On some issues of evaluation of information reflected in income certificates by state (municipal) employees in Russia

Firsova Ol'ga Anatol'evna PhD in Law Professor; Department of Prosecutorial Supervision and Participation of the Prosecutor in the consideration of civil and Arbitration cases; Irkutsk Law Institute (branch) University of the Prosecutor's Office of the Russian Federation 664035, Russia, Irkutsk region, Irkutsk, Shevtsova str., 1 olfi75@mail.ru

In accordance with paragraph 2 of Article 1 of Federal Law No. 273-FZ dated December 25, 2008 "On Combating Corruption" (hereinafter FZ No. 273-FZ), anti–corruption is the activity of federal government bodies, state authorities of the subjects of the Russian Federation, local governments, civil society institutions, organizations and individuals within their powers to prevent corruption, combat it and minimize (eliminate) the consequences of corruption offenses.

It should be noted that almost 16 years have passed since the introduction of changes to the anti-corruption legislation involving the submission of information on income and expenses of employees, but quite a large number of problems have not been resolved to this day. Moreover, the increased responsibility for corruption violations has led to the need to identify legal gaps and attempts to resolve them. For example, in connection with the introduction of prohibitions on owning property on the territory of foreign states and accounts in foreign banks, there was a need to establish interaction with foreign states, which led to the conclusion of legal assistance agreements and sending appropriate requests to law enforcement agencies and structures. The emergence in 2009 of digital payment systems and blockchain-based solutions, including cryptocurrency payments, interested corrupt officials from the point of view of the possibility of making payments taking into account encryption and circumvention of banking and tax controls, which led to the need to adopt amendments to the Civil Code of the Russian Federation that cryptocurrencies have a proprietary nature and are property. The discovery of a significant number of luxury items in the form of expensive accessories (watches, jewelry, leather goods), antiques and objects of modern art led to the need to settle the order and content of issues during various examinations, both as a result of procedural actions during the investigation of criminal cases and in civil proceedings. The improvement of methods of committing corruption violations and the accumulation of funds in various forms by corrupt officials is now significantly ahead of legal regulation, which often leads to the fact that not legislators, but law enforcement officers and the judicial system, are primarily trying to figure out the situation. Naturally, their decisions are always contested up to the Supreme Court of the Russian Federation, and since 2008, more than 120 Decisions and Rulings of the Constitutional Court of the Russian Federation have been devoted to these problems.

The issue of determining the content of the basic principles of civil legislation, including good faith, reasonableness and trust, has been the subject of study by such scientists as T. Yu. Drozdova, A.V. Egorova, T.V. Novikova, I.B. Novitsky. The theoretical basis of the interdisciplinary approach to the study of anti-corruption problems in Russia is the works of S. V. Bondarenko, B. V. Volzhenkin, Yu. V. Golik, A.D. Ilyakov, M. A. Sokolov and others. However, the results obtained by us can be regarded as one of the first attempts at a comprehensive study of the possibility of applying the basic principles of civil legislation to resolve controversial situations of proving guilt in committing corruption offenses. The empirical base of the study is published data on the number and content of statements of claim by prosecutors on the conversion of property to the income of the Russian Federation, in respect of which evidence of its acquisition for legitimate income has not been provided in accordance with anti-corruption legislation, more than 70 court decisions on them, including decisions of the appellate and cassation instances, the Supreme Court of the Russian Federation Federation, Resolutions and Rulings of the Constitutional Court of the Russian Federation.

The main method of research is the universal (dialectical) method of cognition of social phenomena and processes, which allows them to be considered in constant development and interrelation. General scientific methods such as system and structural and functional analysis are used. The specificity of the subject of the study determined the choice and use of special legal methods of cognition, such as formal legal and comparative legal methods.

The main legislative act that regulates legal relations when submitting information on income, expenses, property and property obligations (hereinafter referred to as income information) of one's own, spouse and minor children is Federal Law No. 273–FZ "On Combating Corruption", in it, the norms of Articles 8, 8.1 and 8.2 this obligation has been established and the circle of persons to whom it applies has been defined (for convenience, we will further refer to these categories in a generalized form as an employee). The terms and conditions and the unified procedure for granting are established by Federal Law No. 230-FZ dated 3.12.2012 "On Control over the Compliance of Expenses of Persons Holding Public Positions and Other Persons with their Incomes", other regulatory legal acts of the Russian Federation and regulatory acts of the Central Bank of the Russian Federation.

