Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Di rec to ra
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Vol. 39, Nº 71 (2021), 703-714
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/09/2021 Aceptado el 16/11/2021
Criminal policy in countering corruption
crimes related to bribery and other illegal
remuneration (legislative aspect)
DOI: https://doi.org/10.46398/cuestpol.3971.42
Pavel Nikonov *
Abstract
Criminal policy is part of state policy, dening the main
objectives and means to inuence crime through legislative
activities related to change, rst, criminal, criminal-procedural,
criminal-executive legislation. Through a scientic methodology
of a documentary nature, the objective of the research is to analyze
the criminal and legal policy of the State in the ght against
crimes related to bribery and other illegal remuneration. It should
be noted that the criminal policy of crimes related to bribery and
other illegal remuneration is currently in crisis. It is concluded
that there is a tendency to increase the range of criminal acts related to
illegal remuneration, to broaden the scope of the criminal regulation of
liability for illegal remuneration by making changes and additions to the
composition of oences related to illegal remuneration, and to criminalize
new types of acts related to unlawful remuneration, which is associated
with the assessment of the role of illegal remuneration as a particularly
dangerous criminal phenomenon, which has a signicant negative impact
on protected public relations.
Keywords: criminal-legal policies; corruption; anti-corruption; bribery;
tampering.
* Irkutsk Law Institute (branch) of the University of Prosecution of the Russian Federation, Irkutsk, Russia.
ORCID ID: https://orcid.org/0000-0003-2721-0481
704
Pavel Nikonov
Criminal policy in countering corruption crimes related to bribery and other illegal remuneration
(legislative aspect)
Política criminal en la lucha contra los delitos
de corrupción relacionados con el soborno y otras
remuneraciones ilegales (aspecto legislativo)
Resumen
La política criminal es parte de la política del estado, deniendo los
principales objetivos y medios para inuir en el crimen a través de actividades
legislativas relacionadas con el cambio, en primer lugar, la legislación penal,
penal-procesal, penal-ejecutiva. Mediante una metodología cientíca de
carácter documental el objetivo de la investigación consiste en analizar la
política penal y legal del Estado en la lucha contra los delitos relacionados
con el soborno y otras remuneraciones ilegales. Cabe señalar que la política
criminal de los delitos relacionados con el soborno y otras remuneraciones
ilegales se encuentra actualmente en crisis. Se concluye que existe una
tendencia a aumentar la gama de actos delictivos relacionados con la
remuneración ilegal, a ampliar el alcance de la regulación penal de la
responsabilidad por remuneración ilegal mediante la realización de cambios
y adiciones a la composición de los delitos relacionados con la misma, y a
tipicar como delito nuevos tipos de actos relacionados con la remuneración
ilegal, que está asociada con la evaluación del papel de la remuneración
ilegal como un fenómeno delictivo particularmente peligroso, que tiene un
impacto negativo signicativo en las relaciones públicas protegidas.
Palabras clave: políticas penales-jurídicas; corrupción; lucha contra la
corrupción; soborno; manipulación.
Introduction
Countering crime is one of the most important areas of the state’s
activities, implemented within the framework of its criminal policy.
Criminal policy, being a part of public policy itself, includes some
components that correspond to the structure of crime: the ght
against organized, corruption crimes, attacks on the person, etc.
A lot of scientic research are currently devoted to criminal policy
issues, however, a unied approach as to what should be included in
the content of this concept has not been developed in the doctrine of
criminal law.
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1. The theoretical basis of the state’s criminal-legal policy
1.1. Approaches to understanding the criminal - legal policy of
the state
There are now some relatively contradictory approaches to understanding
the criminal policy of the state in science. According to the rst approach,
the concept of «criminal policy of the state» is considered in a broad sense,
where the concept of «criminal-legal policy of the state» is part of the rst.
According to proponents of this approach, the criminal policy of the
state covers all the activities of state and local governments, as well as
public associations and citizens to ght crime and eliminate its negative
consequences. At the same time, in the opinion of A. A. Herzenzon, tools of
both legal and other origin (environmental, medical, economic measures)
can be used to achieve these goals (Herzenzon, 1970; Kazyrytski, 2020).
