HearingCRIMspecialCommitteeEuropeanParliamentWRau18092012 European Parliament - Special Committee on Organised Crime, Corruption and Money Laundering (CRIM) Hearing - First session on corruption, Brussels, 18 September 2012 Increasing transparency - The fight against corruption from the perspective of the Council of Europe Wolfgang Rau, Executive Secretary, GRECO (Group of States Against Corruption) It is a great honour for me to present this important committee with some thoughts concerning the role of transparency in the fight against corruption from the perspective of the Council of Europe s Group of States against Corruption (GRECO) Before I do, let me say a few words about GRECO. GRECO was set up in 1999 to monitor the implementation of the six anticorruption instruments of the Council of Europe, including the Criminal Law Convention on Corruption and the ground-breaking 2003 Recommendation on common rules against corruption in the funding of political parties and electoral campaigns. Today, the Group comprises 49 Member States (including all member States of the European Union, and the United States of America). GRECO s mission is to monitor the Council of Europe s anti-corruption instruments by a process of peer evaluations. These evaluations comprise in-depth analyses of relevant legislation and a variety of other sources as well as on-site visits. After the visits country-specific recommendations are adopted by GRECO s plenary - they form the core of what we call an evaluation report. A further crucial feature of this procedure is an impact assessment ( compliance procedure ), which appraises after an appropriate amount of time has elapsed - whether the measures taken by the country in question to implement the recommendations are sufficient. In the course of its four evaluation rounds GRECO has dealt with/or is dealing with inter alia the following subjects: - independence, specialisation and means available to national bodies engaged in the prevention and fight against corruption - extent and scope of immunities and other procedural privileges - identification, seizure and confiscation of corruption proceeds - public administration and corruption - prevention of legal persons being used as shields for corruption - links between corruption, organised crime and money laundering 1
- incriminations provided for in the Criminal Law Convention on Corruption and its Additional Protocol - transparency of party funding GRECO s Fourth Evaluation Round (launched in January 2012) deals with corruption prevention in respect of members of Parliament, judges and prosecutors. It covers: Ethical principles and rules of conduct Conflicts of interest Prohibition or restriction of certain activities Declaration of assets, income, liabilities and interests Enforcement of the rules regarding conflicts of interest The first reports will be before GRECO in a month s time. They concern Slovenia, UK and Poland and will be followed in December by reports on Finland, Estonia and Latvia. Now turning to the issue of transparency I like to think that transparency is the natural enemy of corruption, abuse of power and other similar malfeasance. Where is its place in the fight against corruption? Nearly everywhere seems to be the obvious answer. There is a plethora of areas where enhancing knowledge, raising awareness, removing barriers to information, introducing disclosure obligations, reinforcing controls and encouraging people to come forward with information play a crucial role. I have made a small selection of six areas where this perspective is relevant from our experience at GRECO. Firstly, a high degree of transparency in public administration (and in private business) is a cornerstone for preventing corruption, as is the right to express dissenting opinions and a truly independent media. The underlying rationale is the belief that the organisation, functioning and decision-making processes of public administrations must take into account the need to combat corruption, in particular by ensuring as much transparency as possible. GRECO s plea, expressed in a great number of evaluation reports, to facilitate and even actively promote citizens access to the information held by public authorities is a core example of how such transparency can be achieved. Access to information legislation should be as simple as possible and not include any lengthy and complex procedures or conditions that might limit or obstruct the accessibility of information. For example, for citizens and the media to always be obliged to submit an information request in written form and/or to invoke a direct and legitimate interest does not support administrative openness. Free access to information should be the norm and the withholding of information the exception. 2
Secondly, GRECO has paid considerable attention to those who, against all odds, report suspicions of corruption and other abuses in public administration and private business, the so-called whistleblowers. They are generators of transparency where there are strong incentives to sweep (or indeed keep) the dirt under the carpet. Whistleblowing is an important tool to increase accountability, to foster a culture of integrity, to deter malpractice and to strengthen the fight against mismanagement generally and corruption in particular. It can also play a crucial role in combating organised crime. Therefore, adequate legal provisions - affording bona fide whistleblowers reliable protection against any form of retaliation (be it unfair dismissal, harassment, or any other punitive or discriminatory treatment) - are crucial; and so is an enforcement mechanism to investigate complaints of retaliation and to provide redress. Protecting the messenger in this way, is not a just a goal in itself but rather it is to help ensure that important information about risks or wrongdoing gets to those who are accountable for the conduct or practice in question and who can do something about it. It is to make sure the message is received. By the way, this matter is also addressed by the Civil Law Convention on Corruption (ETS 174) of the Council of Europe. It dates back to 1999 and is the first attempt to define common civil law principles and rules at international level for the fight against corruption. Thirdly, transparency also plays a decisive role with regard to the immunities enjoyed by certain categories of public office holders and/or elected representatives in a number of countries. These immunities - from investigation, prosecution or adjudication of offences - represent, in principle, major obstacles in the fight against corruption. One could even claim that any form of protection against criminal investigation contradicts the rule of law, one of the