Vzyatkoemkost (Russia and FSU)

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Vzyatkoemkost’ "
Location: Russia, other post-Soviet states
Russia map.png
Author: Christian Timm
Affiliation: Private University Göttingen / German Institute for International and Security Affairs

Original text by Christian Timm

Vzyatkoemkost’ expresses, in a narrow sense, the potential of a piece of legislation to create opportunities for bribery. In a broader sense, it refers to a legal framework that grants state officials discretionary power to extort bribes, obedience or other forms of benefits. The term ‘corruptogenic potential’ has been given as the standard translation of vzyatkoemkost’ into English (Universal’nii russko-angliiskii slovar’ 2011[1]).


This Russian neologism is made up of two words: vzyatka (взятка) for bribe and emkost’ (емкость) for capacity or potential. The term first appeared in 1996 in an article in a leading Russian newspaper on ways in which regulations imposed on car-drivers might be exploited as an opportunity to demand bribes (Sokolov 1996[2]). It was picked up again in another journal article, this time in 2000, which generated considerable interest and contributed significantly to the term’s popularity (Privalov 2000[3]). In 2003 and 2005, the term found its way into two Russian dictionaries (Mochenov et al. 2003[4]; Pogrebnyak 2005[5]).


Law is commonly seen as a power resource because of its ability to constrain options for action by making certain behaviour more costly than others. Vzyatkoemkost’, by contrast, relies on another characteristic of the law: the capacity to create or prevent predictability. Following the basic definition of law as ‘a prediction of […] what an official will do’ (D'Amato ‎2010), the quality of legislation determines the predictability vis-à-vis the discretion of official action. The more discretion is granted to state officials and the less predictable the law becomes, the more citizens are forced to seek predictability by informal means. Bribery is an informal answer to administrative discretion created by formal law.


The UNDP Anticorruption Assessment Guide identifies four major legal corruptogenic sources (UNDP 2013[6]). First, if a law is vaguely formulated, that allows officials flexibility both in evaluating the legal facts and in deciding what actions to take with respect to procedure, term, sequence, delegation and punishment. A second source is legal gaps within a law or with regard to other regulations that may emerge as a result of the non-existence, non-enactment or invalidation of a law. Third, conflicts of rules within one law or with other laws may also prevent rule-abiding behaviour and allow state officials to act at their own discretion. Fourth, the corruptogenic potential increases with the administrative obligations of a law, which may establish an undue burden or even make law-abiding behaviour impossible. In addition, a fifth source of vzyatkoemkost’ may arise from the volatility of law, which occurs when regulations are frequently changed. In all instances, the specific character of legislation may increase the costs of compliance or prevent law-abiding behaviour and thereby enhance the discretionary power of state officials.


Vzyatkoemkost’ may emerge unintentionally as the result of a rushed or careless legislative process; it may then be maintained once the corruptogenic potential of the law becomes apparent. Vzyatkoemkost’ may also be created deliberately by a targeted interference in the law-making process.


Vzyatkoemkost’ is not only relevant for the extraction of bribes and kickbacks (otkat) but is also constituent with the formation of a new type of political order. In the Soviet period, partly repressive legislation was applied selectively and demonstratively. The deterrence function of law served to ensure obedience within the Communist Party and the state, thereby maintaining the given political order. In the post-Soviet era, by contrast, a political order emerged that was based on the irresolvable contradiction between formal rules and informal practices. Vzyatkoemkost’ was its central institutional prerequisite. Officials were equipped with sufficient legal opportunities to collect bribes, which had to be shared with superiors. The corruption pyramids created thereby extended through all levels of the state administration.


The prevention of legal predictability helps to establish regular routines and patterns of informal interaction between state and society. Vzyatkoemkost’ may become a dominant feature to the extent that the intended content of a law is virtually eliminated and the distinction between tax, fine and bribe becomes blurred (Paneyakh 2008[7]). In such cases, a law may become a mere shell facilitating the emergence of specific informal institutions and practices. Another crucial component was that the collection of bribes was comprehensively monitored. The data gathered (kompromat, compromising material) on wrongdoings could be used against state officials at any time, thereby ensuring their loyalty to the regime. The result was de facto criminalization of wide ranges of state and society. Darden has called this form of political domination, which was paradigmatic for the first decade of the post-Soviet transition, a blackmail state (Darden 2001[8]). Vzyatkoemkost’ contributed to this fragile socio-political order in two ways: first, it turned the state into a vehicle for the extraction and distribution of rents (state capture), and second it provided a powerful tool to discipline and balance the various influential societal groups.


