1. Introduction
1.1. Procedure
1. On 5 October 2012, the Bureau
of the Parliamentary Assembly decided to transmit the topic of “Corruption
as a threat to the rule of law” to the Committee on Legal Affairs
and Human Rights for report, to be presented to the Assembly in
the context of its June 2013 debate on “The state of human rights
in Europe”. The committee appointed me as rapporteur at its meeting
on 12 November 2012.
2. On 24 January 2013, the committee held a joint hearing with
the Committee on Rules of Procedure, Immunities and Institutional
Affairs with the participation of Mr Marin Mrčela, President of
the Group of States against Corruption (GRECO), in the framework
of the fourth evaluation round on the prevention of corruption in
respect of members of parliament, judges and prosecutors. On 19
March 2013, the Committee on Legal Affairs and Human Rights held
another hearing at its meeting in Paris, which brought together
a number of experts and representatives of international non-governmental
organisations with specialist knowledge in the fields of corruption
and the rule of law. The invitees included Ms Anne Koch, Transparency
International's Regional Director for Europe and Central Asia (Berlin),
and Ms Valentina Rigamonti, Transparency International's Senior
Regional Co-ordinator (Berlin), Ms Erica Razook, Associate Legal
Officer on Anticorruption at the Open Society Foundation (New York),
Ms Roisin Pillay, Director of the International Commission of Jurists’
Europe Programme (Geneva), and Mr Daniel Smilov, Programme Director
at the Centre for Liberal Strategies (Sofia).
1.2. Definitions
3. There is no single universally
recognised definition of corruption or the rule of law. In addition,
whilst corruption and the rule of law are commonly used phrases,
it is somewhat surprising that the European Court of Human Rights
has not developed specific definitions for these terms in its case
law. A number of other institutions and legal instruments have attempted
to define both terms.
4. Several working definitions of the concept of corruption have
been developed by various bodies of the Council of Europe.
For
the purpose of this explanatory memorandum, I will base myself on
the working definition of “corruption” used by Transparency International:
“The abuse of entrusted power for private gain.”
This
brief formula encapsulates the key aspects of other, more detailed
definitions.
5. The rule of law has been defined by The United Nations Security
Council as: “A principle of governance in which all persons, institutions
and entities, public and private, including the State itself, are
accountable to laws that are publicly promulgated, equally enforced
and independently adjudicated, and which are consistent with international
human rights norms and standards. It requires, as well, measures
to ensure adherence to the principles of supremacy of law, equality
before the law, accountability to the law, fairness in the application
of the law, separation of powers, participation in decision-making,
legal certainty, avoidance of arbitrariness and procedural and legal
transparency.”
The
working definition of the rule of law which I shall use for this explanatory
memorandum will be that of the European Commission for Democracy
through Law (Venice Commission), which defines the concept by stating
its component elements:
“It seems
that a consensus can now be found for the necessary elements of
the rule of law … These are:
(1) Legality, including a transparent, accountable and
democratic process for enacting law
(2) Legal certainty
(3) Prohibition of arbitrariness
(4) Access to justice before independent and impartial
courts, including judicial review of administrative acts
(5) Respect for human rights
(6) Non-discrimination and equality before the law.”
6. The Parliamentary Assembly
has previously tackled a terminological issue pertaining to the
notion of the rule of law in different legal systems. It has decided,
in its
Resolution 1594
(2007) on the principle of the Rule of Law, to use exclusively
the terms of “the rule of law” and its French synonym of
“La prééminence du droit” (rather
than the expression
“Etat de droit”) in
order to ensure that there is no misunderstanding as to what the concept
actually means.
1.3. Scope of this report
7. The Council of Europe’s priority
objectives are to uphold pluralist democracy, human rights and the
rule of law. It is therefore this Organisation’s duty to make every
effort to combat all forms of corruption, which endanger democracy
and the rule of law. In quite a number of countries corruption permeates
all levels of society, ranging from the (often daily) abuse of authority
by traffic police and relations with (corrupt) tax authorities,
not to mention the need to “grease the hands” of officials or persons
possessing discretionary powers to “facilitate” access to schools
or university places, public hospitals and even the provision of emergency
medical treatment. Likewise, on the local (municipal) level, approval
of construction permits, business plans etc. are often contingent
or tied to considerations based on a mix of political and “normal” corruption,
with businesses supporting, or often being closely connected to
political parties or political elites.
8. It is imperative that a well-functioning legal system must
rid itself of all forms of corruption if equity and justice are
to be maintained in a State governed by the rule of law. The importance
of this topic has recently been brought to our attention by the
Secretary General of the Council of Europe when he noted in his presentation
before the Assembly, in January 2013, that: “The first priority
should be on the fight against corruption and other forms of misuse
of power [in the Council of Europe]. Corruption is today’s biggest
threat to democracy and it undermines citizens’ trust in the rule
of law. According to the EU Commission’s data, almost three quarters
of EU citizens perceive corruption as a major problem in their country
and almost half think that the level of corruption has risen over
recent years. We find it in all countries.”
9. The preparatory work on this report has demonstrated that
corruption is present not only in State institutions, but is also
prevalent in many criminal activities such as the trafficking of
human beings, the selling of human organs, drugs smuggling, corporate
insider dealing and the production of fake goods. Although corruption
is indeed a much wider problem, the scope of this report will be
limited to corruption in the public sector, particularly in the
judicial and political arena (including executive bodies, law-enforcement
agencies and parliament) and the threat corruption poses to the
rule of law. This non-exhaustive approach is justified by both a
lack of time and resources available and the existence of previous
work carried out by various bodies of the Council of Europe – including
the Parliamentary Assembly – and other international organisations
on this topic (see below).
10. Hence, certain other important aspects of the problem, such
as the funding of political parties, are not dealt with in this
report. Cases of corruption relating to companies involved in the
extraction and/or in the trade of natural resources, such as oil
or gas, also do not neatly fit into this report, even though many
persons involved in such dealings have close connections with those
in power. Hence, proposals related to improving transparency cannot
be limited to the public sector alone, otherwise corrupt public
officials can easily continue hiding their illegally obtained assets
in opaque private legal persons.