This approach is partially reected in the denition formulated by N.A.
Belyaev (1986), who under the criminal policy understands
The direction of state and public bodies and organizations based on objective
laws of development of society to protect the interests of citizens from criminal
encroachments by the use of punishment or replacement of punishment measures
of administrative or public inuence to the persons who committed them, as well
as by preventing crimes by means of the threat of punishment (1986: 15).
Proponents of the second approach assume that only legal tools and only
authorized law enforcement agencies can be used to combat crime. At the
same time, the priority is the use of legal means that have found enshrining
in criminal, criminal procedure, and criminal-executive legislation (Zubkov
and Zubkova, 2002).
Thus, the content of the criminal policy includes the policy of criminal-
legal, criminal-procedural, criminal-executive, crime prevention policy,
criminal-tactical policy, penitentiary, criminal-preventive, criminal,
operational-investigative, etc. (Troshchenko, 2011). Categories of criminal-
legal policy and criminal policy of the state in this case also correlate with
each other as part and whole and are not considered as equivalent. This
approach includes the denition of criminal policy given by A.I. Korobeyev
(2019), according to which:
Criminal policy is a general line developed by the state, dening the main
directions, goals and means of inuencing crime by forming criminal, criminal-
procedural, criminal-executive legislation, regulating the practice of its application,
as well as by developing and implementing measures aimed at preventing crimes
(2019: 16).
Finally, the proponents of the third approach view the criminal policy of
the State in a narrow sense. Therefore, it is more than a criminal policy, but
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Criminal policy in countering corruption crimes related to bribery and other illegal remuneration
(legislative aspect)
a criminal policy of the state, as the proponents of this approach consider
only the means of combating crime, which are directly reected in the
criminal law.
The concepts of «criminal policy of the state» and «criminal-legal
policy of the state» are identied with each other in this approach. N.A.
Lopashenko (2004: 266), who writes that the concepts of «criminal policy»
and «criminal-legal policy» are identical to each other, also concludes:
«Criminal policy is no dierent from the policy of criminal law; criminal-
legal policy does not include criminal-procedural or criminal-executive
policies».
1.2. The concept and content of the state’s criminal policy
Preferring the second approach, we believe it is necessary to support
the position of A.I. Korobeyev (2019: 19) in the denition of criminal-
legal policy as the part of criminal policy. It develops the basic objectives,
principles, directions, and objectives of criminal and legal inuence on
crime.
One of the components of criminal-legal policy is law-making, which
is based on the detection of those negative social phenomena, the ght
against which is possible by criminal means, if there is an objective need
of society in criminal-legal regulation. Criminal law is socially conditioned.
The criminal-legal prohibition is a consequence of the reection of the real
needs of society in criminal law. Therefore, the task of the legislator is an
adequate response to changes in the system and structure of public relations
in order to take under legal protection the most valuable and signicant of
them.
Of course, the content of criminal and legal policy is reduced not only to
legislative activity, it includes the activities of law enforcement. However,
the eectiveness and quality of law enforcement depends on the quality
of the criminal law. Therefore, we believe it is necessary to focus on the
legislative aspect of the criminal-legal policy in the sphere of countering
corruption crimes related to bribery and other types of illegal remuneration.
2. Stages of implementation of criminal policy in the eld of
countering corruption crimes
2.1. Establishing anti-corruption legislation
The criminal and legal policy in countering corruption crimes related
to bribery and other types of illegal remuneration, its legal component is
an improvement of legislative measures to counter this type of crime. The
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study showed that such a policy in its evolutionary development has passed
several stages. At the same time, each stage has specic features that have
become determinants for a new round of law-making.
The rst stage of the establishment of legislation to counter corruption
crimes related to bribery and other forms of illegal remuneration is the
adoption and ratication of international obligations and treaties (Council
of Europe’s Convention on Criminal Responsibility for Corruption, 1999);
United Nations Convention Against Corruption, 2003).
