THE SYSTEM OF PROTECTION OF APPLICANTS IN ANTI-CORRUPTION PRACTICE: PROSPECTS FOR RUSSIAN APPLICATION
THE SYSTEM OF PROTECTION OF APPLICANTS IN ANTI-CORRUPTION PRACTICE: PROSPECTS FOR RUSSIAN APPLICATION
Anastasia Krazhan
Student, Department of Political Science, Far Eastern Federal University,
Russia, Vladivostok
Alexey Shelest
Student, Department of Political Science, Far Eastern Federal University,
Russia, Vladivostok
ABSTRACT
Corruption is a problem for all spheres of Russian society. The level of their stable work depends on how organizations, both private and public, are protected from corruption risks. In the US, one of the methods of fighting corruption is the protection of whistleblowers. Can this method be applied in Russian anti-corruption practice?
Keywords: corruption, system of protection of applicants, anti-corruption policy of Russia.
To date, the problem of corruption retains its negative impact on the public administration system. Despite the widely implemented set of legal, administrative and organizational measures in recent years, according to the Prosecutor General's Office of Russia, compared with the previous year, the number of corruption-related crimes remained practically unchanged (12,000, which is 0.3% more than a year earlier) [ 6].
Observing the decline in dynamics in the processes of countering and influencing the reduction of the level of corruption in our country, it is worth considering an additional range of tools, the use of which can give a more obvious effect in countering this asocial phenomenon.
One of the aspects of the world practice of combating corruption is the experience of the functioning of the system for protecting whistleblowers about corruption, which, according to the authors, is the most disclosed in the United States of America. An assessment of this tool and an analysis of the functioning of its mechanism may allow it to be used in the anti-corruption activities of the Russian Federation.
Taking into account foreign experience, it is necessary, firstly, to consider approaches to the definition of the concept of “corruption whistleblower”. Secondly, to get acquainted with the current system of protection of applicants for corruption offenses, and thirdly, to analyze the current anti-corruption legal system for the possible application of this experience in Russia.
To understand what constitutes a “whistleblower of corruption”, it is necessary to remember thatThe term “whistleblower” was first used in the United States in the 1970s, when American consumer lawyer Ralph Nader, at a conference on professional liability, defined a “whistleblower” as “the act of a man or woman who, believing that the public interest takes precedence over the interests of the organization in which they work, report that the organization is involved in corrupt, illegal, fraudulent or harmful activities” [5].
If we talk about how this definition is presented in Russia, then in our country it is impossible to talk about the development of an academic approach to the concept of “statement of corruption”, since there is no single legal framework that would regulate the protection of the applicant about corruption. In the legislation of the Russian Federation, the so-called “corruption whistleblower” is a witness, but these concepts should have completely different meanings in anti-corruption processes. With regard to combating corruption, the “applicant” is the initiator of the process, whose determination and courage require encouragement, the “witness”, most often in these circumstances, is a person who knew, but, based on personal interests or under fear of threats, did not report lawlessness, but which means that at any moment, his status can be reclassified as a defendant.
The moral side of the participants in the process has pronounced features, firstly, the witness is enshrined in the procedural legislation. In article 56 of the Criminal Procedure Code or in article 69 of the Civil Procedure Code [4]. That is, any witness has a procedural-legal status and is specifically called to testify. For neglecting to testify, a person will face a number of negative consequences if, of course, this evasion is recorded. The “Corruption Whistleblower” operates from the point of view of certain ethical moral principles. And secondly, any person who has at least some information can be a witness, while a complainant about corruption is a person who has become a victim of corruption offenses [5].
That is, based on all of the above, a “corruption whistleblower” is an individual who has reported corruption offenses affecting his interests or, in his opinion, causing damage to public (state) interests, and in need of protection.
In the United States, a comprehensive whistle-blowing and whistle-blowing system has been established for members of the executive branch of government only. The main regulatory legal act here is the Whistleblower Protection Act 1989.
At the same time, some other laws regulate the disclosure of information in certain areas of activity and apply to employees of the private sector. For example, the Sarbanes-Oxley Act, passed in 2002 to protect investors, contains, among other things, whistle-blower protection provisions [1].