11. This report will highlight only some instances, which concern
only a few member States of the Council of Europe. The presentation
of these examples shall not suggest that these States are the only
ones affected by corruption. On the contrary, the very fact that
such cases were disclosed at all, and publicly debated, may suggest
that these States have a functioning “immune system” ensuring that
corrupt practices are not simply covered up.
2. Context
2.1. International legal instruments
12. Several legal instruments relating
to corruption and the rule of law have been adopted at United Nations level.
The General Assembly of the United Nations has adopted a Convention
against Corruption which aims to “promote and strengthen measures
to prevent and combat corruption more efficiently and effectively”.
Specifically relating to the judiciary,
Article 11 reads as follows: “Bearing in mind the independence of
the judiciary and its crucial role in combating corruption, each
State Party shall, in accordance with the fundamental principles
of its legal system and without prejudice to judicial independence,
take measures to strengthen integrity and to prevent opportunities
for corruption among members of the judiciary.”
On
30 November 2012, the General Assembly adopted a Declaration on
the Rule of Law at the National and International Levels, in which
it declares to be “convinced of the negative impact of corruption”
and stresses “the importance of the rule of law as an essential
element in addressing and preventing corruption”.
13. There are many other international legal instruments on corruption,
some of which focus on specific elements and others on general principles,
for example in the framework of the Organisation for Economic Cooperation
and Development (OECD),
the African Union
and the
Organization of American States.
The European Union has also developed
legal instruments to combat corruption: the 1997 European Union Convention
on the fight against corruption involving officials of the European
Communities or officials of Member States of the European Union,
the 2003 Framework Decision on combating
corruption in the private sector
and the 2011 European Union Anti-corruption
reporting mechanism for periodic assessment.
2.2. The Council of Europe’s
work relating to issues of corruption
14. The Council of Europe has played
a leading role in Europe in the field. Following the recommendations of
the 19th Conference of European Ministers of Justice (Valletta,
1994), the Multidisciplinary Group on Corruption (GMC) was established
to prepare a Programme of Action against Corruption, as well as:
- “to elaborate as a matter of
priority one or more international conventions to combat corruption,
and a follow-up mechanism to implement undertakings contained in
such instruments, or any other legal instrument in this area;
- to elaborate as a matter of priority a draft European
Code of Conduct for Public Officials;
- after consultation of the appropriate Steering Committee(s)
to initiate, organise or promote research projects, training programmes
and the exchange at national and international level of practical experiences
of corruption and the fight against it;
- to implement the other parts of the Programme of Action
against Corruption, taking into account the priorities set out therein;
- to take into account the work of other international organisations
and bodies with a view to ensuring a coherent and co-ordinated approach;
- to consult the CDCJ and/or CDPC on any draft legal text
relating to corruption and take into account its/their views.”
15. As a result, the Council of Europe has adopted a number of
instruments which deal with this subject, including two flagship
instruments, namely the Criminal Law Convention on Corruption (ETS
No. 173)
and the Civil Law Convention
on Corruption (ETS No. 174).
The Criminal Law Convention on Corruption
covers a range of different forms of bribery both active and passive,
in the private and public sector. The Civil Law Convention on Corruption
covers matters which include the validity of contracts (invalidating
contracts which in effect provide for corruption), the protection
of employees who report corruption (“whistle-blowers”) and the provision
of compensation for damage suffered as a result of corruption. The
Committee of Ministers of the Council of Europe has also adopted
a recommendation on corruption associated with political funding,
to increase transparency and reduce
corruption within the political system, and a recommendation on
the conduct of public officials,
to specify the standards of integrity
required by those in public office. Last but not least, Resolution
(97) 24 on the twenty guiding principles for the fight against corruption
provides for an inventory of the best policy elements which had
been identified by the GMC in its early work.
16. In 1999, the Council of Europe established its anti-corruption
monitoring body, named Group of States against Corruption (GRECO).
This enlarged partial agreement open to non-Council of Europe States
currently involves all 47 Council of Europe member States, as well
as the United States and Belarus. GRECO’s objective is to improve
the capacity of its members to fight corruption by monitoring their
compliance with Council of Europe anti-corruption standards through
a process of mutual evaluation and peer pressure. It helps to identify deficiencies
in national anti-corruption policies, prompting the necessary legislative,
institutional and practical reforms. GRECO also provides a platform
for the sharing of best practices in the prevention and detection
of corruption.
17. GRECO works in cycles of evaluation rounds, each covering
specific themes addressed in the six instruments adopted under the
aegis of the Organisation. GRECO’s first evaluation round (2000-2002)
dealt with the independence, specialisation and means of national
bodies engaged in the prevention and fight against corruption. It
also dealt with the extent and scope of immunities of public officials
from arrest and prosecution. The second evaluation round (2003-2006)
focused on the identification, seizure and confiscation of corruption
proceeds, the prevention and detection of corruption in public administration
and the prevention of legal persons (and corporations) from being
used as shields for corruption. The third evaluation round (2007-2011)
addressed a) the incriminations provided for in the Criminal Law
Convention on Corruption and b) the transparency of party funding.
The fourth evaluation round which was launched in 2012 deals with
the prevention of corruption in the judiciary (judges and prosecutors)
and in parliaments, and deals inter alia with the
rules of conduct aimed at ensuring integrity, declaration of assets
and interests, and the management of conflicts of interest.
18. All members participate in, and submit themselves without
restriction to the mutual evaluation and compliance procedures.
In accordance with the principle of equal treatment, all members
are systematically evaluated against the same standards, leading
to recommendations which are aimed at furthering the necessary legislative,
institutional and practical reforms and require action within 18
months. Moreover, a compliance procedure is designed to specifically
assess the measures taken by its members to implement the recommendations
for improvement which are contained in the evaluation reports. In
cases where not all recommendations have been complied with, GRECO
will re-examine outstanding recommendations within another 18 months.