Numerous anti-corruption regulations had already been adopted
in the Russian Federation by the time the Criminal Code of the Russian
Federation came into force in 1996. However, there is a dierent approach
of the legislator to assess corruption crimes in terms of their public danger
and to impose penalties for their commission.
This period is marked by the liberalization of criminal legislation in the area of
anti-bribery, which is associated with the mitigation of penalties
even for the commission of qualied bribery. Thus, in the
Criminal Code of the Russian Federation in 1996, for receiving
a bribe in the presence of special qualifying features was sentenced from
seven to twelve years with the conscation of property or without it, and
for giving bribes in the presence of qualifying signs was established the
maximum penalty of imprisonment up to eight years.
In addition, the criminal law in the original version did not contain a
special rule establishing responsibility for mediation in bribery. Judicial
practice assessed these socially dangerous acts from the position of
complicity in bribery (assistance in the receipt of the bribe and assistance
in giving of the bribe).
Since 2007, there has been a further improvement of domestic legislation
in the eld of countering corruption crimes by adopting a signicant
number of legal acts: strategies, concepts, laws, presidential decrees, orders
of various ministries and departments.
2.2. Specication of anti-corruption legislation
Since 2011, the second stage can be identied, which was marked by the
adoption of numerous laws that have made signicant adjustments in the
regulation of criminal responsibility for corruption crimes.
In addition, the responsibility for these forms of misconduct was
seriously dierentiated, namely:
1. a signicant (in total over 25 thousand rubles) and a particularly
large (in total more than 1 million rubles) amounts of bribes have
been established.
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Criminal policy in countering corruption crimes related to bribery and other illegal remuneration
(legislative aspect)
2. the dierentiation of responsibility for bribery, depending on its
size, has been improved.
3. established responsibility for the commission of the act by a group
of persons under preliminary collusion and organized by a group in
Article 291 of the Criminal Code of the Russian Federation.
4. the procedure for calculating the ne for bribery in the size, multiple
value of the subject of the bribe is xed. However, we would like
to point out that the criminal signicance and determination of the
eectiveness of this type of punishment is the subject of separate
study.
5. chapter 15 «Conscation of Property» of the Criminal Code of the
Russian Federation has been introduced, extending its eect to
certain types of corruption crimes related to bribery and other types
of illegal remuneration.
6. the rule establishing responsibility for mediation in bribery with
dierentiation depending on certain circumstances was criminalized
(Article 291 of the Criminal Code of the Russian Federation, 1996).
The novelty of the criminal law in the framework of the ght against
corruption crimes was the rule enshrining the measures of criminal
punishment for the promise or oer of mediation in bribery, established by
the Federal Law from May 4, 2011 No. 97-FL.
However, it is impossible to recognize this criminal-legal prohibition
completely new, previously there were preconditions for its emergence,
just over a hundred years ago in Russia there was such a composition of
the illegal act in the form of bribery at the stages of promise and oer. The
1845 Sentencing of Criminal and Correctional Oences in Article 372-382
chapter VI «On bribery and collusive corruption» section V «On crimes and
misdemeanors in the service of the state and public» recognized bribery as
a completed crime at a time when «money, things and other benets were
only promised to the ocial as promises» provided that the ocial had
complied with the expected actions (Semykina, 2016).
These articles recognized crimes when money, belongings and other
benets were only promised to the ocial as promises, but in this case it
was taken into account whether the law was «in the case of the relaxation
of the law» as a result of the bribe or it was not «an incentive to do so»;
the amount of money, belongings and other goods donated or promised
was insignicant; bribes were handed over to the ocial not directly, but
through an intermediary under the pretext of any imaginary legal and
specious transaction (under the pretext of losing, selling, exchange, etc.)
(Shiryaev, 1916: 425-427, 479-481).
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In the Criminal Statute of 1903, the legislator already allocated one rule
on responsibility for bribing jurors (including those on the reserve list),
which indicated the «acceptance» of bribes oered to him (or them) as the
end of the crime (A. 659) (Criminal Act, 1903: 65-66, 266-268).