The character and purpose of applied legal vzyatkoemkost’ may change over time. As more capable and assertive states began to emerge in the post-Soviet space, the law’s corruptogenic potential did not become redundant but helped to facilitate ‘business capture,’ that is, the informal or de facto take-over of firms and markets by political elites. This provided politics with a powerful informal management instrument for steering private investments in areas of national interest.


Changes in the legal framework may also affect the functioning of vzyatkoemkost’. Russia for example introduced anticorruption legislation in 2009, which among other measures established a parliamentary commission to review draft laws for their corruptogenic potential. Law has become increasingly important for the efficient organisation of state administration and promotion of economic development.


Increasing juridification of state-society relations and greater reliance on legislation does not necessarily, however, lead to the development of the rule of law. In fact, greater transparency and availability of information for state officials may increase the likelihood that entrepreneurs will be targeted by state officials (Paneyakh 2008[9]). Moreover, given the prevalence of vzyatkoemkost’ at regional and secondary law level, increased stress on formal rules increases the conflict between formal rules and informal practices. In this respect, it may turn law and its corruptogenic potential from a background facilitator of informal relations into a more direct threat for political, economic and societal entrepreneurs, since wrongdoing becomes more likely to be punished.


Various taxonomies have been developed (Tihomirov 2004’[10]; Krasnov et al. 2005[11]; UNDP 2013[12]) to analyse the vzyatkoemkost’ of legal regulations. The specific extortion potential depends on various factors such as the type and density of relevant corruptogenic rules, the scale of the penalties imposed, the degree of independence (or lack of it) of the judiciary, and the financial dimension of the respective legal area.

Notes

  1. Universal’nii russko-angliiskii slovar’. 2011. Akademik.ru
  2. Sokolov, M. 1996. ‘Itogi s izdatel'skim domom Kommersant’ (Results of the Kommersant publishing company), Kommersant-weekly, 27 August
  3. Privalov, A. 2000. ‘Licence for Robbery,’ Ekspert, 28 February
  4. Mochenov, A. et al. 2003. Slovar‘ sovremennogo zhargona rossiiskikh politikov i zhurnalistov (Dictionary of Slang Used by Russian Politicians and Journalists). Moscow: Olma-Press
  5. Pogrebnyak, E. 2005. Slovar’ velikorusskogo yazyka delovogo obshenia (Dictionary of the Russian language in business communications). Moscow, http://www.uchiyaziki.ru/index.php/slovari-russkogo-jazyka/3329-slovar-velikorusskogo-jazyka-delovogo-obshchenija
  6. United Nations Development Programme (UNDP). 2013. Civic Anticorruption Expert Assessment Methodology: Short Guide. Kyiv, Ukraine
  7. Paneyakh, E.L. 2008. ‘Official against Entrepreneur: Manipulation of Law as the Basic Control Technique in the Post-Soviet Russia', Russian Political Science Yearbook. Moscow, http://www.russianpolity.ru/content10/
  8. Darden, K. 2001. ‘Blackmail as a Tool of State Domination: Ukraine under Kuchma', East European Constitutional Review, 10: 67-73
  9. Paneyakh, E.L. 2008. ‘Official against Entrepreneur: Manipulation of Law as the Basic Control Technique in the Post-Soviet Russia', Russian Political Science Yearbook. Moscow, http://www.russianpolity.ru/content10/
  10. Tihomirov, Yu. 2004 ‘Preodolevat' korrupciogennost' zakonodatel'stva’ (Overcoming legislative corruptogenetics), Pravo i ekonomika, 5 May
  11. Krasnov M., Talapina E. and Yuzhakov V. 2005. ‘Korruptsiya i zakonodatel'stvo: analiz zakona na korruptsiogennost' (Corruption and the law: An analysis of the law on corruptogenetics), Zhurnal rossijskogo prava, 2: 77-88
  12. United Nations Development Programme (UNDP). 2013. Civic Anticorruption Expert Assessment Methodology: Short Guide. Kyiv, Ukraine