirill Kabanov, Chairman of the National Anti-Corruption Committee // lenta.ru. URL: http://lenta.ru/ conf/kkabanov.

1

Tatishvili T.M., Khidzev A.T. «Comparison of methods of anti-corruption expert examination established by the RF government and adopted by the RF constituent entities»

47

revenue for 2014 of about 13 trillion rubles.

The causes of this ubiquitous corruption and its deep roots in Russian society are system-based and interrelated with all spheres of life – political, social, economic etc. An unambiguous answer to the question of how to root out corruption and its accompanying phenomena is not possible, because corruption is not a one-time phenomenon; on the contrary, it has a long historical train behind it. There is a point of view that, as philistines say, the day-to-day realities of life are unimaginable without corruption. This points to how closely and tightly that phenomenon is entwined with daily life.

At the same time, it is beyond question that corruption in the sphere of the management of the state is an undoubted evil, a «scourge to society», trampling on the canons of civil rights and equitable principles, blunting the effectiveness of the management of the state and bringing about a growth in bureaucracy and officialdom in their worst manifestations. All of this suggests the undoubted need for the enforcement of anti-corruption measures. Although legal authors have often talked of how the problem of corruption leads to the failure of law enforcement, the legal analysis of the texts of legal regulations and of draft legal regulations now presents itself as a real countermeasure against corruption. The procedure for this analysis is called the methodology for the anti-corruption expert examination of legal regulations and draft legal regulations.

The methodology for anti-corruption expert examination is understood to be that adopted by the RF Government Decree of February 26, 2010 No 96, «On the anti-corruption expert examination of legal regulations and draft legal regulations.

Methodology for anti-corruption expert examination of legal regulations and draft legal regulations» (which will be known hereafter as the Methodology).

The Methodology is followed by the federal bodies of state power, the bodies of constituent entities, local self-government authorities and independent experts accredited for the anti-corruption expert examination of legal regulations and draft legal regulations, in the course of the anti-corruption expert examination of legal regulations and draft legal regulations. The Methodology lists certain corruptogenic factors which may be detected in a regulatory legal act during an anti-corruption expert examination and which are the criteria for the assessment of the subsequent corruption risk they may entail. These characteristics are the following: а) corruptogenic factors giving a law enforcement official unnecessarily wide limits of discretion or the possibility of an abusive application of exceptions from the general rules, such as: - a wide margin of judgement; - the determination of legal competence according to the formula «has a right»; - a selective change to the extent of rights; - an excessive freedom for subordinate rule-making; - the passing of legal regulations beyond the scope of reference; - the filling of a legislative vacuum with the help of subordinate acts, in the absence of a legislative delegation of jurisdiction for this purpose; - the absence or incompleteness of administrative procedures; and - the rejection of tendering (auction) procedures. b) corruptogenic factors consisting of indefinite, exigeant and/or burdensome

LAW AND MODERN STATES

2013 / № 5

48 demands on citizens and organizations, such as: - the presence of overstated demands on a person to allow him to realize a right that belongs to him; - the abuse of the rights of an applicant by bodies of state power or local self-government authorities (or their functionaries); and - juridico-linguistic uncertainty.

The Methodology can be considered to be a document describing a sequence of actions and a method to be used for analysis in the assessment of the corruptogenicity of a regulatory legal act. Alongside with this, the federal bodies of state power do not limit the public authorities of the RF constituent entities.

It is certainly true that the legal acts of the public authority of an RF constituent entity cannot conflict with legal acts of federal significance. Nevertheless, the methodology adopted at the level of an RF constituent entity may provide for additional arrangements for anti-corruption analysis – for example, an extended list of corruptogenic factors.

An analysis of the legislation of the RF constituent entities can lead one to the conclusion that in most cases there is no separate act containing a methodology for anti-corruption expert examination. Moreover, in the cases in which such a document exists, the legislators have not provided any substantial changes or additions. Let us give some concrete examples.

In the Republic of Bashkortostan the anti-corruption expert examination of draft legal regulations is performed by the legal department of the administration of the urban district of the city of Ufa in the Republic of Bashkortostan, simultaneously with legal expert examination within the framework of the administrative regulations of the urban district of Ufa.1 A particular aspect of the methodology for anti-corruption expert examination in the Republic of Bashkortostan is the performance of anti-corruption expert examination simultaneously with legal expert examination.

