Federal Law of 10 July 2023 No. 286-FZ “On Amendments to Certain Legal Acts of the Russian Federation” provides for the possibility not to hold officials disciplinary liable for failure to comply with restrictions and prohibitions, requirements to the prevention and management of conflicts of interest and non-performance of obligations established to counter corruption (hereinafter, anti-corruption RPO) if the failure to comply with them is due to the circumstances beyond officials’ control.

These are extraordinary and unavoidable circumstances beyond officials’ control that in those conditions could not have been expected or avoided or could not have been overcome and that exclude the possibility to comply with anti-corruption RPO, in particular:

• natural disasters (including earthquakes, floods and hurricanes);
• fires;
• mass diseases (epidemics);
• strikes;
• military actions;
• terrorist attacks;
• prohibition or restrictive measures undertaken by public bodies (including those adopted by foreign public bodies) and local government bodies.

The decision on whether the failure to comply with the requirements of the anti-corruption legislation was caused by the circumstances beyond officials’ control rests with commissions on the improvement of requirements to professional conduct and conflict-of-interest management (hereinafter, commissions). In particular, officials must file a notification about such circumstances supplementing it by supporting documents, other materials and/or information (if available) to commissions within three working days from the day on which they became aware thereof (ten working days from the day of termination of such circumstances if the circumstances had prevented him/her from submitting the notification).

However, within a month of termination of the relevant circumstances officials must take action to ensure compliance with the anti-corruption RPO.

Even at the stage of consideration of the draft Law, it caused a wide response and was often presented as an “indulgence for corrupt officials” in the media and social networks.

However, this negative perception was hardly justified. The Law has rather a technical character and largely reproduces the framework for exempting from disciplinary liability already put into practice in Russia:

1) The legal act does not provide for the possibility to exempt from liability for more important corruption offences, in particular, from criminal liability for passive bribery, abuse of functions or other corruption-related crimes. It is only about possible exemption from disciplinary liability for failure to comply with anti-corruption RPO (obligation to submit information on income, expenses, property and property-related obligations, obligation to take measures to prevent or manage conflicts of interest, restrictions to undertake other paid activities, prohibition to accept gifts etc.);

2) The possibility of exemption from disciplinary liability for non-compliance with anti-corruption RPO was foreseen by the Russian legislation before that with the key role assigned to the commissions: in particular, officials can file a notification about the impossibility to submit information on income, expenses of their spouses and/or minor children due to objective reasons, and a notification about impossibility to comply with the prohibition to open (have) accounts (deposits) in foreign banks, use foreign financial instruments (for instance, on the impossibility to close the accounts (deposits)). Moreover, back in 2016, the Ministry of Labour and Social Protection of the Russian Federation mandated to provide advice and guidance on the enforcement of anti-corruption legislation stressed that “improper compliance with the prohibition, failure to fulfill the obligation due to force majeure, i.e. extraordinary and unavoidable circumstances under these conditions (fire, flood, military actions etc.) that objectively impede the submission of information on income, expenses, property and property-related obligations within the term established by the law or the receipt of information (documents) necessary for disclosing this information in an accurate and complete manner, and compliance with the restriction, prohibition, obligation to prevent or manage conflicts of interest”, do not constitute a corruption offence.

3) In spite of the fact that the adopted Law envisages that the presence of certain circumstances can constitute the grounds for the exemption from disciplinary liability, it does not eliminate the need to comply with the legal requirements. As highlighted above, the relevant requirements which officials fail to comply with due to the reasons beyond their control must be fulfilled within one month from the date of the termination if these circumstances.

In general, the initiative to relax the framework for enforcing disciplinary liability measures for failure to comply with anti-corruption RPO is considered as positive, because it is designed to provide the representative of the employer (employer) with the grounds not to punish the servant (employee) if he/she fails to fulfill the obligations imposed on him/her for objective reasons beyond his/her control. The absence of these grounds in the law actually implied that liability, up to dismissal due to the loss of trust, was to be enforced for any failure to fulfill anti-corruption obligations even if the servant (employee) was physically unable to meet them.

At the same time, a number of provisions of the Law raises questions and, in our view, needs further elaboration. In particular, the legal act provides for the possibility to exempt from liability for failure to comply with any restrictions, prohibitions and obligations designed to combat corruption. The impossibility to comply with some anti-corruption requirements for reasons beyond the control of a natural person does not raise questions: in fact, natural disasters can impede timely submission of information on income, while the sanctions imposed by foreign states can make it impossible to close accounts in foreign banks or dispose of foreign financial instruments. However, the impact of the “force majeure circumstances” listed in the Law on the possibility to comply with a number of other restrictions and prohibitions does not seem to be that obvious. For instance, it is not totally clear how these force majeure circumstances can impede compliance with the restrictions on direct subordination (supervision) of close relatives or performance of other paid work. It seems that prior to the adoption of the Law it would have been more rational to systematically analyse all restrictions, prohibitions and obligations designed to combat corruption and assess separately the expediency of exemption from liability for failure to comply with an anti-corruption requirement due to the reasons beyond the control of a natural person for each of such requirements.