Compliance reports adopted by GRECO also contain an overall conclusion,
the purpose of which is to decide whether to terminate the compliance
procedure in respect of a particular member or to apply the special
procedure, based on a graduated approach, in case the response to
GRECO’s recommendations has been found to be globally unsatisfactory.
19. GRECO also produces thematic and horizontal reports to assist
countries in their reforms (by providing an overview of the experience
of other countries) and to provide a global picture of progress
or of problematic areas.
20. The Council of Europe’s Committee of Experts on the Evaluation
of Anti-Money Laundering Measures and the Financing of Terrorism
– MONEYVAL – is a more specific mechanism, established to ensure
that participating States have in place effective systems to counter
money laundering and terrorist financing, and comply with the relevant
international standards, in particular with the 40 Recommendations
of the Financial Action Task Force (FATF)
and its Special Recommendations on Terrorist Financing.
While
the FATF Standards are not anti-corruption standards, it is recognised
in MONEYVAL evaluations that one of the underpinning features of
a working system of anti-money laundering and combating the financing
of terrorism (AML/CFT) is the extent to which corruption is being
addressed. Thus MONEYVAL reports describe briefly measures being
taken to combat corruption, as corruption is a factor which can
impact negatively on the effectiveness of implementation of AML/CFT
standards.
21. MONEYVAL currently comprises 35 States and jurisdictions,
which are subject to its evaluation processes and procedures, including
evaluation reports and follow-up of the progress in the frame of
a system of “Compliance Enhancing Procedures” – a graduated series
of steps to exert further peer pressure on States to implement its
recommendations. It is presently undertaking a fourth round of follow
up visits re-assessing some important FATF Recommendations covered
in the third round and also those FATF Recommendations which received
low ratings in the third round of evaluations.
In the financial area, one significant
standard which MONEYVAL evaluates and which assists in the fight
against corruption is the effective implementation of the FATF standard
concerning politically exposed persons (PEPs). This standard covers
the mandatory safeguards required to mitigate the risks which may
be faced by financial institutions and others when handling accounts
of foreign PEPs in a jurisdiction.
MONEYVAL
also produces research documents on ways in which money can be laundered
or used to finance terrorism, and horizontal reviews of the evaluations
which incorporate the information gathered from the evaluations
of member States and illustrate where there are specific and generic
problems with implementation of AML/CFT standards.
22. The Committee of Ministers has done a substantial amount of
work on corruption. As already explained above, in 1997 it adopted
“The Twenty Guiding Principles for the Fight Against Corruption”.
Guiding Principle No. 3 is intended
“to ensure that those in charge of the prevention, investigation,
prosecution and adjudication of corruption offences enjoy the independence
and autonomy appropriate to their functions, are free from improper
influence and have effective means for gathering evidence, protecting
the persons who help the authorities in combating corruption and
preserving the confidentiality of investigations”. In addition,
Guiding Principle No. 9 aims “to ensure that the organisation, functioning
and decision making process of public administrations take into
account the need to combat corruption, in particular by ensuring
as much transparency as is consistent with the need to achieve effectiveness”.
23. The Assembly and its Committee on Legal Affairs and Human
Rights have also dealt with many matters relating to corruption.
Recent examples include reports on alleged politically motivated
abuses of the criminal justice system,
the need to eradicate impunity,
the protection of “whistle-blowers”,
the role of the public prosecutor
and judicial corruption.
In the latter document, it was highlighted
that judicial corruption was “deeply embedded’ in many Council of
Europe member States. In its
Recommendation
1908 (2010) on lobbying in a democratic society (European code of
good conduct on lobbying), the Assembly recommended that the Committee
of Ministers elaborate a code of good conduct on lobbying based
on the following principles:
i. Lobbying
should be very clearly defined, differentiating between lobbying
as a professionally compensated activity and the activities of civil
society organisations, not forgetting self-regulating entities in
different economic sectors.
ii. Transparency in the field of lobbying should be enhanced.
iii. Rules applicable to politicians, civil servants, members
of pressure groups and businesses should be laid down, including
the principle of potential conflicts of interest and the period
of time after leaving office during which carrying out lobbying
activities should be banned.
iv. Entities involved in lobbying activities should be registered.
v. Prior consultations should be held with lobbying organisations
on any draft legislation in this field.
vi. Well-defined, transparent, honest lobbying should be encouraged
so as to improve the public image of persons involved in these activities.
Although
the Committee of Ministers noted, in its reply, that both GRECO
and the Conference of International Non-governmental Organisations
of the Council of Europe (INGOs) supported the idea of drafting
such a code,
it has not been written to date.
In reference to the monitoring procedure as set up by the Parliamentary Assembly,
the Monitoring Committee has, over the past few years, indicated
problems relating to malpractice and corruption in a number of States.
It should be noted that in January
2012 our committee created a new Sub-Committee on the Rule of Law.
3. A multifaceted phenomenon:
overview of some recent emblematic corruption cases in the public sector
24. Corruption affects all member
States of the Council of Europe. Not one of them is absolutely free
from corruption. Nevertheless, it cannot be denied that some are
more institutionally corrupt than others. The 2012 year-end Transparency
International Corruption Perceptions Index (CPI), which measures
the perceived levels of corruption of the public sector on the basis
of expert opinions, places five member States of the Council of Europe
beyond the hundredth place out of 174 States listed: Armenia (105);
Albania (113); Russia (133); Azerbaijan (139) and Ukraine (144).
Other
member States of the Council of Europe were ranked highly, such as
Denmark and Finland, which were considered to be “very clean” and
ranked joint 1st, and Sweden, which was ranked 4th. Corruption also
affects all branches of power. The following recent cases illustrate
this phenomenon of corruption in the public sector.
