Our campaign to ratify Article 20 of the UN Convention against Corruption is still proceeding according to plan.
The good news is that we are still at the stage of collecting signatures for the bill on the Russian Public Initiative platform, while the Kremlin riffraff has started showing clear signs of anxiety.
As we can see, the main “counteraction” mechanisms, such as the Investigative Committee, have already been brought into play.
But more importantly, they have started using media and ideological tools as well—that is, they have begun arguing publicly (not with us directly yet, but out into the broader public sphere) about whether “illicit enrichment” should be criminalized.
The most widely read pro-Kremlin tabloid, Komsomolskaya Pravda, has published a lengthy “legal” article claiming that there is no need to ratify anything. Paid bloggers have started churning out posts as well, and most importantly, we have seen a fairly big fish come out into the open.
On October 2, none other than V. I. Mikhailov, Deputy Head of the Presidential Directorate of the Russian Federation for Anti-Corruption Issues, gave a public lecture at the “Higher School of Public Administration”** on the topic: “Anyone who supports ratifying Article 20 is a fool.”
You can read the main theses of this lecture here. Also take a look at a student’s impressions of the lecture.
To be fair, it has to be admitted that the lecture was put together quite skillfully and achieves its goal: using an academic format to feed nonsense to people who do not know the subject well.
Since the lecture brought together all the arguments used by opponents of ratifying Article 20, we thought it was important to write an explanatory text for everyone—one that would help each of us convincingly defend our position and expose the hollowness of the Kremlin’s “proof,” as it fears the criminalization of “illicit enrichment.”
So, let’s go through the Kremlin’s lies (and distortions) point by point:
Argument 1. Article 20 appeared because of the persistent position of the delegation of one South American country (in his lecture, Mikhailov says Peru), which was pursuing purely political goals. This was supposedly the only way to imprison former President Fujimori. Other countries did not want to adopt this article because it violates the presumption of innocence and treats not the act itself, but its result, as criminal. In the end, the article was adopted in a “soft form”: it does not require the criminalization of illicit enrichment, but merely suggests that countries consider such a possibility.
Response. Illicit enrichment as a criminal offense was not invented by any one country in the run-up to the UN convention. In Argentina, a law was adopted as far back as 1964 under which it was a crime to possess “resources whose origin a public official cannot explain.” The reference to Peru and that country’s deposed ruler, Alberto Fujimori, as if Peru had lobbied for Article 20 because of him, does not hold up. How could one country—Peru, of all countries—lobby the entire UN into adopting an article? It is also worth noting that Fujimori was convicted not only in connection with this issue, but also for creating “death squads” (for which he received 25 years), bribing the head of the national intelligence service, illegal wiretapping, bribing journalists with public funds, and abuse of office. Article 20 of the UN convention indeed does not require states to add illicit enrichment to their criminal codes. Drafting international conventions is a complex negotiation process, especially conventions of this scale. We know that diplomacy has its own special language, with its own turns of phrase, expressions, and formulations. That is a reasonable approach. Criminalizing illicit enrichment is, to some extent, an extraordinary measure intended to intensify the fight against corruption. That is precisely why it has been used in various forms in corrupt countries—Argentina, Hong Kong, and Singapore (which were extremely corrupt in the 1970s), China, Colombia, and many others. In developed countries with low levels of corruption, such as Finland or Sweden, there is simply no need for it—the culture of legal compliance allows them to manage through other means (mandatory asset declarations, a free press, a developed democracy and rotation of power, independent law enforcement agencies, their clear and timely work, and so on). Russia ranks 127th in terms of corruption and is much closer to 1970s Argentina and Hong Kong than to Finland. We need to adopt this article not because the UN convention obliges us to do so. We need it for ourselves, as an effective method of fighting corruption.
Argument 2. When considering international laws, one must take into account “differences in culture” between countries and societies. Provisions introduced from outside can become the norm for the majority of society, be accepted by them, and be supported only if the national elite makes substantial efforts by following those norms themselves and explaining them. Society needs time to develop a certain attitude toward new models of behavior.
Response. “Differences in culture” cannot justify officials stealing. A “social order” that excuses theft should be fought, not encouraged. Russia deserves to be an honest, modern country, not to live in a semi-feudal world where officials are expected to steal as a matter of custom.
As for Mikhailov’s statement that “provisions introduced from outside can become the norm for the majority of society, be accepted by them, and be supported only if the national elite makes substantial efforts by following those norms themselves and explaining them,” one can only agree wholeheartedly. It is precisely officials, deputies, and top managers of state-owned companies who should become the standard of openness and willingness to explain the origin of their wealth. If Russian citizens see that their officials are honest, corruption will decline across the board. But when they see that a deputy with an official salary of 2 million rubles lives in a house worth 100 million rubles and claims that his mother-in-law earned the money for it, everyone understands that lying and stealing are acceptable. That is exactly why a law establishing criminal penalties for illicit enrichment is needed.
