© S. A. Khvalev

The Russian legislation is a complex structural formation. It is quite difficult to ensure its quality, as well as the quality in terms of anti-corruption categories. A legal act will be effective only if it is efficiently worked from the political, economic, legal, legal and technical side. In this regard, quality as a conceptual feature of a system of legal acts is one of the main goals of the activity of both public authorities and civil institutions. Poor-quality legal acts cause many negative phenomena in society, including corruption. Therefore, society, representatives of public authorities, persons and legal bodies are interested in easy-to-use mechanisms which provide finding out, identification and elimination of provisions of legal acts and their drafts that contain low-quality regulations contributing to corruption. At the same time, such an instrument for checking legal acts and their drafts itself should obviously be of high quality, otherwise it will be just meaningless.

In this regard, the appropriate anti-corruption instrument for checking legal acts and their drafts must meet the following criteria:

1) Legal nature, i.e. the procedure for using the instrument should be clearly stipulated in the regulation.

2) Expert approach, i.e. this instrument should be based on specific knowledge about the shortcomings of legal regulation which cause corruption.

3) Unifying nature, i.e. the rules for using the instrument should be standardized, that would contribute to objective and verifiable results of its use.

4) Obligatory nature, i.e. use of such an instrument should be unfailing, at least in the part of rule-making process.

Thus, so-called anti-corruption expertise of legal acts and their drafts (hereinafter referred to as anti-corruption examination) was adopted in legislative and law enforcement process.

Some of the first references to the necessity of anti-corruption expertise can be found in the early documents regulating administrative reform in the Russian Federation (since 2003). Then the Federal Law No. 273-FZ as of December 25, 2008 “On Combating Corruption” which is the basic legal act in the field of anti-corruption was adopted. According to Article 7 of the before mentioned Federal Law, anti-corruption expertise is fixed as one of the main measures for preventing corruption. It is also extremely important that the Federal Law No. 172-FZ “On anti-corruption expertise of normative legal acts and drafts of normative legal acts” was adopted as early as on July 17, 2009. The given Federal Law has established legal, organizational and partially methodological base of anti-corruption expertise.

It should be noted that the legal regulation of anti-corruption expertise in the Russian Federation has rather complicated regulatory framework. Demonstrative scheme of the system of legal regulation of expertise is presented below:

 

	The Federal Law “On anti-corruption expertise of normative legal acts and drafts of normative legal acts” - establishes legal, organizational and some methodological foundations of anti-corruption expertise
	Decree of the Russian Government “On anti-corruption expertise of normative legal acts and drafts of normative legal acts” Directives (orders) of certain authorities on anti-corruption expertise - establish procedure for organizing anti-corruption expertise in a certain body; - set out the rights and obligations of structural units (officials) of a certain body for conducting anti-corruption expertise.
	Methodological recommendations for conducting anti-corruption expertise - determine a unified list of corruptogenic factors for all expertizing bodies; - establish some methodological rules for conducting anti-corruption expertise.

 

According to the Federal Law “On anti-corruption expertise of normative legal acts and drafts of normative legal acts”, anti-corruption expertise is an activity aimed at identifying corruptogenic factors. Whereas, the corruptogenic factor is a provision of legal acts (drafts of legal acts) creating conditions for corruption.

The main principles of organization of anti-corruption expertise are as follows:

1) Mandatory anti-corruption expertise of drafts of legal acts;

2) Assessment of a legal act (a draft of an act) in its correlation with other legal acts;

3) Validity, objectivity and verifiability of the results of anti-corruption expertise;

4) Competence of persons conducting anti-corruption expertise;

5) Cooperation of authorities with civil institutions in conducting anti-corruption expertise.

The Federal Law states the following subjects obligated to conduct anti-corruption expertise:

- Public Prosecution Office of the Russian Federation;

- Ministry of Justice of the Russian Federation;

- Federal executive bodies with rule-making powers;

- Public authorities of the constituent entities of the Russian Federation with rule-making powers;

- Local government bodies with rule-making powers.

The above mentioned bodies organize anti-corruption expertise in accordance with the procedures adopted by these authorities and with the Methodology established by the Government of the Russian Federation.