3.1. Corruption in the executive
and law-enforcement bodies
25. Several cases of alleged corruption
involve the highest level of the executive. One of the most recent ones
concerns Mr Jérôme Cahuzac, until recently France’s Budget Minister,
who admitted, a few days after resigning from his post, to holding
a secret bank account abroad. The funds have allegedly been transferred by
pharmaceutical companies at the time when Mr Cahuzac served as an
advisor to the Minister of Health. Besides this case, many examples
can be mentioned, such as the current criminal investigation into
a former Finance Minister of Greece, who allegedly removed some
of his family members from the so-called “Lagarde list” (exposing
alleged tax evaders from Greece). The pending Woerth case in France
should also be considered. In 2012, Eric Woerth, another former
French Budget Minister and treasurer of the Union for a Popular
Movement Party, was charged with corruption-related offences. The
charges concern the alleged influence peddling and alleged illegal
election campaign donations by L'Oreal heiress Liliane Bettencourt.
The influence peddling charges relate to allegations that Mr Woerth
secured the Legion of Honour, France's highest award, for Bettencourt's
financial manager, Patrice de Maistre, after he secured a job for
Mr Woerth's wife to help manage the heiress's fortune. In Slovenia,
both the Prime Minister, Janez Jansa, and the leader of the main
opposition party, Zoran Jankovic, have come under criticism from
the country’s Commission for the Prevention of Corruption for failing
to declare substantial assets. Since the publication of these reports, pressure
has been brought to bear on the Prime Minister to resign.
26. Corruption in the executive branch may also involve the lower
level of the executive and affect each of its branches, from the
head of State to the traffic officer, from the police to the cadastre.
The Commissioner for Human Rights of the Council of Europe has noted
its significant presence in the police and in the prison system: “Policemen
are badly paid in several countries and some of them try to add
to their income by asking for bribes. The result is that people
without money are treated less favourably than others. I have also
met prisoners who have had no family visits because their relatives
could not pay the unofficial ‘fee’.”
An
example of police corruption includes the conviction, in January
2013, of the Ukrainian former Police Chief, Olexiy Pukach, who confessed
to killing a journalist on the alleged instructions of the late
Interior Minister, Yuri Kravchenko. Whether the chain of command
really ended with the late minister, who had conveniently committed
suicide (shooting himself in the head twice, from two different
angles) remains unknown. There have been strong doubts cast over
the suicide of the late minister, in particular the method of suicide,
which was supposed to have occurred by two bullet shots to the temple
of the head, which medics have noted as being impossible to self-inflict.
These concerns were noted in the report by Ms Leutheusser-Schnarrenberger.
27. Another form of corruption in law-enforcement bodies consists
of the use of their resources for the benefit of a particular interest.
In the run-up to the parliamentary elections in 2011, Transparency
International (TI) Russia
found the political campaign rife
with examples of such abuses, in particular the apparent use of government
infrastructure and civil servants to boost the ruling party’s candidates,
a clear infringement of electoral laws. The cases of voter intimidation,
some of which have been taken to court by TI Russia, have not resulted
in appropriate punishment and all the public officials engaged in
these cases have kept their jobs, despite evidence of violating
election laws.
3.2. Corruption in the judiciary
28. There have also been a number
of recent incidents of judicial corruption. The
Volkov v. Ukraine case before the European Court of
Human Rights, for example, concerned a judge of the Ukrainian Supreme
Court who had been removed from office by a method which was held
to be in violation of the European Convention on Human Rights, which
concerned a breach of the right to a fair trial. The Court, in its
judgment pinpointing the personal responsibility of certain officials,
instructed Ukraine to reinstate the applicant in his high judicial office.
According to the National Integrity System study, carried out by
Transparency International in 2011 in Ukraine, “independence of
the judiciary is not sufficiently guaranteed, either in law or in
practice. The judicial branch is not able to function effectively
due to the lack of accountability mechanisms and judicial integrity
is undermined by absence of provisions on conflict of interests
and financial disclosure”.
The International Commission
of Jurists (ICJ) made a similar observation about the situation
in the Russia Federation, where “threats to judicial independence
are reported to be particularly acute in cases where powerful political
or economic elements have an interest in the outcome of a case”.
An Assembly rapporteur
was told some years ago in Moscow that in order to successfully
fight corruption among judges, it was inevitable that their independence
had to be limited.
In
Bulgaria, senior political figures such as the Prime Minister, Boiko
Borisov, were so convinced that certain members of the judiciary
were corrupt that they publicly denounced their judicial ability
and proclaimed them to be unfit for office. Such political interventions
of course also raise issues of judicial independence. In Turkey,
there is the example of Erkan Canak, a former High Criminal Court
judge, who shall be tried for allegedly accepting a bribe.
29. Corruption of the judiciary as well as undue influence on
the judiciary, often leads to injustice. According to Transparency
International, “in Bulgaria, which ranks on the very bottom of the
CPI amongst the EU member States,
several
individuals accused of involvement with organised crime groups have
consistently been acquitted. Recently, two businessmen, commonly
referred to as the Galev brothers, allegedly engaged in fraud, drug
trafficking and other crimes, were acquitted, due to what was believed
to be undue influence on the judiciary, despite the presence of
substantial proof against them”. Corruption in the judiciary can
lead both to the acquittal of dangerous criminals and to the prosecution
and conviction of perfectly innocent people, for example when a
business competitor pays law enforcement officials to fabricate
a case against this person, or when law-enforcement officials fabricate
cases in order to retaliate against business persons who refuse
to “share” profits with them.
30. In many instances, judicial corruption also encompasses individuals
connected to the judicial process, such as prison wardens and the
police. A number of cases in Azerbaijan, investigated by our committee colleague,
Mr Christoph Strässer, rapporteur on follow-up to the issue of political
prisoners in Azerbaijan, combine both judicial and political corruption
issues: for example, a journalist, Mr Faramaz Novruzoglu, was given
a long prison sentence for “inciting mass disorders” after publishing
articles criticising corrupt practices of persons linked to the
government.