Argument 3. Russia ratified the UN convention without any reservations or exceptions. Therefore, all talk about the need to ratify Article 20 is groundless. Article 20 was omitted from the statement issued after the document’s adoption, but that was due to purely technical reasons.
Response. Russia adopted a law on ratifying the UN Convention, and it lists the articles over which our country accepts jurisdiction. Article 20 is not among them. In other words, Russia excluded Article 20 from practical implementation, even though it ratified the convention. In this situation, demands to adopt Article 20 are not groundless—they are entirely justified, because Russia is not applying it at present. A federal law is not a technical document; it is precisely what determines which articles our country will implement, and Article 20 is not there. We believe this article should be adopted for implementation, included in federal law, and used as the basis for introducing criminal penalties for illicit enrichment into the criminal code.
Arguments 4–5. Article 20 of the UN Convention does not oblige a country to introduce criminal penalties for illicit enrichment into its criminal code; it merely calls on states to consider that possibility. Russia considered that possibility and concluded that it would contradict Article 49 of the Russian Constitution, which guarantees the presumption of innocence.
Response. The UN Convention does not contain a rigid legislative formula. Each country introduces penalties for illicit enrichment in light of its own conditions and the rest of its legal framework. That is exactly why we are proposing a law on illicit enrichment that does not contradict the constitution. The offense would be defined as a substantial excess of an official’s assets over their lawful income (that is, income declared in official filings). Investigators would analyze the market value of the property, the actual circumstances of its acquisition, and the official declarations submitted. In the end, the burden of finding evidence lies with the investigation. The presumption of innocence is not violated.
To finally put to rest the very popular argument that “Article 20 contradicts the Constitution,” I will quote an interview with one supporter of ratifying Article 20:
Whose words do you think these are? Some rabid opposition figure who despises the constitution? No—this is Valery Zorkin, Chairman of the Constitutional Court of the Russian Federation, a well-known fan of serfdom and the author of countless thoroughly reactionary articles. In other words, he is about as far from an opposition figure as one can get. So if the Kremlin wants to argue about whether Article 20 is constitutional, it can argue with Zorkin; on this issue, we agree with him.
Argument 6. Russian criminal law cannot implement Article 20 at all, because under it, what is treated as a crime is some final state of affairs rather than a specific act. But under Russian law, only a specific action can be recognized as criminal.
Response. That is not quite the correct interpretation. Under Article 20, the _criminal act is the failure to explain the origin of asset_s, not the mere fact of possessing them. Under our proposed law, the crime would be a substantial excess of asset value over the income declared. In other words, there is a criminal act here as well: the person failed to declare income sufficient to explain the origin of the assets, while at the same time using or owning those assets.
Argument 7. Russia already has criminal liability for various forms of illicit enrichment, in particular in Chapter 21, “Crimes Against Property,” and Chapter 30, “Crimes Against State Authority, the Interests of Public Service, and Service in Local Self-Government Bodies.” In addition, for the purpose of punishing illicit enrichment, one should use Article 169 of the Russian Civil Code, which allows a transaction to be declared void if it was carried out for a purpose knowingly contrary to the foundations of law and morality.
Response. This is a manipulation of terms. In Article 20 and in our law, illicit enrichment means a specific phenomenon: the value of an official’s assets exceeding their income. The author, however, interprets the term in a loose everyday sense and proposes calling something like theft “illicit enrichment.” Of course, money obtained through theft is illegal, and the person becomes richer. But that interpretation is a deliberate distortion: the concept of illicit enrichment that is being proposed for criminalization is precisely defined, and it is not the same as theft.
Article 169 of the Civil Code allows a transaction to be declared void if it runs contrary to the foundations of law and morality. For example, gifting shares in an apartment to a large number of people as part of some later fraudulent scheme could be treated as such a transaction. How that would help in cases of illicit enrichment is unclear. In that case, you would still have to prove the underlying crime—fraud. The whole point of introducing illicit enrichment into the Criminal Code is precisely that we would not need to prove the underlying crime (a bribe, embezzlement, theft); we catch the bribe-taker through their unexplained assets.
Argument 8. The task of punishing illicit enrichment is also addressed by the fines established by law for corruption offenses.
Here again, terms are being swapped around: illicit enrichment is being used not in the sense described in Article 20 of the UN Convention and in our law, but to mean any acquisition of money in violation of the law—for example, a bribe. Bribes can be punished with multiple fines; that is aimed at fighting bribery. It has no direct relation to punishing illicit enrichment as described in Article 20 and in our law. And besides, as practice shows, all of Medvedev’s “anti-corruption” measures, such as fines, have done nothing to help the fight against corruption.
