The responsibility of corrupt officials and the prevention of criminal law

Komarov Anton Anatolevich ORCID: 0000-0002-1330-4236 PhD in Law Associate Professor; Department of Criminal Law and National Security; Novosibirsk State University of Economics and Management 630099, Russia, Novosibirsk region, Novosibirsk, Kamenskaya str., 52/1, office 503 reise83@mail.ru Other publications by this author

Introduction.

The relevance of the stated topic is due to the fact that crime prevention is one of the leading tasks of punishment. Its effectiveness can have a qualitative impact on the state of corruption crime. It is known that sanctions for corruption-related crimes have been edited many times. Has the legislator managed to maintain a balance between the preventive function and the proportionality of the sanction of the public danger of such acts at the present stage?

Many dissertations on criminal liability for bribery point to the shortcomings of the criminal policy in terms of penalization. So, A. E. Komissarov (PhD. 2023) draws attention to the fact that the main punishment for the most socially dangerous act – receiving a bribe on an especially large scale (Part 6 of Article 290 of the Criminal Code of the Russian Federation) is a fine ^{[1, p. 38]}. The actual data of A. A. Amosova (PhD. 2022) indicate that for a long time (during 2011-2013) recipients of bribes were not given additional penalties in the form of fines when sentencing to imprisonment ^{[2, p. 155]}. D. R. Akhunov (PhD. diss., 2022), by conducting a survey, found out that from 67 to 72% of practitioners are in favor of strengthening criminal liability ^{[3, p. 233]}.

At the same time, in a number of fundamental works on the issues of general and special prevention of criminal law ^{[4, 5, 6]}, methods that were not used in the above studies are indicated. Let's give an example. A comparative analysis of punishments imposed on corrupt officials and ordinary criminals sheds light on the discrepancy between private issues of penalization and the general vector of criminal policy. The issue of evaluating the effectiveness of individual sanctions requires an understanding of the mechanism of expanded reproduction of corruption crimes. The dynamic comparison of sanctions imposed by the court reflects not only changes in criminal policy, but also corresponds to a qualitative change in the structure of corruption crime. This entails the need to use special criminological knowledge in the process of criminalization and penalization. However, this task has not been fully solved yet. We believe that our work is able to eliminate these shortcomings.

Methodologically, our work is based on the use of statistical analysis to substantiate specific penalization options or to criticize existing legislative decisions. The summary and grouping of statistical observation materials is based on the use of official statistical reports on the state of crime of the Ministry of Internal Affairs of the Russian Federation (in terms of indicators of registration, disclosure of corruption acts and the number of persons identified for their commission), posted on the official website (https://мвд.рф /). The data on the criminal record of corrupt officials was borrowed from the summary reports of the Judicial Department at the Supreme Court of the Russian Federation in form No. 10.4.1 "Judicial statistics on corruption cases" for the period from 2012 to 2023, published on the official website (http://cdep.ru /).

To summarize the grouped statistical data, the representation of dynamic series of absolute and relative statistical quantities in appropriate graphical forms was used.

To draw the final conclusions, a number of general scientific methods were used: induction, analysis, synthesis.

The results of the study.

A simple comparative analysis of the corruption crime structure indicates that bribery remains the leading phenomenon. Its share of the number of registered crimes in 2023 is 59%. And 75% of the crimes committed during the reporting period. Statistics show that, first of all, bribery is detected, which is often associated with the commission of other crimes that are detected after the initiation of a criminal case. It turns out that in many cases other corruption crimes are associated with bribery, the effect of expanded reproduction of crime, being a consequence of accepting a bribe or a necessary condition for its transfer.

Table 1. Bribery and other corruption crimes.

Receiving a bribe is twice as likely to be covered by additional qualifications in a criminal case than the main one. This is indicated by an analysis of the statistical reports of the Judicial Department at the Supreme Court of the Russian Federation for 2023. It is possible that the recipient of the bribe manages to commit some more socially dangerous actions in favor of the bribe giver before the moment of suppression of his criminal activity. At the same time, giving a bribe, as a rule, does not entail the reproduction of any other crimes. Such actions exhaust the very event of the crime at the time of its suppression. But in a quarter of cases, even the actions of bribe-givers are covered by additional qualifications. That is, the bribe giver manages to take advantage of the effect of giving a bribe. This circumstance indicates that the effectiveness of the general prevention of criminal law has been significantly reduced.

Figure 1. "Three-year cycles" below shows that the number of persons convicted of court sentences in some years exceeds the number of persons identified for corruption crimes. This may be explained by the need for a temporary shift of one statistical category in relation to another. After all, identified persons are not convicted simultaneously. In most cases, not even during the current reporting period. But even such a shift of the curve relative to the chart columns will not lead to the desired effect. This is evidenced by the excess of the number of sentences imposed on the defendants relative to the identified persons (accused) in 2016 and 2022.