Provisions of similar content are available in other laws regulating legal relations during the passage of civil, military and other types of public service, municipal service, and the replacement of state and municipal positions, for example, in Articles 20 and 20.1 of Federal Law No. 79-FZ dated 07/27/2004 "On the State Civil Service of the Russian Federation", Article 15 of Federal Law No. 02.03.2007 25-FZ "On Municipal Service in the Russian Federation", Articles 12 and 18 of Federal Law No. 184-FZ dated 06.10.1999 "On General Principles of Organization of Legislative (Representative) and Executive Bodies of State Power of the Subjects of the Russian Federation".

In the development of these laws, a number of Decrees of the President of the Russian Federation have been issued, for example, No. 613 dated 08.07.2013 "Anti-corruption issues", as well as resolutions of the Government of the Russian Federation, which approved the list of positions of the federal civil service (or on delegation of authority to determine positions), when "appointing and replacing which persons are required to provide information on the terms, form and procedure for their submission have been established, the powers of personnel departments (or officials) of bodies to collect and verify the specified information have been determined; the placement (or exceptions to the general rule) of relevant information on the official websites of state bodies is provided.

However, it should be noted that there is a high degree of variation in the interpretation of norms and violations of citizens' rights, which, in this regard, led to a not entirely positive trend – the insufficiency of legal regulation is overlapped by the legal position of the Constitutional Court of the Russian Federation. Thus, the introduction of control over the expenses of officials, the presentation by prosecutors of relevant anti-corruption lawsuits caused appeals to the Constitutional Court of the Russian Federation, which formulated important legal positions for law enforcement officers in resolutions and definitions. ^[1].

In addition, it is necessary to pay attention to the need to use information from tab resources on the websites of government agencies with information about the main legal and departmental acts. For example, the Ministry of Labor and Social Protection of the Russian Federation is one of the bodies responsible for advisory assistance and the development of methodological recommendations and other explanatory guidance documents. Accordingly, on the official website of the Ministry of Labor of the Russian Federation in the "activities" section under the heading "Anti-corruption policy" there is a special updated selection of methodological materials on anti-corruption issues and the specifics of the application of federal laws. The websites of law enforcement agencies must contain basic materials and departmental regulations on the types of public service and anti-corruption, plans for the prevention of offenses in this area and ongoing activities.

In turn, the analysis of the information provided is entrusted to the departments and officials responsible for the prevention of corruption and other offenses, most often these are departments or human resources departments, assistants to the head of personnel work. In law enforcement agencies, such as, for example, the police and the customs service, the work on combating corruption and conducting inspections in this area in relation to persons with access to information constituting a legally protected state secret may be assigned to a unit or an official responsible for issues of so-called "internal (own) security".

Recall that a candidate applying for a position, i.e., upon admission, for example, to the state civil (municipal) service, is obliged to provide information on income, on property belonging to him by right of ownership, and property obligations, as well as information on the income of a spouse and minor children, on property owned by them on the right of ownership, and about their obligations of a property nature (hereinafter referred to as income information), for which he fills out an approved certificate form. The main purpose is to notify the representative of the employer about the available, i.e. accumulated and acquired by this time, finances, wealth, and so on. The practice of law enforcement agencies, based on the results of inspections and the initiation of criminal cases in connection with the commission of corruption crimes, indicates that the vague wording "on income received" without appropriate clarifications leads to the fact that later, when resolving, for example, disputes on the assessment of the legality of the acquisition of expensive property and "luxury goods", the employee explains about the existing by the time they enter the service, they have accumulated funds "in cash". Thus, in one of the trials in cases involving prosecutors' statements on the conversion of property to the income of the Russian Federation, in respect of which evidence of its acquisition for legitimate income was not provided in accordance with anti-corruption legislation, the defendant indicated that the source of funds for the purchase of luxury goods (real estate, vehicles, precious metal products and stones, cash in cash and non-cash form, the value of which was many times higher than the total income) is a fairly large amount of savings from commercial activities received during the period before public service. However, none of the legal acts states that a person must report that, in addition to bank accounts, property also has cash, and a regulatory obligation to "legalize" them against the will of a citizen by specifying in legal acts "to open a deposit or account in any of the banks for control opportunities in order to prevent violations of anti-corruption legislation,"in fact, it will violate the constitutional rights and freedoms of man and citizen.