31. The undeniable presence of corrupt practices – also among
judges and prosecutors – must not, in my view, be used as an excuse
to limit the independence of the courts. Experience shows that once
a mechanism is put into place in order to “control” the actual judicial
activities of judges (as opposed to their administrative circumstances),
that mechanism will be used and abused for transmitting all kinds
of undue influence, including for political and, again, corrupt
purposes. The best safeguard against judicial corruption is the
development over time of a proud, independent “esprit de corps”
among judges and prosecutors, who must enjoy proper recognition
for their important task, including in the form of decent wages
and a system of judicial self-administration by elected peers.
3.3. Corruption in parliaments
32. In the United Kingdom, the
scandal concerning expenses of parliamentarians, which was uncovered
by the press, is another example of corrupt practices in politics.
The illicit and corrupt practices have resulted in a series of resignations,
criminal charges and prison terms, including politicians from both
major political parties and in both the House of Commons and the
House of Lords.
33. In the European Parliament, journalists posing as lobbyists
reportedly offered considerable amounts of cash for the introduction
of amendments to legislative texts concerning the supervision of
financial markets. Three MEPs took the bait. One, an Austrian, has
in the meantime been sentenced to a long prison term. Another, a
Slovenian, was forced to resign from his seat in the European Parliament.
A third, a former Foreign Minister of Romania, has yet to face any
consequences, but he denies any wrongdoing.
34. Recent examples of corruption in parliaments also include
the Azerbaijani so-called “Gulargate”. On 25 September 2012, a video
posted on YouTube appeared to show a ruling party MP, Ms Gular Ahmedova, requesting
a bribe of US$1.3 million in exchange for securing a seat in parliament
for an academic named Elshad Abdullayev. The head of the presidential
administration is alleged to be involved in the scandal. Ms Ahmedova
resigned from parliament and was expelled from the party. New extracts
of the video have been released regularly on the Internet by Elshad
Abdullayev, widening the scandal.
35. The link between lobbying and corruption is another area which
may merit attention. I agree with the analysis of Transparency International,
according to which, when undertaken with integrity and transparency, lobbying
is a legitimate avenue for interest groups to be involved in the
deliberative process of law making. However, the research of this
NGO found that out of 25 European countries, only six had regulated
lobbying to any degree. And those that have regulations often lack
enforcement mechanisms and sanctions for non-compliance or include
inadequate measures, requiring only the voluntary registration of
lobbyists, for example. Hungary, which is currently undergoing a
rapid reversal of earlier positive political developments, is an example.
It had regulated lobbying through legislation from 2006 to 2010,
but this was rolled back in 2011. The lack of transparency in lobbying
encourages corruption and undermines citizens’ trust in the parliament,
as demonstrates a poll on the European Union which states that 80%
of those surveyed believe there should be mandatory regulation of
lobbying to ensure a balanced participation of different interests
in decision-making.
36. The Council of Europe and the Parliamentary Assembly itself
have not been spared allegations of inappropriate lobbying. The
Berlin-based NGO “European Stability Initiative”, in a series of
reports referring to Azerbaijani “caviar diplomacy”
alleges that the success of the
Azerbaijani delegation in averting criticism of the human rights
situation and in particular on the issue of alleged political prisoners
is somehow linked to the lavish invitations extended to parliamentarians
and gifts (
inter alia of caviar)
allegedly offered to parliamentarians and their staff. I believe
many of us were quite aware of the unusual intensity of lobbying surrounding
the two reports by our colleague Christoph Strässer. I refrain from
making any further comments here, but I do believe that we would
have been exposing ourselves to criticism if we had simply ignored
these recent events.
4. Consequences of corruption
for the rule of law
37. Corruption jeopardises the
good functioning of public institutions and diverts public action
from its purpose, which is to satisfy the public interest. As has
been highlighted by the Open Society Justice Initiative at the Paris
hearing, “when left unaddressed, large-scale money laundering and
related corrupt acts through pristine appearing financial instruments
and institutions undermine the rule of law and respect for human
rights, by allowing certain wealthy and politically powerful elites
to take and self-deal amongst themselves – to the detriment of the
people – at will and often with impunity”. The preamble of the Criminal
Law Convention on Corruption states that “corruption threatens the
rule of law, democracy and human rights, undermines good governance,
fairness and social justice, distorts competition, hinders economic
development and endangers the stability of democratic institutions
and the moral foundations of society”. With regard to the rule of
law, in particular, it is very clear that the threats that corruption
poses to it are numerous. Indeed, corruption affects every single
component element of the rule of law as it has been defined by the
Venice Commission.
38. Corruption disrupts the legislative process by using the lack
or the absence of regulation of lobbying activities, of code of
conduct and ethics for legislators and of clear rules to prevent
conflicts of interest and leads to the adoption of standards which
meet the particular interests of the corrupters, instead of meeting
the general interest. The possibility that the law be amended or
not be enacted to suit the requirements of those who can afford
to corrupt is inconsistent with the principle of legality, which
requires a transparent, accountable and democratic process for enacting
laws, as well as with legal certainty, which implies predictability.
39. Corruption, which allows avoiding law enforcement or requires
paying for it, does not only abolish legal certainty, which also
covers the enforcement of the law, but also introduces arbitrariness,
as the decision- making process is no longer based on the uniform
application of the law. Moreover, it causes a breach of equality
before the law as well as discrimination against those who cannot
afford to corrupt, or to defend against corrupt practices instigated
by others.
40. According to the Venice Commission, there is no rule of law
without access to justice before independent and impartial courts,
including judicial review of administrative acts. It is obvious
that corruption impedes access to justice in several ways. It may
prevent the filing of a complaint or an application to the courts
without paying an amount of money to the official in charge of registering
the application. It may also prevent success before a judge corrupted
by the opponent. Discrimination and denial of access to justice
are, as such, violations of the European Convention on Human Rights.
In addition, they prevent courts
from punishing other violations of human rights whose victims cannot
afford to pay bribes in order to obtain justice. Therefore, corruption
erodes the protection of human rights in general, as evidenced by
Thomas Hammarberg, former Commissioner for Human Rights of the Council
of Europe, who “visited all 47 member States of the Council of Europe
– and repeatedly witnessed the devastating effect that corruption
has on human rights”.
