International control in the field of anti-corruption:
yesterday, today, tomorrow

Spiridonov Anastas Pavlovich Doctor of Law Director, St. Petersburg Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 191014, Russia, Saint Petersburg, Liteyny, 44 anastas.spiridonov@bk.ru

Murashkin Igor' Yur'evich PhD in Law Associate Professor; Department of Prosecutorial Supervision and Participation of the Prosecutor in the consideration of Criminal, Civil and Arbitration Cases; St. Petersburg Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 196014, Russia, Saint Petersburg, Saint Petersburg, Liteyny, 44 igormurashkin@mail.ru

Since the appearance of the first states and the formation of the bureaucratic apparatus, as an indispensable condition for the exercise of power, and to date, the issues of combating corruption have not lost their urgency and relevance, since the achievement of critical indicators of illegal behavior by officials seriously affects the state of social security of both the state itself and citizens. The use of their official position by officials for personal purposes causes economic shocks, impoverishment of people, citizens' lack of confidence in the ability of the state to ensure their stable and safe existence, protection of vital rights and interests ^{[3, p. 13]}; ^{[5, p. 263]}; ^{[10, p. 215]}. And the strengthening of economic and political interstate relations, the development of transnational corporations (hereinafter referred to as TNCs) have introduced the problem of increasing corruption risks into the sphere of international relations. These and other circumstances predetermined the need for the international community to intervene in the legal regulation of mechanisms to reduce the impact of corruption on legal relations of a political, economic, and social nature, and predetermined the signing of an international treaty – the United Nations Convention against Corruption (the United Nations Convention against Corruption (adopted in New York on 31.10.2003 by Resolution 58/4 at the 51st plenary meeting of the 58th session of the UN General Assembly) // Bulletin of International Treaties. 2006. № 10. October. pp. 7-54) (hereinafter referred to as the UN Convention), which enshrines the basic principles and directions of this activity, anti–corruption measures and mechanisms for their implementation, the importance of which for the formation and development of domestic legislation is difficult to overestimate ^{[15, p. 4]}.

Despite the fact that the issues of international cooperation in the field of combating corruption have become the subject of research by such scientists as G.V. Alekseev, A.E. Epifanov, A.A. Kashirkina, D.A. Lipinsky, V.G. Mammadov, Yu.V. Mishalchenko, A.N. Morozov, A.A. Musatkina and others, the topic of international control of the state and level of Corruption has not been sufficiently studied to date. There are still no effective international institutions that allow for an objective assessment and enforcement of the provisions of the UN Convention. In fact, today each State party that has signed this international treaty determines the criteria for the correct interpretation and limits of the implementation of the obligations assumed.

It should be noted that attempts to implement control over the implementation of anti-corruption legislation at the international level were made before the signing of the Convention.

For example, in 1977. The United States of America (hereinafter referred to as the USA), with the arrogance inherent in the political elite of this state, adopted the Foreign Corrupt Practices Act of 1977 (FCPA — the Foreign Corrupt Practices Act of 1977) (URL: http:fcpa-resource-guide.pdf — Yandex Documents (yandex.ru )), and obliged transnational corporations of other states to comply with the national legal act, which made it possible to replenish the country's budget by imposing penalties on hundreds of millions and even billions of US dollars ^{[17, p. 31]}. However, these measures did not in any way affect the state of corruption in general. At the same time, it is hardly necessary to talk about the idyll in the field of combating corruption in the United States of America itself ^{[11, p. 205, 211, 213]}; ^{[4, p. 566]}.