In an attempt to resolve such situations before legislative changes, attention should be paid, firstly, to the fact that the Constitutional Court of the Russian Federation, in its decision No. 26-P dated 11/29/2016, at the request of the Supreme Court of the Republic of Bashkortostan, noted that "citizens voluntarily choosing this kind of activity agree with restrictions, and, consequently, with special rules for passing the civil service and requirements for those who elected it." Based on these provisions, it can be concluded that a candidate for a position must understand and be aware of the need for honest and law–abiding behavior when submitting documents. Focusing on the analogy of the content of Article 10 of the Civil Code of the Russian Federation, let us assume that the possibility of hiding some information about income due to the lack of direct instructions from the law in such situations should be regarded in some sense as a form of abuse of law, since it is the abuse of law that is the exercise of civil rights solely with the intention of harming another person, actions bypassing the law with an illegal purpose, as well as other deliberately unfair exercise of civil rights. Secondly, in Resolution No. 1-P dated 09.01.2019 "On the case of checking the constitutionality of Part 1 of Article 16 and Part 1 of Article 17 of the Federal Law "On Monitoring the Compliance of Expenses of Persons holding Public Positions and Other Persons with their incomes" in connection with the complaint of a citizen G. P. Kristova" The Constitutional Court of the Russian Federation concluded that only the property that a citizen acquired when he filled a position involving cost control can be converted into state income.

The way to resolve such a situation is to add to the legislative acts on combating corruption that "as other income to be reflected, it is necessary to indicate other accumulated and monetary amounts available as cash in Russian currency as of the first day of the month preceding the month of filing documents (on the reporting date)". Some problem may arise if these funds are accumulated in a foreign currency, and then an additional requirement "and/or in foreign currency in terms of the monetary unit of the Russian Federation at the official exchange rate of the Central Bank of the Russian Federation on a given date" would be logical.

The system of control over income and expenses of employees in the Russian Federation also assumes the annual submission of accounting certificates with data as of December 31 (end) of the reporting year. The main purpose of such inspections is to assess information from the point of view, firstly, to identify the facts of non-provision, presentation of false or incomplete information, and, secondly, the proportionality of the financial and property status of employees and their income, and, thirdly, if there is information about expenses, to identify additional sources of funds, for at the expense of which disputed property, securities, shares (shares of participation, shares in the authorized (pooled) capitals of organizations) were purchased, the presence of which may indicate the commission of corruption violations. During the verification, the certificates with the data contained in them are examined. At the same time, it is necessary to compare information from open sources and provided by the employee himself with available materials from previous years. The most typical violations that are detected immediately, "at first glance", i.e. during the initial reading or reconciliation with documents of previous reporting periods, are the so-called technical errors in numerical indicators and names, addresses and objects, concealment of accounts with a "zero balance" and the like, related to the inattention of the reporting person or in general arising for reasons beyond the control of the employee. In practice, it is customary to evaluate such actions in accordance with the Letter of the Ministry of Labor and Social Protection of the Russian Federation dated March 21, 2016 No. 18-2/10/P-1526 "On Criteria for bringing to justice for corruption offenses" as actions that do not constitute a corruption offense.

Then, the guilty person is most often given the opportunity provided for by law to make adjustments and, accordingly, are limited to instructions-warnings about preventing similar mistakes in the future. The prosecutor's office, identifying such situations, in the acts of the prosecutor's response, pay attention to the need to comply with the requirements of the law in terms of filling out certificates and the inadmissibility of inaction by employees of personnel departments.

As we understand it, the main danger is the facts of deliberate concealment or distortion of information. An analysis of disciplinary and judicial practice shows that such violations, regarded as serious (significant) offenses, are, for example, the concealment of income and/or property, the sources of which the employee could not explain or the value of which did not correspond to his income.