It is extremely important that the direct competence of the above mentioned bodies for conducting anti-corruption expertise is established at the legislative level. This way, it is determined that the prosecuting authorities, while exercising their powers, conduct anti-corruption expertise of normative legal acts, regarding the issues related to:

1) Rights, freedoms and duties of man and the citizen;

2) State and municipal property, state and municipal service, budget; tax, customs, forestry, water, land, urban planning and environmental legislation, licensing legislation, as well as legislation on state corporations, foundations;

3) Social guarantees of state (municipal) employees.

The Ministry of Justice of Russia conducts anti-corruption expertise of:

1) Drafts of federal laws, drafts of decrees of the Russian President and drafts of decrees of the Russian Government;

2) Drafts of amendments of the Russian Government to drafts of federal laws prepared by federal executive bodies, other state bodies and organizations;

3) Normative acts of federal executive bodies and other organizations, which affect the rights, freedoms and duties of man and the citizen, establish a legal status of organizations, as well as municipal charters;

4) Legal acts of the constituent entities of the Russian Federation.

Other bodies conduct anti-corruption expertise of the normative legal acts (drafts of acts)adopted by them.

Regarding the results of anti-corruption expertise, the Federal Law stipulates that the corruptogenic factors identified during the expertise are presented in the requirement of a prosecutor to amend the relevant regulatory act or in the appeal to the court. In case that corruptogenic factors are identified by the Russian Ministry of Justice or another body, such information is presented in the expertise report.

The requirement of a prosecutor or the report of the Ministry of Justice of the Russian Federation must mandatorily contain the corruptogenic factors identified in the legal act (the draft of the act) and propose methods for their elimination.

It is crucial that, according to the Federal Law, the requirement of a prosecutor to amend a legal act is subject to mandatory consideration by the relevant body no later than within ten days, and it should be taken into account by the body that issued the act in accordance with its competence.

The reports of the Russian Ministry of Justice or another body, drawn up during the anti-corruption expertise of legal acts of federal executive bodies, other state bodies and organizations which affect the rights, freedoms and duties of man and the citizen, establish the legal status of organizations, as well as municipal charters, are obligatory.

In all other cases, such reports are advisory and subject to mandatory consideration by the relevant body.

The Federal law has not ignored the regulation of public anti-corruption expertise. It stipulates that civil institutions and the citizens of the Russian Federation may conduct independent anti-corruption expertise at their own expense in accordance with the procedure provided by the legal acts.

It should be noted here that the procedure and conditions for accreditation of experts on independent anti-corruption expertise were also established by a separate legal act.

At the same time, there are restrictive conditions specified for those who may conduct independent anti-corruption expertise. This way, conduction of independent anti-corruption expertise is not allowed for:

1) Citizens with an outstanding conviction or unexpunged criminal record;

2) Citizens, who have a record of being dismissed due to loss of trust caused by committing corruption offenses, which is reflected in the register of persons dismissed due to loss of trust;

3) International or foreign organizations;

4) Non-profit organizations with the functions of a foreign agent.

The report based on the results of an independent anti-corruption expertise is advisory and subject to mandatory consideration by the body to which it was addressed, within thirty days after the date of its receipt.

In order to determine the procedure for conducting anti-corruption expertise, the Government of the Russian Federation adopted Decree No. 96 as of February 26, 2010 “On anti-corruption expertise of normative legal acts and drafts of normative legal acts” based on the Federal Law. The given decree established two important documents:

1)Rules for conducting anti-corruption expertise (hereinafter referred to as the Rules);

2) Methodology for conducting anti-corruption expertise (hereinafter referred to as the Methodology).

It was established that the Rules regulate the procedure for conducting anti-corruption expertise by the Ministry of Justice of the Russian Federation.

It should be noted immediately that, due to the need to optimize the activity of the Ministry of Justice of Russia, anti-corruption expertise is not carried out as a separate procedure. So, according to the Rules, the given Ministry conducts anti-corruption expertise together with legal expertise, state registration of acts or control of application of legal acts, depending on the type of a legal act or a draft being considered.

