Russian experience: toughening of punishment

When preparing the law-in-draft "On Public Procurement in Pridnestrovie", its authors - Mikhail Burla, Viktor Guzun, Vadim Doni, Grigory Dyachenko, Vadim Kravchuk, Sergei Cheban - focused on world experience, primarily the Russian Federation.

Since January 1, 2014 there is a new law on state purchases in the legal environment of the Russian Federation. It was adopted on April 5, 2013 and is called "On the contract system in the sphere of procurement of goods, works, services to ensure state and municipal needs".

However, the work to improve the legal framework in the sphere of public procurement in Russia has never ceased. The law enforcement practice is the "guilt". On the margins of the St. Petersburg International Economic Forum, Alexei Kudrin, the head of the Accounts Chamber of the Russian Federation, made a statement that state purchases in the sphere of ​​corruption became a "pain point" in the country.

At the same time, as the chairman of the Accounting Chamber assured, in the next 2-3 years the Russian authorities are determined to take decisive steps in this sphere.

They are already being undertaken. In March this year, on the initiative of Vladimir Putin, the law-in-draft was submitted to the State Duma for consideration, suggesting an increase in criminal liability for committing crimes in public procurement.

For violations of the current legislation in the field of public procurement provides the document for the imposition of a fine of up to 200 thousand rubles, as well as imprisonment for up to 3 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years or without it.

Chapter 22 of the Criminal Code of the Russian Federation proposes to supplement with new articles-abuses in the sphere of procurement of goods, works, services to provide state or municipal needs and bribery of a contract service employee, contract manager, member of the procurement commission.

In addition, article 304 of the Russian Criminal Code proposes to make changes, establishing responsibility for provoking bribery in the procurement of goods, works, services to ensure state or municipal needs.

Thus, in accordance with Article 204.4 of the Criminal Code of the Russian Federation, it is envisaged to establish responsibility for violation of the law on the contract system in the procurement of goods, works, services for ensuring state and municipal needs, made from mercenary or other personal interest by persons who are not officials or persons, carrying out managerial functions in a commercial or other organization, if the act caused major damage.

In particular, it is proposed for such a crime to impose a fine of up to 200 thousand rubles or to attract a person to forced labor for a period of up to three years. A person may be deprived of liberty for a term of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for the same period. As qualifying signs of this crime, it is proposed to establish the commission by a group of persons of prior conspiracy, as well as the infliction of major and particularly large damage. The maximum penalty for this rule will be in the form of imprisonment for up to seven years.

The new article 200.5 of the Code provides for the establishment of responsibility for the bribery of a contract service employee, a contract manager, a member of the procurement commission, a person who accepts delivered goods, performed work, services provided, or another authorized representative representing the interests of the customer, for the purpose of unlawfully influencing the actions taken by them solutions. The maximum sentence under this article is proposed to be fixed in the form of imprisonment for a term of seven to twelve years.

A note is provided in this article, in which the grounds for the release from criminal liability of the person who transferred the illegal remuneration to the specified persons are determined.

Article 304 of the Russian Criminal Code proposes to introduce a change that provides for the establishment of responsibility for provoking bribery, commercial bribery or bribery in the procurement of goods, works, services to ensure state or municipal needs. According to this rule, the maximum penalty will be imprisonment for up to five years.

Criminal cases on crimes provided for in new articles are proposed to be attributed to the investigation of the Investigative Committee of the Russian Federation.

As noted in the explanatory note to the law-in-draft, the analysis of law enforcement indicates that there are certain gaps in the legislative regulation of liability for abuse in this sphere by persons representing the interests of state or municipal customers, as well as persons performing state or municipal contracts.

In the current forensic investigation, crimes related to the so-called kickbacks in the delivery of goods, the performance of work, the provision of services to ensure state or municipal needs, are classified according to the articles of the Criminal Code of the Russian Federation on embezzlement of others property (primarily as fraud), abuse of authority, including official, as well as commercial bribery, giving and receiving bribes. However, not all acts committed in this sphere are under the rules of criminal law. In this regard, amendments to the Criminal Code are developed.

Along with this, the Government of Russia submitted to the State Duma legislations on amendments to the Criminal Code, the Code of Criminal Procedure and the Code of Administrative Offenses. They are invited to introduce responsibility for giving deliberately false conclusions in public procurement.