However, officials conducting inspections in this area must also remember the existence of not so obvious violations that "do not lie on the surface", which, among other things, are ways to evade responsibility and conceal the facts of the presence of "illegally acquired property".

One of the most obvious ways is to indicate an unreliable transaction price. Note that this method is divided into several subspecies, depending on the ultimate goal of the violator.

Thus, in the case of the sale of property, including fictitious, there were cases of undervaluation – more often in order to avoid taxation, conceal the real price of property, and retain the right to use "alienated" property. We should immediately note that such an agreement can often be accompanied by an additional undisclosed agreement between the parties on the so-called breakdown of the price into "official for documents" and "additional" with an additional payment in cash, which is practically difficult to identify. Subsequently, when clarifying the circumstances of the transaction, for example, by the personnel service or law enforcement agencies, this fact is carefully hidden and, usually, is established only in cases of initiation of a criminal case on corruption grounds as a result of operational investigative measures.

There are situations with an overestimation of the price of property during its sale, for example, in order to financially justify the cost of subsequently acquiring expensive objects (land, real estate, vehicles, securities) or legalizing existing (accumulated, received for any illegal actions related to exceeding or using official authority) funds. In the case of the acquisition of expensive property, employees, most often, underestimated its value and indicated it in the purchase and sale agreements, in order to create the appearance of legality of the purchase, as if made within the available amounts of income, or to create the opportunity to reflect in the certificates several purchased objects that do not exceed the amount reflected in the certificates income. In any case, it should be concluded that if these goals are achieved, then such transactions can be regarded as committed in circumvention of the law and with abuse of law.

Such facts cause serious concern in connection with the need to substantiate the illegality of the employee's actions and the problematic nature of subsequent proof of his misconduct, entailing a measure of punishment. The difficulty lies in the absence of a special comprehensive methodology. Based on the conducted survey of law enforcement officers and prosecutors, as well as an analysis of court decisions freely available in legal reference systems and on court websites, the algorithm of actions is as follows.

The main argument of an employee when specifying an unreliably low or inflated price is "the ability to be guided by such principles of civil turnover as, first of all, freedom of contract, inviolability of property, and the inadmissibility of arbitrary interference by anyone in private affairs." Indeed, as stated in Part 2 of Article 1 of the Civil Code of the Russian Federation: "... They are free to establish their rights and obligations on the basis of a contract and to determine any terms of the contract that do not contradict the law," i.e. in the case we are considering and with respect to one of the essential terms of the contract – the independence of discretion to set the price of the purchased or sold things. Refuting such arguments, attention should be paid, firstly, to the already mentioned requirement of legislation on the need to comply with the principles of law-abiding and honesty when submitting accounting documents (certificates of income and expenses). Secondly, during the audit, it is necessary to establish, using any means appropriate to the anti-corruption law, the purpose of such understatement or overstatement. At the same time, it is necessary to take into account the explanation of the Supreme Court of the Russian Federation, set out in the Resolution of the Plenum of the Supreme Court "On the application by Courts of certain provisions of Section 1 of Part One of the Civil Code of the Russian Federation" dated June 23, 2015 No. 25: "Assessing the actions of the parties to the contract as bona fide or unfair, one should proceed from the behavior expected from any participant in civil turnover taking into account the rights and legitimate interests of the other party....and the behavior of one of the parties may be recognized as unfair, ... if there is an obvious deviation of the actions of a participant in civil turnover from good faith behavior."

The only question is that this dishonesty in a situation of committing a corruption violation may in no way affect the second side of the transaction, but it may be dangerous from the point of view of the state, as threatening the foundations of statehood in the field of combating corruption.

Especially in the situation of assessing the value (price) of a transaction, attention should be paid to the basic principles of civil legislation. In this case, they will play a priority role in determining the legality or illegality of the employee's actions. Part 2 of Article 1 of the Civil Code of the Russian Federation contains norms that the requirements on the limits of the exercise of civil rights apply to any civil law relations. Part 5 of Article 10 of the Civil Code of the Russian Federation states that in the course of transactions, trust, good faith and reasonableness of actions of participants in civil relations are assumed. Paragraph 3 of Article 307 of the Civil Code of the Russian Federation stipulated that the parties to the obligation, when establishing, fulfilling and after termination, must act in good faith, take into account mutual rights and legitimate interests, assist each other, and provide the necessary information. A number of difficulties arise due to the fact that the content of these principles is not disclosed in the current legislation, there are no clearly defined criteria for categories, but their existence makes it possible to assess the behavior of business participants ^[2].