41. Moreover, corruption has a snowball effect: it undermines
the rule of law and the lack of rule of law is a fertile ground
for corruption. As Ms Anne Koch, representative of Transparency
International, stated, “With a collapse in the rule of law, the
social contract ceases to exist, and the ordinary members of a society
view all of the institutions that govern them as agents of a corrupt
system, that they themselves must deal with in a corrupt way. So
the poison of corruption and illegality becomes endemic to the system”.
42. In addition to its effects on the components of the rule of
law, corruption undermines citizens’ trust in the institutions.
This is the case for the judiciary, as highlighted by the International
Commission of Jurists, according to which “a judge that can be bribed
or influenced by one party or outside interest cannot be relied on
to be vigilant against torture of a detainee, or to make the best
interests of a child the primary consideration in a custody dispute,
or to provide an appropriate remedy for an act of racial discrimination”.
This is also the case for both the executive and the parliament.
Transparency International considers indeed that “corruption is
now, increasingly, being laid bare, with a commensurate loss of
trust in the political system and in politicians”. Although the
citizens' perceptions of corruption are sometimes exaggerated, the
crisis of confidence in institutions caused by corruption is huge
in Europe
and seriously undermines
these institutions. The representative of Transparency International,
Ms Koch, has, for example, noted that the Government of Bulgaria
recently resigned after a series of rapidly escalating street protests
by people tired of rising electricity prices, tougher austerity
measures and a prevailing sense of corruption and impunity among
the elite.
43. Former Commissioner for Human Rights Mr Hammarberg has rightly
pointed out another aspect of corruption, namely its very high cost
for the general public: “Huge amounts of money are spent on bribes
and lost in unpaid taxes, thereby also reducing the capacity of
a State to invest in the infrastructures and policies necessary
to ensure decent living conditions and equal opportunities for its
population.”
In a time of economic crisis, this
cost is even more difficult to bear as it is clear that corruption
exacerbates the crisis. As highlighted by Transparency International,
“a number of countries in Southern Europe, particularly those currently
at the sharp end of the financial crisis (Greece, Italy, Portugal,
Spain and Cyprus), are showing serious deficits in public accountability
and deeply rooted problems of inefficiency and malpractice which
are neither sufficiently regulated nor sanctioned”.
5. Means to fight corruption
44. Corruption is an old and vast
phenomenon, but not an inevitable one. I am strongly convinced that
it is vital to fight against it because, as highlighted by Transparency
International, “when institutions fail to adopt and implement appropriate
regulations and a culture of integrity, corruption is likely to
thrive, thereby undermining equitable growth, social cohesion and
the rule of law”. Ways and means to eradicate this phenomenon exist
and I would like to draw your attention to those which seem to be
particularly promising.
45. An obvious way to fight against corruption is to implement
the recommendations of GRECO and MONEYVAL. Many countries have been
seen to be lacking in their evaluation reports and subsequent compliance
reports for a variety of different reasons. In the case of France,
for instance, which ratified the Criminal Law Convention on Corruption
in 2008, GRECO pointed out in its conclusion in the Third Round Evaluation
Report that “France has severely restricted its jurisdiction and
its ability to prosecute cases with an international dimension,
which given the country's importance in the international economy
and the scale of many of its companies is very regrettable”.
Insofar as compliance procedures
are concerned, GRECO considered, for instance in the case of the
Russian Federation, that the country has only implemented satisfactorily
or dealt with in a satisfactory manner just over a third of the
26 recommendations contained in the Joint First and Second Round
Evaluation Report
(the third evaluation report not
having yet been compiled). Recently, GRECO strongly voiced its disapproval
at Ukraine’s reluctance to implement its recommendations: “The total
number of recommendations that have been complied with – just under
half of the recommendations issued – is not impressive and it is
noticeable that several fundamental issues, such as the independence
of the judiciary, the existence of judicial and administrative processes
in parallel, the independence of the auditing of local authorities,
public service reform, the administrative decision-making process
and the liability of legal persons in respect of corruption offences,
to mention some of the areas highlighted by GRECO in the Evaluation
report, still need considerable attention.”
Much work still needs
to be done in this respect, but the case of Ukraine, in which anti-corruption
measures have been used for political purposes, also shows that these
issues ought to be treated carefully and with circumspection. The
“abuse of office” charges brought against the former Prime Minister
of Ukraine, Yulia Tymoshenko, is indeed an example to show that
tough criminal law provisions intended to fight corruption can also
be abused for the politically motivated, selective prosecution of
leading members of the opposition.
46. To fight against impunity – too often enjoyed by the perpetrators
of corruption – the incrimination of all acts of corrupt (including
active and passive corruption) is essential. GRECO’s third evaluation
round has underlined the importance of clear and precise incrimination.
According to the thematic review of this third evaluation round,
GRECO Round III evaluation reports disclose a generally good standard
of compliance with the obligations laid down in the Criminal Law
Convention on Corruption and its additional protocol. However, “one
or two laws attract criticism for being anachronistic and therefore
ill-equipped to deal with bribery in the 21st century. The reports
for the laws of Greece and the United Kingdom provide good examples
in this regard”.
Moreover,
at the time of the adoption of their evaluation reports, two member
States had signed but not ratified the Criminal law Convention on
Corruption (Germany and Spain), ten member States had neither signed
nor ratified its additional protocol (Andorra, Azerbaijan, Bosnia
and Herzegovina, Czech Republic, Estonia, Finland, Georgia, Lithuania,
Poland and Spain) and six member States had signed but not ratified
the same protocol (Germany, Hungary, Iceland, Malta, Portugal and
Turkey). It is important that these two legal instruments are quickly
ratified by all member States and their provisions effectively implemented.
As regards incrimination, particular attention should also be paid
to the clear definition of offences, including the requirement of
the existence of a personal advantage.