The next mechanism providing for international control in the field of combating corruption was the activity of the Group of States against Corruption (GRECO), established in 1999, aimed at ensuring the implementation of the provisions of the Council of Europe Convention on Criminal Liability for Corruption (Convention on Criminal Liability for Corruption ETS No. 173 (Strasbourg, January 27, 1999) // Bulletin of International Treaties. 2009. September. No. 9) (hereinafter referred to as the CE Convention), which was ratified by the Russian Federation in 2006. (Federal Law No. 125-FZ dated 07/25/2006 "On Ratification of the Convention on Criminal Liability for Corruption" // Rossiyskaya Gazeta. 07/28/2006. No. 164), and Russia officially joined the international organization on 02/01/2007. The activities of the Russian Federation were subjected to Evaluation Procedures of Evaluation Rounds, which lasted until 2021. The highest state authorities of the Russian Federation have actively joined the work on the implementation of the GRECO recommendations (Decree of the President of the Russian Federation dated 02/03/2007 No. 129 "On the formation of an interdepartmental working group to prepare proposals for the implementation in the legislation of the Russian Federation of the provisions of the United Nations Convention against Corruption of October 31, 2003 and the Council of Europe Convention on Criminal Liability for Corruption from January 27, 1999" // The text of the Decree was not officially published. Access from the ATP "Garant" (date of appeal: 12/24/2023)), in which the leading role was assigned to the Prosecutor's Office of the Russian Federation (order of the Prosecutor General of the Russian Federation dated August 26, 2009 No. 282 "On the organization of work on the implementation of the recommendations of the Group of States against Corruption" // The text of the Order was not officially published. Access from the ATP "Garant" (date of application: 12/24/2023)). In general, this work has had a positive impact on the creation of legal mechanisms to combat corruption in the Russian Federation. In particular, as part of the implementation of these recommendations, a package of federal laws was adopted (Federal Law No. 273–FZ dated December 25, 2008 "On Combating Corruption" // Collection of Legislation of the Russian Federation. 12/29/2008. No. 52 (Part I). Article 6228; Federal Law No. 172–FZ dated 07/17/2009. "On Anti-corruption expertise of normative legal Acts and draft normative legal acts" // Collection of Legislation of the Russian Federation. 07/20/2009. No. 29. St. 3609; Federal Law No. 230–FZ dated 12/03/2012 "On Control over the compliance of Expenses of Persons holding Public Positions and other Persons with their incomes" Collection of Legislation of the Russian Federation. 10.12.2012. No. 50 (part IV). 6953), subordinate regulatory and local legal acts. However, the politicization of the approaches of the governing structures of the European Union and GRECO made it impossible for the Russian Federation to continue participating in the work of this international organization (Federal Law No. 42–FZ of 02/28/2023 "On the Denunciation by the Russian Federation of the Convention on Criminal Liability for Corruption" // Collection of Legislation of the Russian Federation. 03/06/2023. No. 10. St. 1565; Message of the Ministry of Foreign Affairs of the Russian Federation dated 07/04/2023 // Collection of legislation of the Russian Federation. 09/11/2023. No. 35. St. 6808).

Meanwhile, the termination of relations with the Council of Europe in the field of anti-corruption has not reduced the activity of public authorities of the Russian Federation in achieving the goals of minimizing the impact of corruption on the life of the state. In this regard, it should be noted that among the tasks of achieving the goals of ensuring state and public security, such as the prevention and suppression of corruption-related crimes, misuse and embezzlement of budget funds in public authorities and organizations with state participation, as well as compensation for damage caused by such crimes and increasing the level of responsibility for their commission (Decree of the President of the Russian Federation dated 07/02/2021 No. 400 "On the National Security Strategy of the Russian Federation" // Collection of Legislation of the Russian Federation. 05.07.2021. No. 27 (part II). Article 5351).

It should also be noted that the Russian Federation remains committed to the provisions of countering official misconduct provided for by the UN Convention against Corruption, resolutions of the UN General Assembly adopted in order to eradicate corruption, as well as the International Anti-Money Laundering Group (Financial Action Task Force, FATF). International cooperation in the field of criminal prosecution, including on the extradition of persons who have committed corruption-related crimes, ensuring their prosecution on the territory of other States, the discovery and seizure of property obtained by criminal means, is carried out within the framework of the Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Convention on Legal Assistance and legal relations in civil, family and criminal cases (Chisinau, 07.10.2002) // Bulletin of International Treaties. September. 2023. № 9).

