Institute of Democracy and Cooperation

5 March 2009 - debate on corruption law in Russia and France

Publication day: 16/4/2009

Honoré Daumier,
"We are all honest men, let us embrace and put aside our disagreements" (1834)

On 5 March 2009, a debate was held at the Institute of Democracy and Cooperation in Paris on “The prevention of corruption: law in Russia and France.”

The main speaker was Elvira Talapina, a researcher at the Institute of State and Law in Moscow who has been teaching at the University of Nanterre (Paris – X). She is noted in Russia for having devised a formula whereby the way in which a law should be implemented is specified in the text itself.

Mrs Talapina began by emphasising how important the question of corruption is in Russia. Russia has recently joined the GRECO Group of States Against Corruption within the Council of Europe and as recently as December 2008 three new laws were passed on the subject. However, the implementation of international norms on corruption was not always consistent, she said.

The new laws govern three areas: recruitment to the civil service, which is now based on clear guidelines for establishing merit; promotion, including rules against receiving presents and rules against public officials having any other income; and rules on the declaration of income (these require that the family members of an official must declare heir income, not just the official alone).

These measures concern all public officials including judges and members of parliament, as well as civil servants. The rules against private income and those governing employment after leaving public office are proving rather unpopular with officials, since there are indeed a number of people from the private sector coming to work in various parts of the state administration.

Mrs Talapina emphasised that the most important element is to get Russian society used to the idea of the fight against corruption. The latest laws address precisely this problem of the public tolerance of corruption. She said that another issue is that laws often conflict with one another and these defects inevitably lead to corruption.

The president of the Institute of Democracy and Cooperation, Natalia Narochnitskaya, said that one of the causes of corruption was the ideology of “enrichissez-vous” (enrich yourselves!) which dominated Russian public life in the 1990s. The ethic then was that any income was good, the more the better, regardless of where it came from. She agreed that the philosophical and religious foundations of society were a key element in improving public morals: no law can make people good if they have no moral sentiments, she said.

In reply to Mrs Talapina, Paul Falcone – a practising lawyer and a member of the Council of State (France’s highest judicial body) – said that he was pleased to learn that Russia was making progress on matters of corruption. To take a historical perspective, he said that the corruption of public authorities and the fight against it, was a very old problem of human societies. As an example, he referred to the times of the Roman Republic and the Roman Empire, where corruption of public officials was severely punished. If a magistrate was been convicted of corruption, he could even be punished by the death sentence.

Even today different societies and countries have had different tolerance levels. The Nordic countries generally have a good record on corruption, the Southern states less good. As an example, on the scale of perception of corruption of 0 (highest degree of corruption) to 10 (lowest degree of perceived corruption) established by Transparency International for the year 2008, France has been ranked at the level of 6,9 out of ten (a downgrade from 7,3 in 2007). The Nordic countries fare generally very well in the rankings: Denmark and Sweden have been ranked at 9,3, the highest score provided by the rankings, and this for many years in a row. Russia was ranked at 2,1 in 2008 down from 2,3 in 2007.

Falcone emphasised that in France the punishment for corruption was severe, both in administrative law and in criminal law. An official convicted of corruption could be sacked and lose his pension. He particularly emphasised the role of the criminal law since this obviously concerns both the giver of a bribe and the taker of one, i.e. not just public officials. But he also emphasised that the moral sanction attached to criminal convictions had in some cases more weight even than the sanctions themselves: in particular the moral sanction attached to being condemned by a criminal court for corruption, bribery, or influence peddling, was very severe for politicians. Such convictions have indeed finished or seriously damaged the political careers of many politicians, both at local but also at national level in France (and in other European countries as well).

Finally, the tax authorities within the Ministry of Finance have also increased their powers of investigation, and they can now access information from private bank accounts within the framework of the new directives of the European Union against money laundering. These investigations are conducted through a specialized body called “Tracfin”, a special entity created within the Ministry of Economy and Finance and in charge of investigating unusual transfers of funds.

The new directives and regulations indeed require banks to inform “Tracfin” about unusual operations and transfers of funds carried out by their customers, without being obliged to inform their customers that information about them has been transmitted to the relevant authorities. . In 2007, more than 12,000 suspicious transactions were reported to Tracfin, compared with 2,500 in 2000. Out of these 12,000 reports of suspicious transactions, roughly 410 cases were forwarded in 2007 to the Prosecutor’s office for full-fledged legal investigation and possible prosecution and conviction.

Paul Falcone dwelt at length on this element, citing ongoing examples of people in public life who were now subject to full-fledged investigation by the Prosecutor’s office after suspicious transfers of funds in their bank accounts had been reported to Tracfin by the banks themselves.

Unfortunately such cases were often marred with abuses themselves, most notably the violation of judicial secrecy: cases were leaked to the press while the prosecutor’s office was still investigating matters, whereas the law requires that such investigations remain secret until the prosecution decides to transfer the file to an investigating magistrate who investigates further before the case is being brought to Court.

Mr. Falcone emphasised that one of the important elements of the French penal system is the investigating magistrate, le juge d’instruction. Unknown to Russian or Anglo-Saxon legal practice, the juge d’instruction is an independent magistrate who, on the basis of the preliminary investigation conducted by the Prosecutor’s office, compiles the case for and against a defendant. His final report forms then the centrepiece of the transmission of the case to the relevant Court. In France, the juges d’instruction have proved very independent from the political authorities and have conducted a significant numbers of very sensitive investigations across political spectrum leading to the criminal conviction of senior executives in large state-owned corporations, senior local officials, and even in some cases Ministers themselves. The institution is criticised in common law jurisdictions because of the excessive power which it seems to hand to the state but Mr. Falcone defended it strongly, saying that in the vast majority of cases the investigating magistrate was fully independent, both from the Political authorities and also from the Prosecutor’s office. Indeed, he said, in his own personal view, it was preferable to the British and American system where it is the police, and not the judiciary, who lead investigations, and where a lawyer has to play the role of the juge d’instruction as early as possible in the investigation proceedings to counter the investigations by the police and to contradict the police’s findings and conclusions. In such a system, lawyers’ costs for a defendant can be extremely high.