In part 5 Article 291 of the Criminal Code of the Russian Federation (1996)
the legislator made provisions for prohibition of promise or suggestion of
mediation in bribery. However, as the study of these legislative innovations
showed, certain provisions of the Criminal Code of the Russian Federation
were formulated in violation of legal and technical rules, in conict with
the provisions of the General Part of the Criminal Code of the Russian
Federation, in connection with which numerous problems of a practical
nature have given rise to.
Establishing responsibility for promise or suggestion of mediation in
bribery the Legislator does not connect these actions with a size the way it
was done in part 1 Article 291 of the Criminal Code of the Russian Federation
(1996). This way, actions written in part 5 Article 291 of the Criminal Code
of the Russian Federation (1996) are considered as crimes regardless the
size of the bribe.
In addition, the legislator for a not quite clear reason made a roll in
the direction of a signicant increase in responsibility for bribery under
Article 291 of the Criminal Code of the Russian Federation, which already
included ve parts. At the same time, the sanction of part 5 Article 291 of
the Criminal Code of the Russian Federation for bribery in a particularly
large amount set a penalty of imprisonment for a period of seven to twelve
years with a ne of seventy times the amount of the bribe.
2.3. Transforming criminal law in the ght against corruption
The third phase (2016-2017) is related to the transformation of criminal
law in the eld of anti-corruption, which was signicantly inuenced by the
issuance of decrees of the President of the Russian Federation from April 2,
2013 No. 309 «On measures to implement certain provisions of the Federal
Anti-Corruption Act» (Decree of the President of the Russian Federation,
2013a), April 2, 2013 No. 310 «On measures to implement certain provisions
of the Federal Law on the Control of Compliance of Expenditures of persons
replacing public oce and other persons and their income» (Decree of the
President of the Russian Federation, 2013b); from April 1, 2016 No. 147
«On the National Anti-Corruption Plan for 2016-2017» (Decree of the
President of the Russian Federation, 2016).
In connection with the publication of legal acts, the legislator, embodying
the goals of criminal policy at the current stage of the development of the
state, strengthens the responsibility for corrupt ocials. Thus, the Federal
Law No. 324-FZ of July 3, 2016, the Criminal Code of the Russian Federation
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Criminal policy in countering corruption crimes related to bribery and other illegal remuneration
(legislative aspect)
was supplemented by Article 204 and 291, providing responsibility for
petty commercial bribery and petty bribery, in which the amount of bribery
or bribes is no more than ten thousand rubles (Federal Law of the Russian
Federation, 2016).
It is worth noting that the need to establish responsibility for petty
bribery arose before the moment of criminalization in the national anti-
corruption plan for 2010-2011 (Decree of the President of the Russian
Federation, 2010). In this document, the term «domestic corruption» was
dened as «corrupt violations, which citizens encounter most often».
In an explanatory note to the draft of Federal Law was noted that in
2012-2015 most criminal cases on the facts of commercial bribery, giving
or receiving bribes were initiated with the sum of less than ten thousand
rubles. That was why it was suggested that the small public danger of such
crimes should be considered and that the need to implement the principle
of fairness in criminalizing those acts should be taken into account. At the
same time, it was proposed in the sanctions of this article to establish a
more lenient punishment than provided for by sanctions of Part 1 of Article
290 and Part 1 of Article 291 of the Criminal Code of the Russian Federation
(Explanatory note to the draft Federal Law, 2016).
Establishing responsibility for criminal acts of corruption of up to ten
thousand rubles is a logical legislative decision, corresponding to the spirit
of changes previously made in Articles 204, 290, 291 of the Criminal Code
of the Russian Federation, according to which a signicant, large, and
especially large number of bribes or bribery were provided as qualifying
features.
2.4. Development of the concept and improvement of legislation
in accordance with the National Anti-Corruption Plan 2018-
2020
The fourth phase (2017-2019) is related to the development of the
concept and the improvement of legislation in accordance with the National
Anti-Corruption Plan for 2018-2020 (Decree of the President of the Russian
Federation, 2018).