The Russian Federation is a key participant in the Interstate Council on Combating Corruption, the body of sectoral cooperation of the Commonwealth of Independent States (hereinafter – the CIS) (Agreement on the formation of the Interstate Council for Combating Corruption (Minsk, October 25, 2013) // Bulletin of International Treaties. January. 2015. No. 1), which is designed to ensure the organization and coordination of anti-corruption activities, the implementation of the obligations of the participating States that have concluded an agreement on its creation, as well as constructive cooperation with international organizations and their structures in the field of combating corruption. It should be noted the importance of this interstate body, even taking into account the geopolitical cataclysms taking place recently and the avoidance of a number of states from participating in international bodies and organizations of the CIS, whose leaders sometimes forget that minimizing corruption offenses is not a private task, but a goal facing the world community in the current historical period.

At the same time, the activities of this organization do not imply mutual control of the CIS member states over the fulfillment of international obligations assumed in the field of combating corruption.

Revealing the topic of this work, it is necessary to answer the question: is it necessary today to monitor the fulfillment of obligations assumed by states in the field of combating corruption by bodies of interstate associations and international organizations?

Of course, taking into account the principle of state sovereignty, as a generally recognized principle of international law, one of the signs of which is non-interference in the internal affairs of the state ^{[9, p. 10]}, priority in building the anti-corruption doctrine of each state and monitoring compliance with its principles should be assigned to its relevant public authorities exercising powers in the field of combating corruption. Subdivisions of such bodies are endowed not only with the authority to exercise State control and supervision over the implementation of international treaties and national legislation in the field of the eradication of offenses committed using the official position of officials, but also with the right to apply sanctions established by law to violators.

Another effective mechanism for ensuring the enforcement of legal norms in the field of anti-corruption is the use of public control opportunities, since public associations of citizens, as a rule, are not burdened with obligations to public authorities, and therefore act quite effectively as arbitrators in evaluating the activities of both individual officials and public authorities and local governments to comply not only with legislative acts regulating legal relations in the field of anti-corruption, but also standards of ethics. Despite the fact that the institutions of public control are not endowed with the right to directly influence the object of control ^{[13, pp. 92-101]}, they remain one of the pillars supporting the stability of state power, including by minimizing the allowed corruption manifestations.

Despite the presence in each State of internal means to ensure the functioning of anti-corruption mechanisms, it should be noted that they are not sufficient without the implementation of external controls in this area of activity. The above-mentioned areas of enforcement of the norms of law provided for by international treaties should primarily include international control, by which we mean the activities of bodies and organizations authorized by international treaties, designed to assess and analyze the policies of States and their public authorities, as well as to develop binding recommendations and proposals and ensure their implementation. This form of control is valuable because it allows you to look at the domestic problems and shortcomings of the legal system in the anti-corruption sphere from the outside, use international experience in fighting corruption, and be in the wake of the course of the international community to eradicate the arbitrariness of individual officials.

At the same time, today external (international) control in the field of combating corruption should be recognized as insufficient. Meanwhile, the availability of international incentives to ensure anti-corruption measures allows not only to preserve the achieved results of activities in this area, but also to ensure the systematic development of means and methods of anti-corruption activities, to maintain the correct guidelines of state policy in achieving the goals of ensuring national and international (primarily economic) security. It should also be noted that the Russian Federation, like any other state, has foreign policy and economic interests in ensuring control over the state of corruption in the world. They are related to the need to create, as far as possible, a unified legal space for the implementation of the provisions of international treaties, improving the system of interstate agreements, convergence and harmonization of national anti-corruption legislation in order to accelerate and simplify procedures for the implementation of international law, etc.