It turns out that the criminal proceedings on corruption crimes have been going on for too long. Then sentences for crimes of the past years begin to be passed en masse. From this we can conclude that there is a certain cyclicity, which is formed by three-year periods of "mass recruitment of defendants." Despite the fact that the mass of people identified for committing corruption crimes is statistically distributed more evenly. On the one hand, this indicates that the bodies of preliminary investigation and inquiry are more systematically approaching the organization of work to counter corruption-related crimes. On the other hand, the judicial system may experience stronger external pressure in terms of making decisions on bringing corrupt officials to justice.

Fig.1. Three-year cycles.

The presented Figure No. 1 clearly shows two independent trends in the organization of countering corruption-related crimes. Until 2016, the share of bribery in the total structure of convicts was significantly higher than in the subsequent period. As noted by a number of researchers, the proportion of fraud committed using official authority has increased in recent years ^{[7, p. 533]}, as well as embezzlement and embezzlement ^{[8, p. 122]}.

The proportion of detection rates (97.2% in 2023) and the number of acquittals (0.6% in 2023) in recent years indicates that those convicted of corruption crimes are still responsible for their actions. But the measure of responsibility may differ significantly for them and ordinary criminals.

From the presented table 2. "Types of punishments" it is obvious that among the main types of punishments imposed on corrupt officials, a fine dominates. This makes them quite different from ordinary criminals, who are fined less often. In principle, this is not surprising, since the fine is at the top of the list of sanctions for corruption crimes. Following the rules of sentencing, the court often settles on the most humane measure of punishment.

Table 2. Types of punishments.

In many modern studies on the issue of penalization of corruption crimes, it is proposed to put forward real imprisonment in the first place ^{[3, p. 103]}. In fact, it is proposed to restore the status quo that existed in the original version of the Criminal Code of the Russian Federation. However, the severity of the sanction does not guarantee a preventive effect. According to S.Y. Bytko ^{[6, p. 31]}, it should be taken into account that additional types of punishments have the greatest preventive potential. This refers to the deprivation of a special right and, as another criminal legal measure, the confiscation of property.

Fig. 2. Dynamics of the application of confiscation to convicts.

An analysis of the situation with confiscation of property suggests that this measure is not always applied in strict accordance with criminal law. Article 104.1 ^of the Criminal Code of the Russian Federation provides for the confiscation of funds or property for bribe takers only in relation to two articles: 290, parts 5-8 of art. 204 of the Criminal Code. However, an analysis of judicial statistics shows that this measure is also applied to those guilty of committing a crime under art. 291 or art. 291 ¹ of the Criminal Code of the Russian Federation, which is not fully justified. In addition, the information presented in Figure 2 raises doubts due to the vicissitudes of the way judicial criminal statistics are generated. According to the Judicial Department of the Supreme Court of the Russian Federation, in 2023, the proportion of decisions on confiscation of property and money of recipients of commercial bribery amounted to 13.2%, among recipients of bribes – 14.8%. It turns out that in most cases, the fate of the subject of a bribe is decided in criminal procedure, as material evidence, according to the rules of art. 81 of the Criminal Procedure Code of the Russian Federation. Therefore, the actually confiscated property does not receive adequate reflection in statistics.

As for the issue of confiscation of property from bribe-givers, an analysis of specific sentences indicates the presence of positive examples (Verdict No. 1-84/2023 of November 29, 2023, Lahdenpokh District Court, Republic of Karelia) and negative decisions (Verdict No. 1-256/2023 of November 29, 2023, Kislovodsk City Court, Stavropol Territory) in this regard.. All this indicates the lack of uniformity of law enforcement practice in relation to corrupt officials. In this regard, it would be necessary to review once again the provisions of the current Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/14/2018 No. 17 (as amended on 12/12/2023) "On certain issues related to the use of confiscation of property in criminal proceedings" in order to clarify more clearly the practice of applying criminal and criminal procedure law regarding the use of confiscation.

In contrast to the previously existing punishment with the same name, the modern measure is more likely to be procedural in nature. There is a danger that the amount of funds acquired as a result of systematic corrupt activities will allow the criminal to pay off at one time. And the returned funds will serve as part of the payment of the fine imposed by the court to the bribe giver.

Regarding the deprivation of the right to hold a certain position or engage in a certain activity, V. Y. Stromov writes that at one time it was the most severe and undesirable punishment for trade workers ^{[9, p. 310]}. His survey of employees of municipal and state structures showed that 98% and 92% of them are not going to change jobs. Although the salary level seems insufficient to them (71% of respondents).