47. The key to fighting corruption is transparency. The more information
is made publicly available, the more effectively can NGOs and the
media “name and shame” corrupt practices and thereby contribute
to bringing them to an end. As public sector corruption tends to
“leak” into the private sector, for example by corrupt officials
hiding their assets in legal persons run by “men of straw” on their
behalf, or by stealing from State-owned or partially State-owned
enterprises, transparency requirements cannot be limited to the
public sector alone. A good way to tackle corruption in the public
sector is to ensure that all assets are declared at the beginning
and at the end of an official’s public mandate. Any unusual increase
in wealth should give rise to a duty to explain. Recent developments
in France show that it must be made clear from the outset that there
is nothing intrinsically wrong with officials having substantial
assets. But they must demonstrably result from legal activities,
and be properly declared for tax purposes. In line with the law
in some jurisdictions dealing with the fight against organised crime,
I would favour the introduction of laws allowing for the freezing
and even confiscation of any assets whose owners cannot establish
the legality of the funds used for their acquisition. Corruption
is all about money, all about greed. If we succeed in actually taking
away the fruits of corruption, the practice will diminish very quickly.
48. Judicial reform aiming at reinforcing the independence of
the judiciary is also key element in combating corruption. Transparency
International has found that the vast majority of European countries
suffer from weak enforcement of court decisions. Also, there often
exists a lack of transparency, the judiciary is not fully independent,
and the executive branch can exert strong control over judicial
appointments. According to this NGO, “even in those member States
where governments have been successful in tackling corruption, the judiciary
has remained a problem. For example, in Georgia, despite impactful
anti-corruption reforms, insufficient independence of the judiciary
has been a key factor weakening the potential of good governance in
that country. Despite having eradicated bribery in courts, the judiciary
has suffered from undue influence exerted by the Prosecutor’s Office
and the executive authority during the adjudication of criminal
cases, as well as the cases where the political leadership’s interests
have been at stake. The judiciary’s inadequate level of independence
has also undermined its ability to exercise oversight vis-à-vis
the executive branch”.
Recent reforms in Hungary to restrict
the independence of the judiciary are also particularly disturbing
and could hamper the fight against corruption.
49. Moreover, GRECO has stated that corruption is often made possible
by the lack of independence and means available to bodies engaged
in the prevention and fight against corruption and recommended that
this trend be reversed.
Consequently, institutional
reform should ensure independence of bodies engaged in the prevention
and the fight against corruption and the means of these bodies should
be reinforced.
50. Several experts invited to the Paris hearing underlined the
fact that corruption in the public sector also has a cultural dimension.
The International Commission of Jurists considers that “perhaps
the key safeguard against judicial corruption, as well as the most
ephemeral and the most difficult to establish, is a cadre of judges with
a strong sense of judicial honour and the responsibility that comes
with judicial power”. Such an ethical culture is also key for elected
officials, parliamentarians and civil servants. It is based on education
and continuing training and must be supported by a clear political
commitment.
51. The protection of whistle-blowers, to which this Assembly
has recently dedicated a separate report,
is an
indispensable complement to judicial independence. Transparency
International has highlighted its crucial importance by quoting
the example of a whistle-blower “who passed on details of MPs' expenses
to a British newspaper which led to a major scandal in the UK concerning
the widespread misuse of allowances and expenses of Members of the
Parliament and eventually resulted in resignations and sentences
of imprisonment”. According to assessments performed by this NGO,
there is still much to do in this area: “Even where laws exist,
… whistle-blowers do not have sufficient protection from reprisals
in practice – aside from Norway and the UK where safeguards are
more robust. In a number of countries in Europe, particularly in Eastern
Europe and the Balkans, whistle-blowers suffer from stigma and may
even risk or lose their lives (as did Sergei Magnitsky in Russia).”
Sergei Magnitsky had blown the whistle on large-scale systematic
theft from the Russian State by corrupt Russian officials. He was
arrested and died in prison, which caused both national and international
outrage. A motion for a resolution has tabled passed on the topic
of refusing impunity for his alleged killers
and in December 2012, our committee
colleague, Mr Andreas Gross (Switzerland, SOC) was appointed as
rapporteur to investigate this case and the alleged high-level cover-up
more closely. The role of civil society actors and investigative
journalism must also be stressed in this connection. I can provide
three examples of such initiatives: in the Russian Federation, the
famous blogger and leader of the opposition movement, Navalniy,
investigates corruption in the context of public procurement contracts;
in Ukraine, television programmes
and online media
investigate and bring to light
political skulduggery and embezzlement of public/State funds; and
similar investigations into “regional” corruption scandals have
been publicised in the Baltic States.
52. The proposed reforms should lead to end impunity for perpetrators
of corruption and so break the “vicious circle” described by Ms
Koch, representative of Transparency International: “When it is
successfully practised, it continues to be used, thus undermining
the rule of law.”
53. Another important way to fight against corruption consists
in regulating lobbying activities through mandatory lobbying registers
and code of conducts for lobbyists and those who meet lobbyists.
Such codes of conduct are an important part of the anti-corruption
framework for parliaments, as they impose binding and enforceable
rules for what is clearly legal and acceptable – and what is not
– for politicians, officials and their interlocutors. As underlined
by Transparency International, the adoption of enforceable codes
of conduct demonstrates a serious commitment to integrity by parliamentarians
and helps to build trust by citizens in the political process. The
assessment of the 25 countries by the above-cited NGO revealing
that only eight have codes of conduct in place at present demonstrates
that there is still much work to be done in this area. On several
occasions GRECO has deplored non-compliance with its recommendations
in this area, for example concerning Hungary, which had not installed
any clear guidance in relation to civil servants seeking or receiving gifts
or
indeed any code of conduct for the civil service.
Lobbying regulations should be implemented
taking into account the conclusions of the opinion of the Venice
Commission on the role of extra-institutional actors in the democratic
system,
as
well as the guiding principles for the elaboration of codes of good
conduct set out in
Recommendation
1908 (2010).