Thus, maintaining international control over the activities of public authorities to combat corruption is one of the tasks in this area of legal relations today. In addition, the relevance of interstate cooperation and control is related to the globalization of economic processes, including through international organizations in which the Russian Federation is directly involved. Cross-border and interstate cooperation, involving significant turnover of goods and money, inevitably becomes a point of attraction for dishonest officials exercising powers in both the public and private sectors of the global economy. In addition, attention is already being drawn to the need to introduce legal mechanisms for controlling the international market ^{[12, p. 30]}.

In this regard, questions arise about how to fill the gap in ensuring the application of international anti-corruption law and whether there are opportunities for this.

From our point of view, today there is a need to create an interstate body to address issues of ensuring compliance with the provisions of international treaties on combating corruption and other crimes and offenses, the commission of which is associated with the illegal activities of certain representatives of the public and private sectors. At the same time, it is the Russian Federation that currently has the potential to become the initiator and conductor of the idea of creating such a body. This conclusion is based on the following positions.

In geopolitical terms, the Russian Federation remains the strongest player capable of consolidating the forces of the international community to solve political, economic, social and other tasks, as evidenced by the fact that, despite the sanctions of Western states aimed at promoting the national interests of the United States and weakening political and economic rivals ^{[2, p. 26]}, Russia He is still a member of the most influential interstate associations and holds leading positions in them (BRICS, Eurasian Economic Union, CIS, CSTO, etc.).

After joining GRECO, the Russian Federation, despite some problems of implementing the norms of an international treaty into national legislation ^{[6, pp. 86-102]}; ^{[7, p. 4]}; ^{[8, pp. 132-136]}; ^{[14, pp. 8-10]}; ^{[16, pp. 283-319]}; ^{[18, p. 176]}, fulfilled all the recommendations of the Council of Europe acceptable to the country, it was possible in a short time to form the legal and organizational foundations for combating corruption ^{[1, p. 1693]}, which indicates the high level of measures taken in this area, as well as the focus on the eradication of official offenses as an integral part of the state policy of modern Russia.

Among the arguments that allow us to talk about the Russian Federation as a leader in the field of crime eradication, including corruption, it should be noted that currently, despite unprecedented pressure from a number of Western countries, Russia in 2023 was not included in the so-called "gray" and "black" lists of the International Group Anti–Money Laundering (FATF) (URL: FATF did not include Russia in the black and gray lists - RBC (rbc.ru ) (date of application: 12/25/2023)), which indicates that the measures taken in the field of countering money laundering and terrorist financing comply with international standards.

In addition, the Russian Federation, as mentioned above, has experience in creating and participating in international anti-corruption bodies, such as, for example, the International Council for Combating Corruption, which has been effectively operating for more than 10 years.

It should also be borne in mind that Russia adheres to the principles of international law, including the legal and de facto equality of States, sovereignty, and respect for the legal personality of Other States (Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States in accordance with the Charter of the United Nations (adopted on 10/24/1970 by Resolution 2625 (XXV) on 1883–at the plenary meeting of the UN General Assembly) // Resolutions adopted by the General Assembly at the twenty-fifth session. September 15 – December 17, 1970. The General Assembly. Official reports. Twenty-fifth session. New York: United Nations, 1971. pp. 151 – 155.). This allows us to assert that the international anti-corruption control body, created on the initiative of the Russian Federation, will be formed on the basis of equality of all participating States, the absence of a politicized approach to membership and participation in such an organization.

We believe that it is advisable to create an international anti-corruption control body under the auspices of the international association of BRICS states, as one of the most influential economic communities at present. In favor of the position on the rationality of using this international platform as a flagship of anti-corruption activities, it is necessary to indicate the following.

The use of existing mechanisms and structures of interstate cooperation will significantly simplify the interaction between the contracting parties regarding the creation and functioning of an international anti-corruption organization, as well as solve a number of procedural problems.

At the same time, the BRICS participants are interested in developing common anti-corruption standards and ensuring their implementation in each state party to the agreement in order to ensure the creation and application of transnational standards that make it possible to secure economic relations of states in this area of law enforcement.