The rules also determine the procedure for conducting independent anti-corruption expertise. Thus, it was established that independent anti-corruption expertise is carried out by legal bodies and experts accredited by the Ministry of Justice of Russia.

Regarding independent anti-corruption expertise, it was stipulated that in order to ensure availability of its conduction, legislative drafters upload the drafts on regulation.gov.ru website on the Internet, specifying the start and end dates for accepting reports based on the results of independent anti-corruption expertise. At the same time, drafts of federal laws, drafts of decrees of the President of the Russian Federation, drafts of decrees of the Government of the Russian Federation are uploaded on the Internet for at least 7 days.

The results of independent anti-corruption expertise are presented in the report in the form approved by the Ministry of Justice of Russia.

Accredited legal bodies and persons forward the reports based on the results of independent anti-corruption expertise to legislative drafters, and their copies to the Russian Ministry of Justice.

The report based on the results of independent anti-corruption expertise is advisory and subject to mandatory consideration by the relevant body, organization or official to whom it was forwarded, within 30 days after the date of its receipt. Based on the results of its consideration, the citizen or organization that conducted the independent anti-corruption expertise is provided with a substantiated response, which contains the consideration of the results and (or) the reasons for disagreement with the corruptogenic factor identified in the legal act or the draft of the act.

As it was noted above, in order to organize anti-corruption expertise, state authorities (except the Ministry of Justice of Russia)establish their own procedures for its conduction, based on the provisions of the Federal Law. To implement this provision, all bodies with legislative powers have adopted the relevant documents. A list of legal acts establishing the procedure for conducting anti-corruption expertise in federal authorities is attached.

In order to establish common rules for conducting anti-corruption expertise and minimize the possibility of making biased conclusions, a unified document, containing methodology for conducting an appropriate expert evaluation, was developed for all authorities and independent experts.

Application of the Methodology is mandatory for all bodies conducting anti-corruption expertise.

However, the Methodology itself contains only one rule related to dynamic or organization of the expertise flow. This rule indicates the necessity to conduct an anti-corruption expertise of each norm of a legal act or each provision of its draft. According to the authors of the Methodology, such an approach will help to ensure the validity, objectivity and verifiability of the results of anti-corruption expertise.

The rest of the Methodology is devoted to listing corruptogenic factors subject to be investigated by experts in their study.

These corruptogenic factors are divided into several groups as follows.

1) Corruptogenic factors that cause unreasonably wide scope of discretion or the possibility to apply exceptions to the general rules unreasonably:

- a wide discretionary power – absence or uncertainty of the terms, conditions or basis for making a decision, overlap of powers of a government body or an official;

- determination of competence as “having the right to” – a dispositive statement of the capability of authorities, organizations or officials to take actions regarding citizens and organizations;

- selective change in scope of rights – the possibility of unjustified application of exceptions from the general rule for citizens and organizations at the discretion of authorities or officials;

- excessive freedom of subordinate rulemaking – blanket and reference rules, leading to adoption of subordinate laws that invade the competence of the authority or organization which adopted the original normative legal act;

- adoption of a legal act beyond the competence – violation of the competence of the authority, organizations, their officials in the adoption of legal acts;

- filling legislative loopholes with the help of subordinate laws while there is no legislative delegation of the relevant powers – the establishment of general compulsory rules of conduct in a subordinate law in the absence of a law;

- absence or incompleteness of administrative procedures – the absence of the procedure or one of the elements of the procedure for taking certain actions by authorities, organizations, their officials;

- rejection of tendering (auction) procedures – fixation of an administrative procedure for granting rights (goods);

- norm collisions – contradictions, including internal ones, between norms that create for authorities, organizations, their officials the possibility of arbitrary choice of rules to be applied in a particular case.

2) Corruptogenic factors containing vague, difficult to fulfill and (or) burdensome requirements for citizens and organizations:

- inflated requirements for a person imposed for exercising his right – issue of vague, difficult to fulfill and burdensome requirements for citizens and organizations;

- abuse of an applicant’s right by authorities, organizations, their officials – lack of clear regulation of the rights of citizens and organizations;

- legal linguistic uncertainty – use of unsettled, ambiguous terms and evaluative categories.