54. At the parliamentary level, other measures may be considered.
In a speech held in March 2013 before the Congress of Local and
Regional Authorities of the Council of Europe, the president of
the NGO Anticor stressed the need to strengthen the rights of the
parliamentary opposition and proposed, for example, to assign by
law the chairmanship of the tenders committee to a member of the
opposition.
55. The recent scandal triggered by the aforementioned Cahuzac
case revived in France and in Europe the debate on the declaration
of assets of elected officials. The announced reform of the rules
governing the establishment and control of these declarations
has received mixed reactions in
the French political arena. Transparency International, as well
as other NGOs such as Anticor, believes that a robust asset declarations system
is an important safeguard of integrity in the public sector as it
prevents and reveals conflict of interest among members of parliament
and avoids illicit enrichment among public officials. According
to Transparency International, “even though all European countries
have some kind of asset, interest and income declaration system
in place, there is considerable variation in their quality and comprehensiveness
– 11 of the 25 countries do not cover all relevant aspects of MPs’
interests and/or disclose only partial information. Worrying examples include
Slovenia and France, where MPs’ declarations are not made available
for public scrutiny at all, effectively eliminating their value
as a public accountability mechanism”.
56. The fight against corruption cannot be effective without a
fight against another phenomenon that facilitates corruption, namely
money laundering. Indeed, as has been highlighted by the Open Society
Justice Initiative during the Paris hearing, “while the Transparency
International Corruption Perceptions Index names several Council
of Europe member States amongst its ‘cleanest’, some of these States
– like the United Kingdom and Switzerland – are laundering the proceeds
of criminal and corrupt acts on a vast scale”. The abolition of
bank secrecy, which is obviously used as a vehicle for corruption
proceeds’ laundering, as well as the establishment of a strict disclosure
regime are efficient ways to fight against corruption. The fight
against money laundering is an area which most requires international
co-operation. The “money trail” as such, in the case of electronic
transfers of funds in fact used for all “serious” sums of black
money, cannot be “lost”, or erased. It must simply be followed,
across the borders, following all the meanders and subterfuges imagined by
the perpetrators, until the final beneficiary. This is not rocket
science; it just requires the political will in all countries touched
by the “money trail” to actually undertake this work seriously.
57. All these reforms must meet an overall strategy. The experts
invited to the Paris hearing emphasised the importance of a comprehensive
approach to corruption, including the legal framework and the practice
and performance of the institutions. Mr Daniel Smilov drew the attention
of the committee to the fact that several eastern European countries
have systematically demonstrated very high levels of perception
of corruption, despite the fact that this problem had topped the
governmental agenda. Mr Smilov wondered if that means that anti-corruption
efforts have been insufficient, or if that means that the strategy
which has been pursued – focused essentially on institutional reforms
– has been wrongly perceived and even counterproductive. The second
hypothesis leads to concern about institutional practices and professional
ethics.
6. Conclusions
and proposals
58. The subject of “Corruption
as a threat to the rule of law” is obviously complex.
Unfortunately, this report cannot
propose all possible solutions. Nevertheless, a number of priority
proposals can be made to eradicate this scourge.
59. The Council of Europe has developed useful legal instruments
and mechanisms to prevent and fight corruption. Member States of
the Council of Europe should be encouraged to ratify the relevant
conventions of the Council of Europe, as well as to implement the
recommendations of GRECO and MONEYVAL. Parliaments should also contribute
to the implementation of these recommendations by setting up specific
parliamentary scrutiny procedures. At the Assembly’s level, in addition
to representation in the meetings of GRECO
and MONEYVAL,
the Monitoring Committee should
pay particular attention to the implementation of these legal instruments.
60. I also suggest promoting overall strategies against corruption,
including the following core elements:
i. Reinforcement of the independence and effectiveness of
the judiciary. This includes, in particular, measures to enhance
the quality, education and status of the judicial profession. Transparent appointment,
promotion and dismissal procedures, as well as appropriate disciplinary
rules for judges, that would be applied by bodies free from political
interference and undue influence, should be introduced.
ii. Reinforcement of transparency: the citizens’ desire for
greater transparency is legitimate. To restore the confidence in
public institutions, we need to put in place sound rules for the
declaration of assets, income and interests by members of parliament,
of government and of senior officials and judges, as well as to set
up independent control agencies with sufficient means to sanction
non-compliance with these rules. Transparency also include the regulation
of lobbying activities through the elaboration of mandatory and public
lobbying and codes of conduct for lobbyists and those who meet them.
Moreover, the institutions should publish their financial information
on their website and open public data should be encouraged.
iii. Protection of media freedom and independence: media are
essential for the fight against corruption and should be free from
governmental pressure in order to be able to track and reveal corruption
cases.
iv. Empowerment of the civil society, which has an important
role to play in mobilising groups and media on governance and democracy
issues to track and denounce corruption.
61. These strategies should be implemented flexibly, taking into
account the specificity of the situation in each country. Corruption
problems should be dealt with together with issues such as democracy, constitutionalism
and the separation of powers, as proposed by Mr Smilov at the hearing.
In a non-competitive political environment with weak separation
of powers, anti-corruption measures should always be considered as
a part of a larger reform package ensuring greater separation of
powers and more intense political competition. In a highly competitive,
democratic political environment, anti-corruption measures should
be considered together with measures augmenting “checks and balances”
through the separation of powers, and reducing self-entrenchment
efforts by representatives of the majority of the day. Anti-corruption
efforts should in any case be disentangled from party politics in
order to avoid the suspicion that anti-corruption is just a vote-mobilisation
strategy.
62. Also, the Assembly has to pay special attention to the effective
implementation of its own code of conduct. Likewise, the Council
of Europe should be vigilant in ensuring that funds secured for
the implementation of its programmes are properly used and are not
diverted by corrupt officials.
63. Finally, I suggest that the Committee of Ministers become
more engaged in the fight against the scourge of corruption, on
the one hand by ensuring that this subject is included in the specific
curricula of the training programmes implemented by the Council
of Europe bodies and, secondly, by setting up a working group to develop
guidelines on codes of conduct and ethics aimed at public officials
and judges.