The question arises - what should be understood by conscientiousness and reasonableness when concluding a transaction by an employee?

As mentioned earlier, the principle of presumption of good faith is enshrined in civil legislation, in addition, according to paragraph 1 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/23/2015 No. 25 "On the application by Courts of certain Provisions of Section I of Part One of the Civil Code of the Russian Federation", behavior expected from any participant in civil turnover, taking into account the rights and legitimate interests of another, is recognized as conscientious the party assisting her, including in obtaining the necessary information.

Therefore, it is assumed that the employee, at the conclusion of the contract of sale, will inform about all the advantages and disadvantages of using this particular object (real estate, vehicle and other property), all its consumer properties and characteristics and will not hide significant flaws, as well as explain the reasons for overestimation or understatement of the price, and his behavior it will not be unfair and will not lead to any negative consequences.

Moreover, for example, T.V. Novikova says that conscientiousness and dishonesty consist exclusively of an intellectual element (conditional "knew" and "did not know") and are not connected by a volitional element (i.e., with the desire for "ignorance"), while conscientiousness concerns only awareness of facts and is implemented only in specially provided the law of cases. ^{[3, 98]}. It should be agreed that conscientiousness in judicial practice turns from an abstract ethical category into a criterion for the legality of the behavior of subjects of civil law, which imposes additional responsibility on all participants in the turnover, as well as on the court, which evaluates and determines the parameters of conscientious behavior, based not on a literal interpretation of the current norms, but in accordance with prevailing in society moral and ethical rules of behavior, moral principles, ideas about good and evil. ^{[4, 10]}.

It is necessary to name another principle of civil law, possibly applicable to the situations under consideration, the principle of reasonableness. The reasonableness of the behavior of the participants in the turnover is generally considered by the Russian legislator as a sign constituting the supposed normal state of civil relations, i.e. the need to measure their behavior with common sense, general ideas about foresight and economic expediency.

However, in a number of situations, law enforcement agencies must, in addition to the norms of Articles 1 and 10 of the Civil Code of the Russian Federation, be guided by the requirements of Article 170 of the Civil Code of the Russian Federation on the invalidity of imaginary and pretended transactions.

So, we concluded that the main accentuating signs of reasonableness are fairness, proportionality and the inadmissibility of profiting from illegal or unscrupulous behavior. In the context of the problem under study, we are concerned about the reasonableness of setting a price for the thing being sold (real estate, car, etc.). Undoubtedly, in the average case, designed for the so-called "average" person, the price is "reasonably" set based on, first of all, the economic benefit of the seller and the buyer's interest in buying a high-quality thing at a price below the market.

In addition, the opinion of some scientists deserves attention that the practical aspects of reasonableness should be understood as the characteristics of the activity of an obligated person used by the legislator in paragraph 1 of Article 713 of the CPC of the Russian Federation, such as economy and prudence. ^[5].

We also have to admit that any person, "being in his right mind and firm memory," will not act contrary to his own economic (financial) interests, since, for example, there are no reasonable grounds for a significant reduction in the price of property, unless he also has significant flaws that force him to sacrifice this financial interest to make a profit. It can also be said unequivocally that an obvious overestimation of value does not meet the interests of the market and significantly affects the competitiveness of the goods-property on the market and will not meet the goals of a shortened sale period.

It is necessary to conclude that this is not only a certain standard of averaged desired behavior, but also moral rules, foundations that generate trust on the other side. In turn, trust, according to Ozhegov's dictionary, is confidence in the integrity, sincerity of any subject, in the correctness of something ^[6]. Undoubtedly, these examples of underestimation or overestimation of prices will clearly only shake this trust.

