The “Diagnostic assessment on the resolution of corruption cases” (published in May 2021) by The Asia Foundation’s Evaluation Team within the “Strengthening the Anti-Corruption Regime in Mongolia” project supported by the Asian Development Bank concluded that the types and amounts of penalties specified in the Criminal Code of Mongolia reduce the effectiveness of prevention and punishment for corruption crimes.
In 2017, fines accounted for 34.8% of all penal sanctions, and imprisonment was sentenced in 43.5% of cases. By 2019, the percentage of convictions resulting in fines almost doubled to 61.5%, whereas imprisonment dropped to 15.4%. (Figure 1) It is also worth noting that among corruption cases where imprisonment sentences were imposed, in 52.5% of cases the convicted criminal was released on probation after 1-3 years.
Figure 1. Status of penal sanctions, by percentage
The Criminal Code of Mongolia legalizes fines of about US$ 1,000 to US$ 140,000 or imprisonment for 6 months to 12 years for corruption crimes such as abuse of office power, giving and receiving a bribe. But, in practice, the average amount of fine for a bribe of US$ 52,000-56,000 and a bribe of up to US$ 350 is the same, which is US$ 2,100 (Figure 2). The amount of fines for abuse of power crime is also low regardless of the amount of damage caused to society.
Many citizens and researchers believe that the Corruption Perceptions Index of Mongolia is not increasing due to the low level of penal sanctions for corruption crime. Although it is clear that the level of corruption does not depend on this single factor, the type and amount of penal sanctions for corruption crime is an important legal tool to reduce corruption. We compared the penal sanctions for corruption crime of the criminal code of 33 foreign countries with the penal sanctions legalized in the Criminal Code of Mongolia.
Figure 2. Amount of bribery, a percentage in total cases, the average amount of fines, imprisonment
Only 8 of these countries legalized the amount of fines as relatively certain, similar to the Criminal Code of Mongolia. Other countries, or most countries, have established fines based on the amount of bribes that the offender received or paid, or the amount of benefit it received by abusing power, and, in some cases, the amount of fine is relevant to the minimum wage. Some countries, such as Malaysia, South Africa, the Philippines, and Vietnam have enacted fines ranging from 1 to 60 times the amount of bribes, Russia up to 70 times, and Kazakhstan up to 80 times. In the case of Mongolia, the maximum amount of fine is US$ 140,000, regardless of the amount of the bribe or the damages. In reality, in the last three years, an average fine of US$ 2,100 for bribery of US$ 52,000 to US$ 210,000. It is too far from justice or fairness.
This current practice does not match with paragraph 1, Article 1.3 of the Criminal Code principle of fairness “Criminal liability shall be consistent with the crime that natural and legal persons committed, characteristics of societal danger from the crime, scope, size, and guilt of offenders”, and is not in line with The United Nations Convention Against Corruption which states that punishment for corruption crimes should consider the severity of the corrupt act and the damage done (Article 30.1). Therefore, this is one of the main reasons why Mongolia's Corruption Perceptions Index is not increasing.
The fact that the amount of fines imposed by the courts for corruption crimes under the Criminal Code is inconsistent with the nature of the case, the amount of bribes and damages is a major challenge for Mongolia in the fight against corruption.
Therefore, one of the most urgent tasks of the Mongolian legislature to effectively combat corruption and ensure social integrity is to set the amount of fines for corruption crime are “tied with” the amount of bribes and size of damages.