In the Republic of Buryatia, anti-corruption expert examination is also performed «in the course of legal expert examination».2 The decision on the performance of anti-corruption expert examination is taken by the same body that issued the normative act: «…expert examination of the corruptogenicity of decrees of the President of the Republic of Buryatia and decrees of the Government of the Republic of Buryatia is performed under separate instructions of the President of the Republic of Buryatia and the Government of the Republic of Buryatia…».3 In Krasnodar Territory, a Procedure for the performance of anti-corruption expert examination of legal regulations and draft legal regulations has been adopted by the Legislative Assembly of the Krasnodar Territory, which is contained in the Decision of June 23, 2010, No 2034-P, «On the procedure for the performance of anti-corruption expert examination of legal regulations and draft Art. 2.1 of the «Procedure for the performance of anti-corruption expert examination of the Decisions of the Head of Administration of the urban district of Ufa City in the Republic of Bashkortostan (and their drafts) of normative nature, regularized by the Decision of the Head of Administration of the urban district of Ufa City in the Republic of Bashkortostan», No 6524 of December 25, 2009.

2 Art. 3 Ch. 2 of the Decree of the Government of the Republic of Buryatia of October 28, 2009 No 398, «On the procedure for the performance of anti-corruption expert examination of normative legal acts and draft normative legal acts».

3 Ibid.

1

Tatishvili T.M., Khidzev A.T. «Comparison of methods of anti-corruption expert examination established by the RF government and adopted by the RF constituent entities»

49

legal regulations adopted by the Legislative Assembly of the Krasnodar Territory».

Basic features are listed in this procedure that distinguish this methodology from the Methodology.

Anti-corruption expert examination of legal regulations is performed in the course of monitoring legislation under the instructions of the Chairman of the Legislative Assembly of the Krasnodar Territory, and takes place in the course of the legal expert examination, in accordance with Articles 71 and 72 of the Regulations of the Legislative Assembly of the Krasnodar Territory.1 Anti-corruption expert examination of the drafts of legal regulations is performed by the legal administration in accordance with the Methodology. Anticorruption expert examination of a regulatory legal act is performed within 30 days of the day on which a Decision is made to bring it into force. According to the results of the anti-corruption expert examination of the regulatory legal act, the legal administration will draw up conclusions in which it specifies: - the grounds for the performance of the anti-corruption expert examination; - reference details for the regulatory legal act (type of regulatory legal act, date of its adoption or signing, its registration number and its name); - any corruptogenic factors that were detected (with a precise explanation of their location in the regulatory act); and - the proposals for the elimination of the corruptogenic factors that were detected.

In some cases the conclusion reflects the negative consequences which could occur if the corruptogenic factors that were detected were not eliminated.

If no corruptogenic factors are detected, a corresponding record is made in the conclusion. The same procedure is followed for draft legal regulations.

An anti-corruption expert examination of a draft regulatory legal act is performed by specialists who have played no part in its development. In the course of the anti-corruption expert examination of a draft regulatory legal act, a representative of the subject of the right of legislative initiative can be brought in to give explanations about the draft. The anti-corruption expert examination of draft legal regulations is performed within 14 days of the date on which the draft is put forward for expert examination. The results of the anti-corruption expert examination of a draft legal regulation are reflected in the conclusion of the legal administration. The result of the anti-corruption expert examination is a basic part of the conclusion of the legal expert examination of a draft regulatory legal act, and occupies a separate place.

If a disagreement arises about the assessment of the corruptogenic factors specified in the conclusion, the committees of the Legislative Assembly of the Krasnodar Territory form working groups to prepare an agreed decision.

After the aforementioned steps have been taken, there is a reference to the Methodology.

In the Kemerovo Region, an issue such as the «failure to set the term for the adoption of a regulatory legal act, the adoption of which is provided by the draft subject to expert examination», was classified as a corruptogenic factor, but the methodology developed by the Centre for Strategic Developments (CSD) in 2004 Approved by the Decision of the Legislative Assembly of the Krasnodar Territory of December 8, 2004, No 1174-P. 1

LAW AND MODERN STATES

2013 / № 5

50 did not classify the non-adoption of a legal regulation as a corruptogenic factor.

At the present time, according to a decision of the Board of Administration of the Kemerovo Region of April 23, 2010, No 160, «…anti-corruption expert examination of legal regulations and draft legal regulations is performed in accordance with the Methodology for anti-corruption expert examination of legal regulations and draft legal regulations approved by the Decree of the Government of the Russian Federation of February 26, 2010 No 96».

The methodology of the Khanty-Mansijsk Autonomous District has been developed on the basis and in furtherance of a memorandum to experts on the primary analysis of the corruptogenicity of a legislative act (Centre for Strategic Developments, 2004). Acting on the basis of these developments of the CSD, the Methodology nevertheless included as a corruptogenic factor the conflict of legal regulatory acts. To detect a conflict, it is necessary to sift not only the legal regulation which is being examined, but also the regulatory acts at various levels on similar matters, and in order to detect a conflict between the acts an expert has to decide whether statutory rules for the selection of a higher priority regulation exist and how clear they are. If there are no such rules, he has to draw the conclusion that a corruptogenic factor is present. According to the Supplement to the Decision of the Governor of the Khanty-Mansijsk Autonomous District – Yugra of December 8, 2011 No 175 Article 2, «An anti-corruption expert examination is performed in accordance with the Methodology for anti-corruption expert examination adopted by the Decree of the Government of the Russian Federation of February 26, 2010 No 96, «On the anti-corruption expert examination of legal regulations and draft legal regulations»».