Let's make a reservation that during the audit by the relevant departments of personnel services for the prevention of corruption and other offenses, when receiving information about the registration of a civil servant's property for other persons or the acquisition of property by him at a price different from the average market, it is necessary to take measures to obtain documentation about this transaction and property, including through the use of a Unified Interdepartmental System electronic Interaction (SMEV), and access to databases is provided upon request to the Federal Situation Center of Electronic Government in accordance with the Rules and Procedures of work in SMEV, published in open access on the SMEV technology portal.

Since 2018, the prosecutor's office, when conducting inspections, also has access to the specified database (IS MEW of the State Duma of the Russian Federation), information resources "SPARK", "MARKER" and others. Prosecutors systematically send complex requests electronically through information systems: The Ministry of Internal Affairs of Russia, the Federal Tax Service of Russia, Rosreestr, the FIU of Russia, the Ministry of Communications of the Russian Federation, the Federal Treasury, the Federal Forestry Agency and receive data from federal information resources of other public authorities: the Portal of public Services, the Federal State Information System "Unified Register of Inspections (FGIS EPP)", the Federal State Information System of Housing and Communal Services (GIS Housing and Communal Services). ^{[7, p.188]} As in any other case, the employee himself has the right to present various admissible evidence of the legality of the origin of this property. In addition, we are convinced that the principle of "a priori culpability" should apply to all corruption violations, and the employee himself should bear the burden of proof. ^[8]

For example, in a situation where information about a significant underestimation of the price in the sale of property is found in the certificate, it is necessary to pay special attention to the volume of consumer properties of the product: whether they are partially or fully lost, compare the acquisition (sale) value with the average market value, and also form an opinion on the probable purpose for which the price was underestimated, in turn, the person being checked will be obliged to refute all available arguments with appropriate direct evidence.

So, when identifying a concluded purchase and sale transaction for an expensive car at a price of 249 thousand rubles instead of the average market price of about 5 million rubles, prosecutors studied: the purchase and sale agreement, the technical characteristics of a similar or this car, archival advertisements for the sale of this car (or with similar characteristics) from electronic sales sites (Avito and Drom) with indicating the history of the establishment and reduction of the sale price, also according to the car (without requesting it for research or examination) information from the traffic police and the insurance company on the absence of insurance cases (to exclude the situation of loss of consumer properties as a result of an accident, damage) and insurance payments, data from the dealership on the warranty service of the car and calculated indicators for cases of "Delivery of a vehicle under the "Trade-in" program, as well as information about the car buyer.

As a result, it was established that an undervalued price was established for the early conclusion of a purchase and sale agreement in order to withdraw the car from the estate under the threat of criminal proceedings, seizure of property and appeal by the prosecutor's office with a statement of claim to the court about the conversion of the car and other objects to the income of the Russian Federation. At the same time, the funds in the amount of the price difference were transferred in cash by receipt.

So, what conclusions have we come to as a result of this study.

Firstly, despite the long, more than 12 years of validity, Federal Law No. 230-FZ dated 03.12.2012 "On control over the compliance of expenses of persons holding public positions and other persons with their incomes", this is a document that, with the expiration of time and the development of new, more advanced ways of avoiding control over the sides of the state are dishonest officials (employees), constantly in need of improvement.

For example, we believe that it is necessary to introduce a notification procedure, by entering into the income statement, about the available savings by the time the candidate submits documents for admission to the service.

And, secondly, since the legislation does not directly prohibit the possibility of applying the basic principles of the Civil Code of the Russian Federation on good faith, reasonableness and legality, in this regard, we consider it possible for the competent authorities to apply them as special criteria for evaluating certain actions of participants in transactions on alienation and acquisition by employees (as well as spouse/by a spouse or other related persons) of goods, objects committed for the purpose of concealing corruption violations, in order to identify violations of anti-corruption legislation.

Indeed, the stability of civil turnover as a whole is ensured by the law-abiding, conscientious and reasonable behavior of its participants. However, if it is necessary to assess the legality of completed transactions for the acquisition or alienation of property at a price significantly lower or higher than the average market price, the behavior of an employee as one of the parties should be assessed a priori precisely comprehensively from the point of view of the presence of unlawful intent aimed at obtaining a vicious result, although taking into account the interests of the opposite party.