In addition, the activities of the international anti-corruption control body within the framework of the BRICS will significantly strengthen the authority of this international organization, will allow it to implement the tasks of ensuring the principles of equality and mutual benefit, as well as creating conditions for fair competition within the framework of the multipolarity of the world economy.

In our opinion, not only the countries that are members of the BRICS agreement can participate in the activities of the international anti-corruption body, but also any other state that is interested in implementing anti-corruption standards developed by this organization on its territory and has assumed obligations to comply with them.

The tasks of the anti-corruption interstate association should include: developing common approaches for all states to the rules and procedure for the implementation of international law in the field of anti-corruption, criteria for evaluating the anti-corruption activities of each state, as well as rational proposals to increase the level of action in this area. It seems obvious that it is possible to ensure free access of specialists of this interstate body to materials that allow them to express an opinion on the level of implementation of anti-corruption measures and develop proposals for their improvement. It is possible to provide for some types of legal liability for States that have assumed obligations to implement the recommendations, but have not fulfilled them, or unreasonably evade their implementation.

The activities of such an organization should be based on principles that ensure the objectivity of its activities, decisions taken and recommendations put forward, which ultimately will help to gain trust in the international arena, involve the maximum possible number of participants and develop common approaches in countering corruption offenses in the world.

The main principles of the activities of this international organization should be:

— freedom to join the agreement. The desire to join the activities of this organization should be dictated by strengthening its authority in the field of international cooperation, objectivity and non-politicization of decisions taken, adherence to the principles of international law and cooperation, respect for the sovereign rights of the States parties to the agreement, and the development of recommendations to ensure a real improvement in the situation in the field of anti-corruption;

— equality of its participants, which implies the absence of dominance of individual states, state entities and non-state associations in the activities of this international organization, the exclusion of the priority of some legal systems over others;

— legality should be ensured by the implementation of the activities of this body on the basis of the norms of international law and international agreements, with the exception of the facts of the application of national legislation, unless this is due to interstate agreements concluded on a voluntary basis;

— openness, which implies the realization by the participating States of the possibility of an objective assessment of the situation in the field of combating corruption, including access to necessary materials, documents, statistical and other reference data, the opportunity to visit public authorities;

— transparency, expressed in the dissemination and accessibility of information about the activities of an international organization, should help to increase its authority, involve new parties to the agreement, as well as provide constructive criticism in order to identify shortcomings and improve the procedure for international control in the field of anti-corruption.

Thus, a number of conclusions can be drawn based on the conducted research.

1. Currently, the Russian Federation occupies one of the leading positions in the field of anti-corruption measures.

2. The most effective is the control of the state's activities in the field of combating corruption, carried out in three directions: internal control by authorized public authorities or specialized units of such bodies; public control of civil society institutions; international control by organizations authorized to carry it out by the norms of international treaties.

3. The Russian Federation has every reason to be the initiator of the creation of an international anti-corruption control body designed to ensure compliance with the norms of international law in this area, the interaction of the participating States, and the creation of conditions for the eradication of corruption in the world. The implementation of this proposal will, on the one hand, strengthen Russia's authority as an implacable fighter against corruption, consolidate the healthy forces of the world community in the fight against official misconduct, on the other, continue an active anti—corruption policy within the country and ensure the development of national sectoral legislation.

4. In order to implement the above proposals, the concept of "international control" should be introduced into international and national legislation, as the activity of bodies and organizations authorized by international treaties in order to ensure compliance with international law, through external monitoring, development of recommendations and proposals to ensure compliance with international law, as well as the application of international sanctions to the parties to the agreement that does not comply with or impede the implementation of international law. In this case, the determining provision is that the subject of international control is the activity of implementing the norms of international law, and not national legislation. Another prerequisite for international control should be that it is carried out exclusively in accordance with the norms and principles of international law.