V. P. Malkov wrote that the practice of assigning "deprivation of rights" instead of conditional conviction of corrupt officials should be more widely applied ^{[10, p. 162]}. He also proposed to establish lifelong disqualification of officials in order to prevent serious corruption crimes. It should be noted here that the effectiveness of private prevention will vary significantly depending on the specific position (field of activity) of the corrupt official. Law enforcement officers with criminal records will not be able to re-enlist. An additional sanction is hardly needed here. But a municipal or state civil servant can be transferred to another position (not related to organizational, administrative or administrative functions) in the same organization, which requires a more thoughtful attitude of the judge, understanding the specifics of criminogenic determinants. Given that judges are not thoroughly trained in this area in all cases, it may be more effective practice to establish a mandatory "prohibitive pattern" when imposing additional punishment.

The current situation in judicial statistics indicates that "deprivation of the right" is in demand in relation to the structures providing for a special subject of the crime. The data is shown in Figure 3. "Dynamics of deprivation of a special right. But even in the case of receiving a bribe, no more than a third of all criminals are subjected to this additional punishment, as in the case of receiving commercial bribery. The situation of giving a bribe or mediation can be formed without the participation of a special entity, therefore, the use of deprivation of the right occurs only in every tenth case. At the same time, on the upper curve characterizing the criminal record of bribe recipients, until 2016, the appointment of this punishment as an additional one happened twice as often. In 2014 – 44.8%; in 2013 – 47.6%. The frequency of the use of this punishment indicates that its preventive potential has not yet been sufficiently realized.

Fig. 3. Dynamics of deprivation of a special right.

It is clear that the measure of criminal responsibility is related not only to the degree and nature of the public danger of such crimes, but also to the identity of the perpetrator. The criminological characteristics of persons who are most often deprived of a special right (for example, those convicted of accepting bribes or commercial bribery), as of 2023, are as follows. In most cases, men (82.6%) are over twenty–five years old, but younger than sixty (97%); Russian citizens are permanent residents of the area (100%); previously not convicted (99%). By occupation: 36.5% are state and municipal employees; 34.3% are law enforcement officers; 21% are employees of commercial and other organizations; 5.6% are military personnel. Based on the above socio-demographic characteristics, a typical portrait of a well-socialized person emerges, which undoubtedly affects the nature of the punishment imposed by the court.

According to the data of the Judicial Department at the Supreme Court of the Russian Federation for 2023, one fifth of all cases related to corruption crimes end in their termination. Most often, these are cases involving bribery (36% of all cases) or commercial bribery (50%). In this case, the most typical case of termination of a criminal case is release from liability based on a note to Articles 291-291 ² of the Criminal Code of the Russian Federation. But recently, another "popular" reason for terminating a criminal case has been the imposition of a court fine. Its application is possible to corrupt officials who have committed minor and moderate crimes. The problem of implementing such a measure of a criminal law nature is that the perpetrator must make amends for the harm caused by the crime (^art. 76-2 of the Criminal Code of the Russian Federation, art. 251 ^of the Criminal Procedure Code of the Russian Federation). But, as a rule, there are no victims (real victims) in such cases. In practice, there are cases when defendants make charitable contributions to various foundations to make amends for harm, and then pay a fine to the state ^[11]. Such a "trick" is quite often used in law practice to mitigate criminal repression against corrupt officials ^[12]. As a result, they get the opportunity to avoid responsibility for recidivism next time, since a person who has been fined is not considered to have a criminal record.

Conclusion.

An analysis of the statistical array of corruption-related crimes indicates that bribery still remains the core in the structure of corruption crime. Due to the effect of expanded reproduction of crime, it brings to life other corruption crimes. At the same time, it is quite obvious that the structure of corruption crime is also changing over time.

Corruption-related proceedings have been going on for too long. The law enforcement system reacts to this in different ways. At the pre-trial stages, the organization of countering corruption-related crimes statistically looks more systematic. At the same time, the judicial system is experiencing difficulties in considering criminal cases, resulting in a statistical effect of "accumulation of the mass of defendants."

Among the types of punishment imposed on corrupt officials, a fine dominates. This significantly distinguishes the practice of punishing corrupt officials from the practice of punishing ordinary criminals. There is ample convincing evidence that criminal liability of corrupt officials needs to be tightened. The main form of punishment for qualified types of bribery should be imprisonment.

Among other types of punishment and criminal law measures, deprivation of the right to hold certain positions or engage in certain activities, as well as confiscation of property, have the greatest preventive effect.

However, the current form of property confiscation in legislation does not provide for the seizure of illegally acquired criminal income of a corrupt official and its conversion in favor of the state, which reduces the preventive potential of this measure. Therefore, it is reasonable to reinstate confiscation as a punishment.

The deprivation of a special right is a well–known preventive mechanism. The frequency of its use indicates that the judicial community is not fully aware of its preventive potential. The difficulty here is that the appointment of this type of punishment must take into account the personality of the defendant, the conditions of his further work, since the punishment of corrupt officials is often not associated with imprisonment. And this requires serious criminological training for judges.