Section 748 of the Dodd-Frank Act of 2010 established a bounty for individuals who report violations of commodity exchange laws to the Commodity Futures Trading Commission, while providing for the prohibition of retaliation against such individuals for disclosure. Similar provisions are contained in Article 922 of the same law regarding the disclosure of information about violations of securities laws to the Securities and Exchange Commission [3].
Supporting these laws are separate measures of protection against reprisals for disclosure of information for suppliers and contractors of the executive authorities established by law.
Reporting incidents of misconduct is an employee responsibility under 2635.101(b)(11) of Title Five of the US Code of Federal Regulations. The specified provision of the Code states that the employee must disclose information about waste, fraud, abuse and corruption to the relevant authorized bodies [2].
That is, we can say that the system of protection of applicants for corruption in the United States is quite developed. This confirms the existence of a progressive regulatory framework. Therefore, it is worth considering the possibilities of such a model for the protection of witnesses to corruption crimes in the Russian Federation.
Analyzing the current practice of Russia in the protection of applicants for corruption, it was revealed that according to Part 4 of Art. 9 of the Federal Law of December 25, 2008 No. 273-FZ “On Combating Corruption”, protection is provided only to state and municipal employees, while employees of the Central Bank of the Russian Federation, federal funds, state companies and corporations, and other organizations created by the Russian Federation on the basis of federal laws, as well as citizens are deprived of this protection.
Domestic legislation, from the Russian Constitution to the Labor Code, already provides for certain measures to protect applicants. The problem lies in the ineffective implementation of the measures envisaged. This determines the need to adopt a law on the protection of applicants that would have a detailed, detailed legal mechanism for this protection. This determines the need to adopt a law on the protection of applicants that would have a detailed, detailed financial and legal mechanism for this protection and support.
If a “Law on the Protection of Corruption Whistleers” is created in Russia, following the example of the United States, then, firstly, a single law will apply to all persons employed in both the private and public sectors. Secondly, the adoption of a single comprehensive law will create legal certainty in Russia and ensure the consistency of legislation without the need to harmonize individual provisions of various laws. Thirdly, a single law will make it possible to work out all the elements necessary to ensure the effectiveness of legislation, in particular, the existence of a conceptual apparatus, a description of disclosure procedures and channels, a mechanism for monitoring the implementation of the law, and thereby avoid fragmentation of sectoral legislation, which may result in gaps in the legal framework. regulation of the applicant's protection against corruption. Fourth, the proposed mechanism can create a successful motivational base, which will involve the entire Russian society in the process of combating corruption. Fifthly, this law will help ensure the physical safety of the applicants, Russian citizens employed in all spheres of society. That is, the relocation and protection of the applicant, as well as his relatives and relatives, will be provided to eliminate the threat of persecution, intimidation, physical violence and revenge.
In order to ensure the implementation of paragraphs 4 and 5, today it is necessary to form a corruption counteraction fund, filled from the funds of those convicted under corruption articles.
Many legal issues and organizational and administrative decisions require legislative regulation in order to introduce the practice of singling out a “corruption whistleblower”. Taking into account the anti-corruption indicators for the current year, perhaps the Russian legislator should return to work on the Draft Law“On Amendments to the Federal Law “On Combating Corruption” in Part of the Protection of Persons Who Notify of Corruption Offenses”, registered in 2017, but still not made public.
References:
- Sarbanes-Oxley Act of 2002, Public Law 107-204, 116 Stat. 745.
- US Code: Table of Contents. Section 5 article 2635.101(b)(11). URL:5 US Code Part III - EMPLOYEES | US code | US law | LII / Legal Information Institute (cornell.edu)
- Wim Whistleblowing and Organizational Social Responsibility: A Global Assessment, Ashgate Publishing Company, 2006. p.8.
- Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on June 11, 2022). Article 69Code of Civil Procedure of the Russian Federation Article 69. Witness testimony \ ConsultantPlus (consultant.ru)
- Transparency International Report: Alternative to Silence: Whistleblower Protection in 10 European Countries, Berlin, 2009.
- Makarova O.V. Ensuring the safety of persons contributing to the prevention and disclosure of corruption crimes // Journal of Russian Law. No. 7. 2015. - S. 97–105.
- Official site of the "Main Directorate of Regional Security of the Moscow Region". URL:Main Directorate of Regional Security of the Moscow Region (mosreg.ru)