An anti-corruption expert examination of acts adopted by local selfgovernment authorities is performed, as a rule, by the legal services of a corresponding local self-government authority. For acts adopted by representative bodies of municipalities, an expert examination can be performed by the legal service not only of the staff of a representative body of the municipality, but also by the staff of a local administration taking part in the coordination of the draft decision with the representative body. It is also possible to organize a common joint internal non-departmental anti-corruption expert examination.

According to the memorandum on the performance of the anti-corruption expert examination of municipal regulatory acts of Astrakhan, «…primarily it should be determined whether the subject of legal regulation of the acts relates to matters of local significance or delegated powers or is classified by federal laws, by laws of the constituent entities of the Russian Federation, or by charter of a municipal unit as a power of local self-government authorities.

Secondly, it is recommended that the expert determines exactly what kind of local self-government authority (in accordance with the structure and powers of local self-government authorities determined by the charter of the municipal unit) is responsible for the regulation of the legal relations.

Thirdly, the limits of legal regulation for the local self-government authorities within the framework of those legal relations should be determined (as a rule, they are reflected in the preliminary statement of an act).

After determining the competence of the local self-government authority that adopted the act, the regulatory legal act should be considered with reference to other regulatory legal acts regulating legal relations in the particular sphere.

Tatishvili T.M., Khidzev A.T. «Comparison of methods of anti-corruption expert examination established by the RF government and adopted by the RF constituent entities»

51

After this, one should go on to a direct analysis of corruptogenicity (an anticorruption expert examination) of the regulatory legal act….»

On the basis of the materials presented above, the following conclusions can be drawn: 1 As a universal pattern for the performance of an anti-corruption expert examination, the Methodology adopted by the RF government in 2010 is used.

2 In some cases, as described above, the legislative bodies of the constituent entities adopt acts that are supplemental to the Methodology, but the list of corruptogenic factors is, as a rule, not supplemented. The changes relate, to a large extent, to procedural elements, and are connected with specific aspects of a region.

3 The information presented in official information from governmental and municipal bodies often refers to an obsolete methodology of performance of anticorruption expert examination that was laid down by the RF Government Decree of 2009.

As a general principle, the Methodology for the anti-corruption expert examination of legal regulations and draft legal regulations is a basis for the performance of an anti-corruption expert examination, and the authorities of the RF constituent entities are often oriented towards that legal act. The Methodology was initially developed in 2009 and underwent changes in 2010, resulting in the reduction of the number of corruptogenic factors included in the methodologies of the various constituent entities. Undoubtedly, the Methodology is not ideal, but in the absence of other anti-corruption legal acts it seems advisable for it to be further improved.

References 1. Kabanov K., Chairman of the National Anti-Corruption Committee // Lenta.ru URL: http://lenta.ru/conf/kkabanov.

2. Decision of the Legislative Assembly of the Krasnodar Territory of June 23, 2010 No 2034-P, «On the Procedure for the performance of anti-corruption expert examination of legal regulations and draft legal regulations adopted by the Legislative Assembly of the Krasnodar Region».

3. Decree of the Government of the Republic of Buryatia of October 28, 2009 No 398, «On the procedure for the performance of anti-corruption expert examination of normative legal acts and draft normative legal acts».

4. RF Government Decree of February 26, 2010 No 96 «On anti-corruption expert examination of legal regulations and draft legal regulations».

5. Decision of the Governor of the Khanty-Mansijsk Autonomous District – Yugra of December 8, 2011 No 175, «On approval of the Procedure for the performance of anti-corruption expert examination of normative legal acts of the Khanty-Mansijsk Autonomous District – Yugra and draft legal regulations of the Khanty-Mansijsk Autonomous District – Yugra and revocation of some Decisions of the Governor of the Khanty-Mansijsk Autonomous District – Yugra».

6. Decision of the Legislative Assembly of the Krasnodar Territory of June 23, 2010 No 2034-P, «On the Procedure for the performance of anti-corruption expert examination of legal regulations and draft legal regulations adopted by the Legislative Assembly of the Krasnodar Territory».

7. Supplement No 2 to the Procedure for performance of anti-corruption

LAW AND MODERN STATES

2013 / â„– 5

52 expert examination of Decisions of the Head of Administration of urban district Ufa City of the Republic of Bashkortostan (their drafts) of normative nature // Decision of the Head of Administration of urban district Ufa City of the Republic of Bashkortostan No 6524 of December 25, 2009.

8. The Regulations of the Legislative Assembly of the Krasnodar Territory approved by decision of the Legislative Assembly of the Krasnodar Territory of December 8, 2004 No 1174-P.