pillars of democracy. GRECO has therefore recommended to a number of countries that the lists or categories of those benefiting from immunity be significantly reduced and that, especially with regard to parliamentarians, the procedures for lifting immunity be rendered more transparent, clear and above all, less politicised. Obviously this does not concern the protection MPs rightly have for votes cast and opinions expressed in parliament. Fourthly, the recruitment and career development of public officials is often overly secretive and tainted by favouritism or even undue influence. The lack of transparency of such procedures is often accompanied by a lack of impartiality, an absence of clear criteria for the appraisal of candidates and the non-existence of a merit-based approach. That said, there is much evidence to suggest that serious efforts have been made in a number of countries, notably within the EU, to avert cronyism and nepotism in recruitment and promotion procedures in public administration and thus to eliminate corruption in the procedures themselves. 3
Fifthly, transparency is also the overarching principle when it comes to the difficult question of conflicts of interest. If holders of public office are to file declarations of assets, income, liabilities and interests, as is now increasingly the case, actual and potential conflicts of interest as well as unexplained wealth will come to light more easily. If implemented and monitored properly such procedures can be a powerful weapon in the fight against corruption. Turning to parliamentarians more specifically, the multiplicity of sometimes conflicting - interests that they are expected to respond to or represent in the course of their duties, makes a major case for as much transparency and disclosure as possible. This is one of the core issues on GRECO s current agenda. A specific challenge in terms of transparency concerns parliamentarians contacts with third parties who may try to influence their decisions. It is essential that systems of ethics and conduct shield parliamentarians from undue influence; they should also help clarify parliamentarians relations with lobbyists. I trust that these issues will be further clarified as the current 4th evaluation round reaches its cruising speed. The sixth and last area I would like to address is the funding of political parties and electoral campaigns which was the focus of GRECO s third evaluation round. States often fail to provide for consistent legislation covering both regular party funding and election campaign funding. While direct financial donations are frequently subject to transparency regulations, other sources of income such as donations in kind, party membership fees, loans or sponsorship tend to be neglected and may be misused to circumvent the rules on donations. In some countries, the identity of donors and the value of donations are not disclosed at all or only in case of very large contributions. Regulations on annual party accounts and on campaign funding reports often fail to require the level of detail necessary to provide meaningful information. As concerns the scope of accounts to be supervised, many countries legislation ignores local party bodies, entities directly or indirectly related to the sphere of activity of parties and third parties involved in election campaigns. In many countries, financial information is not made public in an easily accessible manner and within specified time frames, and sometimes accounts are not even subject to any independent scrutiny. Not all our member states have made credible efforts to address these deficiencies. Several of them, including some in the northern part of Europe, which is widely and rightly considered to be relatively unaffected by large-scale corrupt practices, are currently subject to a compliance enhancing procedure, which places them under closer surveillance by GRECO. Their overall performance has had, in some cases, to be qualified as globally unsatisfactory. That said, it is gratifying to note that some of the members who had to accept this negative label in the past have made significant efforts to address the deficiencies which gave rise to the recommendation and thus are no longer subject to the non-compliance procedure. 4
In conclusion, increasing transparency is not the magic bullet in the fight against corruption and organised crime. Nor can we rely exclusively on a preventative approach. Our experience clearly vindicates the view that prevention of corruption and vigorous law enforcement are complements and not alternatives. Preventive efforts will be in vain if they are not backed up with determined actions to counter impunity. A sound track record of investigations and convictions, including in the area of high-level corruption, is especially important in countries where a significant number of citizens face corruption in their daily lives. Fighting impunity is essential for the legitimacy of the political system. In the context of your important work you might like to learn that the CoE intends to set up a Committee of Experts on Transnational Organised Crime (PC-COT). The Committee will be asked to prepare, by the end of 2013, a White Paper on selected trends and developments in transnational organised crime in the Council of Europe member States which may be considered as priority areas, focusing on identifying possible gaps in the criminal law co-operation and providing recommendations as to possible action by the Council of Europe in this regard. I am confident that this work will generate a great deal of synergy with your ongoing and future work. Please let me add one more point. One of the most important challenges for the fight against corruption in Europe and beyond concerns the question of the European Union s involvement in GRECO s work. EU participation in GRECO which is foreseen under the Stockholm Programme will almost certainly help strengthen the impact of our respective anti-corruption activities; it should also have the benefit of minimising the risk of generating conflicting standards and performance benchmarks. We have good reasons to believe that President Barroso and Commissioner Malmström remain committed to reinforcing cooperation between the EU and GRECO, despite the fact that the initial schedule for opening negotiations on EU participation has been delayed. This is mainly due to the difficult legal questions that need to be resolved before a negotiating mandate can be prepared and agreed upon. Notwithstanding the absence of visible progress on this matter, I am confident that a mutually beneficial solution will be found. Such a solution will create major synergies and give teeth to the anti-corruption endeavours of the CoE and the Union. 5