It should also be noted that in order to organize a unified conduction of anti-corruption expertise in federal executive bodies, in 2012 the Presidential Anti-Corruption Council developed Methodological recommendations “Organization of anti-corruption expertise of normative legal acts and their drafts in federal executive bodies” (hereinafter referred to as methodological recommendations).

Essentially, the methodological recommendations are a guiding document containing a certain list of proposals regarding what is advisable for authorities with rule-making powers to include in anti-corruption expertise procedures adopted by them.

The methodological recommendations determine that anti-corruption expertise should be carried out by competent persons who have passed appropriate educational programs. An authority is recommended to determine the structural unit responsible for organizing and conducting anti-corruption expertise. At the same time, it is advisable that the legal service of the body performs such functions.

According to the methodological recommendations, anti-corruption expertise of existing legal acts is carried out by an authorized structural unit of an authority during monitoring of their application, while anti-corruption examination of drafts of legal acts is carried out during their legal expertise.

 

 

FEDERAL AUTHORITIES, FEDERAL COURTS, PROSECUTORIAL OFFICE	LEGAL ACTS
Federal ministries
The Ministry of Internal Affairs of the Russian Federation	Decree 02\24\2012 N 120
The Ministry of Health of the Russian Federation	Decree 09\24\2012 N 218н
The Ministry of International Affairs of the Russian Federation	Decree 09\19\2013 N 17502
The Ministry of Culture of the Russian Federation	Decree 12\15\2010 N 774
The Ministry of Defence of the Russian Federation	Decree 12\19\2011 N 2610
The Ministry of Education of the Russian Federation	Decree 10\30\2018 N 158
The Ministry of Science and Higher Education of the Russian Federation	Decree 07\26\2018 N 9н
The Ministry of Natural Resources and Environment of the Russian Federation	Decree 11\03\2009 N 363
The Ministry of Industry and Trade	Decree 04\08\2014 N 643
The Ministry of the Russian Federation for Civil Defence, Emergencies and Elimination of Consequences of Natural Disasters	Decree 06\29\2010 N 299
The Ministry for Development of Russian Far East	Decree 10\01\2012 N 31
The Ministry of the Russian Federation for North Caucasus Affairs	Decree 05\14\2015 N 65
The Ministry of Digital Development, Communications and Mass Media of the Russian Federation	Decree 07\16\2010 N 95
The Ministry of Agriculture of the Russian Federation	Decree 07\10\2016 N 233
The Ministry of Sport of the Russian Federation	Decree 03\28\2014 N 167
The Ministry of Transport of the Russian Federation	Decree 01\26\2011 N 26
The Ministry of Finance of the Russian Federation	Decree 09\12\2019 N 145н
The Ministry of Economic Development of the Russian Federation	Decree 11\23\2009 N 482
The Ministry of Energy of the Russian Federation	Decree 10\26\2009 N 459
The Ministry of Justice of the Russian Federation	Decree 10\04\2013 N 187
The Ministry of Labor and Social Protection of the Russian Federation	Decree 04\02\2014 N 169н
The Ministry of construction and housing and communal services of the Russian Federation	Decree 01\19\2017 N 36/пр
Federal services and agencies
The Federal Service of the National Guard Troops of the Russian Federation	Decree 06\30\2018 N 228
The State Courier Service of the Russian Federation	Decree 05\31\2010 N 167
The Federal Antimonopoly Service	Decree 10\16\2015 N 976/15
The Federal Tax Service	Decree 12\09\2014 N ММВ-7-7/624@
The Federal Security Service of the Russian Federation	Decree 11\24\2009 N 606
The Federal Guard Service	Decree 05\07\2019 N 60
