Before Federal Law of 29 December 2022 No. 591-FZ “On Amendments to Articles 5 and 121 of the Federal Law “On Combating Corruption” was adopted, the obligation to report all cases of incitement to corrupt practices had rested with:
- the public and municipal servants;
- the servants of the Central Bank of the Russian Federation;
- the individuals holding positions in public corporations, public law companies and other organisations founded by the Russian Federation under federal laws;
- the individuals holding certain positions under employment contracts in the organisations founded to perform the tasks of federal public bodies;
- the individuals holding the positions of financial ombudsman and head of administration of the financial ombudsman; and
- the members of regional parliaments of the Russian Federation.
Under the new amendments, the individuals holding public positions in the regions of the Russian Federation are also obliged to report the facts of their incitement to corruption to the prosecutor’s office or other competent bodies within five days from the date of their occurrence.
What is more, the Law stipulates that reporting of the cases of incitement made by these individuals and of the cases of commission of corruption offences by other officials constitute the grounds for providing them with protection under the law of the Russian Federation.
The mechanism for informing a representative of the employer, the prosecutor’s office or other public bodies about incitement to corruption adopted by Russia is actually a variation of the generic anti-corruption tool of whistleblowing.
Foreign countries, in most cases, employ the instrument with respect to not only public servants but also with regard to a wide range of potential whistleblowers up to any citizen of the country with the subjects of reports usually covering any facts of corruption or other offences that come to their knowledge. Additionally, they have a broad range of measures for protecting whistleblowers from potential retaliation in connection with their reporting.
In the Russian Federation, the obligation to report the cases of incitement to corruption is imposed only on the abovementioned categories of public officials and regards exclusively the cases where the whistleblower is the individual who is incited to commit an offence. The procedure for disclosing other corruption offences that come to the knowledge of officials is not defined by the Russian legislation: in this case the officials (employers) who wish to report a violation can resort to the general legal provisions that stipulate that citizens must contact law enforcement or other public bodies.
The measures to protect whistleblowers are also considerably limited in Russia: until a criminal case is opened based on the report and the reporting person is involved in the criminal court proceedings, he/she can actually count only on the prohibition established by the law to hold him/her disciplinary liable within a year from the date of disclose without consent of the commission on compliance with the requirements to official conduct and conflict-of-interest management (subparagraph “a” of paragraph 21 of Decree of the President of the Russian Federation of 2 April 2013 No. 309 “On the Measures for Implementing Certain Provisions of the Federal Law “On Combating Corruption”).
The attempts to develop dedicated and more detailed legislation regulating disclosures of offences and protection of whistleblowers have actually been made in Russia, in particular, in the 2015 and 2017 bills. However, none of them was adopted. Moreover, the approaches to regulating this anti-corruption institution promoted in the bills did not address all the existing challenges.
In our view, the development of truly enforceable legislation on whistleblowing requires thorough analysis of other countries’ experience, in particular, of those that enjoy a long record of legal regulation of whistleblowing and protection of whistleblowers. This is why the Anti-Corruption Centre of the Higher School of Economics University is planning to undertake research into reporting of corruption offences and protection of whistleblowers in 2023.