In accordance with the anti-corruption strategy of the Prosecutor’s
Oce, the prosecutor’s supervision of the implementation of the law on
public and municipal service has been strengthened.
In addition, the improvement of criminal legislation in countering
such crimes continued. Thus, on May 4, 2018, the amendments made by
the Federal Law of April 23, 2018 no. 99-FZ (Federal Law of the Russian
Federation, 2018) in the Criminal Code of the Russian Federation and
the Criminal Code of the Russian Federation, aimed at strengthening the
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responsibility for violations in the procurement of goods, works, services
for the provision of state or municipal needs, in connection with which the
composition of the crime was criminalized (Article 200 of the Criminal
Code of the Russian Federation, 1996)). The norm is designed quite similar
to the composition of commercial bribery, establishes responsibility for two
counter-acts: illegal transfer of the subject of bribery and illegal receipt of it
by representatives of the customer.
2.5. Criminalization of the composition of corruption oences
related to bribery and other forms of illegal remuneration
The fth phase (2020 to the present) is related to the ongoing
criminalization of the composition of corruption crimes related to bribery
and other types of illegal remuneration. Federal law of October 27, 2020,
No. 352-FZ introduced responsibility for bribing the arbitrator Article 200
of the Criminal Code of the Russian Federation (Federal Law of the Russian
Federation, 2020).
As can be seen from the periodization of the stages of the evolution of
the criminal-legal policy to counter the corruption crimes related to bribery
and other types of illegal remuneration, it occurred in leaps and bounds,
but at the same time it was caused by a whole set of factors. This includes
the adoption of international obligations by the Russian Federation; the
emergence of new types of crimes involving bribery and other new types
of crimes related to giving and receiving illegal remuneration and the need
for a legislative response to them; need to deepen the dierentiation of
criminal responsibility for crimes related to bribery and other types of illegal
remuneration, and the need for a legislative response to them (Anyushina
et al., 2021; Korobeyev, 2019; Szakonyi, 2021).
The process of law-making during all the ve stages of the development
of criminal and legal policy in the sphere of countering corruption crimes
related to bribery and other types of illegal remuneration, makes it possible
to conclude that it is haphazard and inconsistent, which is due to the initial
lack of a clear concept to counteract this type of act. In turn, the haphazard
nature of the change in criminal law in the designated sphere led to the
discrepancy of individual norms among themselves, diculties in law
enforcement.
Conclusion
Speaking about the current state of the criminal-legal policy of the
state as a whole, most scientists note that it is in crisis. This applies fully
to the criminal-legal policy in the area of countering corruption crimes
related to bribery and other types of illegal remuneration. We believe
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Criminal policy in countering corruption crimes related to bribery and other illegal remuneration
(legislative aspect)
that the development of a scientically sound concept for ghting crime
and reforming criminal legislation in the area of countering corruption
crimes related to bribery and other illegal remuneration can contribute to
the development of a scientically sound concept for ghting crime and
reforming criminal law. Implementation of such a concept would help
to bring criminal law with a criminological reality, implement systemic
measures to prevent corruption crimes related to bribery and other forms
of illegal remuneration.
The current legislation has signicantly increased the responsibility for
illegal remuneration, depending on the area of public relations in which
the encroachment is committed, the range of persons involved in criminal
activities, the nature of their actions (inactions). Monitoring of existing
legislation shows a tendency to increase the range of criminal acts related
to illegal remuneration. This appears to be due to an assessment of the role
of illegal remuneration as a particularly dangerous criminal phenomenon,
which has a signicant negative impact on legally protected public relations.
In recent years, there has been a steady trend of expanding the scope of
criminal regulation of liability for illegal remuneration by making changes
and additions to the composition of crimes related to such and criminalizing
new types of acts related to illegal remuneration. Thus, since only 2018 and
till present times The Criminal Law has been completed with new elements
of crime: Article 200 5 of the Criminal Code of The Russian Federation
“Bribing of a contact service worker, contract manager, the member of
buying commission” and Article 200 of the Criminal Code of the Russian
Federation «Bribing an arbitrator (awarder)».
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