The Federal Service for State Registration, Cadastre and Cartography	Decree 04\15\2010 N П/138
The Federal State Statistics Service	Decree 12\26\2011 N 507
The Federal Penitentiary Service	Decree 03\18\2010 N 97
The Federal Accreditation Service	Decree 01\20\2014 N 77
The Federal Service for Veterinary and Phytosanitary Surveillance	Decree 10\25\2010 N 413
The Federal Service for Military-Technical Cooperation	Decree 05\06\2010 N 34-од
The Federal Service for Hydrometeorology and Environmental Monitoring	Decree 09\18\2018 N 393
The Federal Service for Intellectual Property	Decree 04\06\2011 N 39
The Federal Service for Supervision of Consumer Rights Protection and Human Well-Being	Decree 12\19\2013 N 952
The Federal Service for Health Supervision	Decree 08\04\2011 N 3870-Пр/11
The Federal Service for Supervision of Education and Science	Decree 05\06\2014 N 616
The Federal Service for Supervision of Natural Resources	Decree 12\07\2009 N 363
The Federal Service for Supervision of Telecommunications, Information Technologies, and Mass Communications	Decree 01\09\2014 N 1
The Federal Service for the Supervision of Transport	Decree 08\31\2010 N ГК-995фс
The Federal Service for Technical and Export Control	Decree 10\23\2009 N 372
The Federal Service for Labor and Employment	Decree 10\28\2014 N 382
The Federal Service for the Regulation of the Alcohol Market	Decree 10\01\2010 N 57н
The Federal Service for Financial Monitoring	Decree 03\31\2010 N 86
The Federal Service for Ecological, Technological and Nuclear Supervision	Decree 03\12\2010 N 152
The Federal Bailiff Service	Decree 01\14\2014 N 2
The Federal Customs Service	Decree 12\16\2014 N 2459
The General Directorate of Special Programs of the President of the Russian Federation	Decree 02\17\2015 N 7
The Federal Agency for Water Resources	Decree 06\08\2010 N 170
The Federal Air Transport Agency	Decree 09\17\2010 N 356
The Federal Agency for Railway Transport	Decree 06\29\2011 N 306
The Federal Agency of Sea and River Transport	Decree 05\12\2015 N 43
The Federal Agency for Scientific Organizations	Decree 12\25\2013 N 11н
The Federal Agency for State Reserves	Decree 01\25\2010 N 10
The Federal Agency for the Affairs of the Commonwealth of Independent States of Compatriots Living Abroad and International Humanitarian Cooperation	Decree 07\07\2014 N 0127-пр
The Federal Agency for Subsoil Use	Decree 02\10\2010 N 91
The Federal Agency for Press and Mass Communications	Decree 12\01\2010 N 582
The Federal Agency for Fisheries	Decree 04\13\2010 N 332
The Federal Agency for Technical Regulation and Metrology	Decree 02\04\2010 N 287
The Federal Agency for Tourism	Decree 07\19\2011 N 187
The Federal Agency for State Property Management	Decree 08\ 20\2010 N 233
The Federal Communications Agency	Decree 10\28\2009 N 265
The Federal Archival Agency	Decree 07\20\2010 N 53
The Federal Highway Agency	Decree 12\22\2010 N 94
The Federal Biomedical Agency	Decree РФ 11\13\2010 N 786
The Federal Agency for Nationalities	Decree 07\23\2015 N 14
Federal funds
The Pension Fund of the Russian Federation	Decree 11\18\2010 N 317п
The Social Insurance Fund of the Russian Federation	Decree 11\12\2010 N 239
The Federal Compulsory Health Insurance Fund	Decree 05\27\2010 N 103
Courts
The Judicial Department at the Supreme Court of the Russian Federation	Decree 06\01\2012 N 117
Other authorities and organizations
The Prosecutor General of the Russian Federation	Decrees 12\28\2009 N 400, 04\03\2014 N 175
The Investigative Committee of the Russian Federation	Decree 06\03\2012 N 38
The Central Bank of the Russian Federation	Directive 10\17\2016 N 4164-У
The Central Election Commission of the Russian Federation	Decree 11\24\2010 N 228/1503-5
The State Atomic Energy Corporation "Rosatom"	Decree 09\20\2013 N 1/2-НПА
The State Space Corporation Roscosmos	Decree 04\28\2017 N 146