Argument 9. Many countries ratified the UN Convention without reservations, yet did not add anything to their criminal codes. In other countries, penalties for illicit enrichment are implemented through the civil code and civil service law.
Response. Here the author cites European countries as examples, specifically Finland, Denmark, Norway, and Sweden. But it is enough to look at the Corruption Perceptions Index to understand why these countries are in no hurry to add illicit enrichment to their criminal codes:
1st place — Denmark and New Zealand
3rd place — Finland
4th place — Sweden
5th place — Norway
They are all in the top five of the ranking and have the lowest levels of corruption in the world. They simply have no need to introduce an article such as illicit enrichment into their criminal codes, since it is largely a special and extraordinary anti-corruption measure. In Russia, the situation is the opposite. We are in 127th place, alongside Ethiopia and Mozambique. Introducing criminal penalties for illicit enrichment into the criminal code, together with other tough methods of controlling officials, would allow us to leave this shameful position behind.
All the other countries cited as examples also perform far better than Russia in terms of corruption: Belgium is 15th, the United States 19th, France 22nd, and Portugal 33rd. At the same time, the author notes that Belgium has penalties for discrepancies between the value of assets and the income declared. He does not consider other examples where such a provision has been adopted. For instance, he does not mention that Hong Kong achieved success in fighting corruption thanks to tough measures aimed at officials, or that Lithuanian law includes liability for illicit enrichment (Article 189-1), and that it applies not only to officials.
Argument 10. In Russia, the idea of punishing illicit enrichment is already implemented through the anti-corruption law. It allows officials to be dismissed for loss of trust over false declarations, conflicts of interest, or engaging in business activity.
Response. Such a law does indeed exist, but it does not punish illicit enrichment. It regulates the procedure for filing declarations. Under the law, nothing prevents an official from owning a house worth 100 million rubles while having an official income of 1 million rubles. Second, even errors in declarations carry only a very weak penalty (dismissal, and even then without a ban on future public service), which does not encourage officials to avoid such misconduct. Third, declarations and conflicts of interest are supposed to be checked by the state bodies in which the officials work, and those bodies are often not interested in doing so at all. These measures do not provide полноценного punishment for illicit enrichment. For example, a deputy may claim that he leases land for 30,000 rubles, hundreds of times below the market price, and the State Duma commission believes him. And there are not even grounds for a preliminary investigation, because illicit enrichment is not currently criminalized in Russia.
Introducing criminal penalties for illicit enrichment would increase accountability, which means officials would be afraid to live beyond their means. In addition, law enforcement agencies would handle the investigations, helping to avoid situations where, for example, serious allegations are made against a deputy but the decision is left to a State Duma commission dominated by his own party colleagues.
Argument 11. Illicit enrichment by officials is addressed by the law requiring them to provide information on expenditures if a property purchase exceeds their income for the previous three years.
Response. Such a law does indeed exist, but it does not establish criminal liability for illicit enrichment. If the amount of an official’s purchase exceeds their income, they will be dismissed and the information will be passed to the prosecutor’s office. The prosecutor’s office must then begin an investigation into how exactly the official acquired those funds. No additional criminal article is introduced.
Moreover, under this law, declarations are analyzed by the oversight bodies in the official’s own workplace, not by law enforcement agencies. And those bodies are often not interested in doing so. For example, a State Duma commission may clear a deputy simply because he is their party colleague.
Unlike declarations, expenditure data are hidden from the public. If our law establishing criminal liability for illicit enrichment is adopted, citizens, civil society organizations, and the media will be able to compare the cost of an official’s mansion with their declared income and, on that basis, demand criminal prosecution. At present, data on officials’ expenditures are not published and are not even provided upon request. This greatly hampers the work of the media and society, reducing the likelihood of punishment. Moreover, such secrecy allows officials to understate the value of transactions, while oversight bodies either cannot or do not want to scrutinize those figures in detail.
So yes, this law does contain a certain move toward greater control over officials’ assets, but in practice it leads nowhere. Introducing criminal liability for illicit enrichment would make oversight of officials’ assets far more effective, involve society and the media in the process, and increase the likelihood of holding officials accountable. Ultimately, it would finally make it possible to engage in a real fight against corruption.
So there you have it. I hope this short primer will strengthen the arguments of every supporter of the Twenty campaign and help with outreach and explanation.
Let me remind you that it is very important for us to collect 100,000 signatures on the Russian Public Initiative platform as soon as possible. So far, we have 41,000. Let’s step things up. If you have already voted, persuade a couple of other people to do the same.
Also, take a look at the page where you can get banners to place on your website or blog.
A rolling stone gathers no moss (Russian proverb: nothing happens without effort). The authorities will respond only under public pressure. Let’s push the crooks out of their comfort zone.