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Issues and Reports
Issues & Reports No 10.
COMBATING CORRUPTION IN CENTRAL AND EASTERN EUROPE
A Seminar on Anti-Corruption
Strategies for Central and Eastern European Countries took place at the International Law Enforcement Academy (ILEA) in Budapest, Hungary from 7 to 12 April 1997. It was organised by the United Nations
Interregional Crime and Justice Research Institute (UNICRI) and funded by the Department of State of the United States of America.
The Seminar was attended by 35 participants from Bosnia and
Herzegovina, Bulgaria, The Czech Republic, Estonia, Hungary, Poland, Romania, The Russian Federation and Ukraine as well as 7 international experts.
Corruption is regarded as a major problem in
society, one capable of endangering the stability and security of societies, undermining the values of democracy and morality, jeopardising social, economic and political development, and threatening peace.
Because of current growing concerns about corruption as well as a rapid expansion of the sphere of corruption, law enforcement officials can find themselves in an ambivalent situation. On the one hand, they
have duties to strictly apply and interpret existing law in order to maintain the "rule of law". On the other hand, they might be criticised as being inflexible in coping with the situation even
though, in fact, it is often the law that has not been adjusted to a modern, fast-changing world.
Demands of the criminal justice officials, especially of law enforcement officials, are
increasing rapidly in this field. At the same time there is a greater possibility for them to accomplish this work by exchanges of information on successful investigation and prosecution methods. This
seminar was constructed to assist law enforcement officers in these situations.
The aims of the Seminar were to give officers with line responsibility for investigating and prosecuting
|·||information on general causes and characteristics of corruption in the participating countries; |
|·||information on anti-corruption strategies to identify and analyse problems encountered in investigation and prosecution; |
|·||suggestions on best practices with respect to both preventive and repressive control mechanisms, including how inadequacies in respective laws impeded their use; and |
legal developments in
defining "corruption" so as to comply with the principle of legality.
These objectives were achieved by thorough discussion of the case-studies that each participating country was requested to prepare, as well as of cases and other material presented by UNICRI's
INTERNATIONAL TRENDS IN ANTI-CORRUPTION STRATEGIES
Woltring, Director of UNICRI, discussed the most recent international initiatives
at the legislative and enforcement levels aimed at fighting corruption. He highlighted three discernible international trends, i.e., developments in criminal law, administrative law and regulatory
mechanisms; procedures to detect and prevent corruption; and forfeiture of criminally obtained assets.
Discussion arose on the range of property that subsequently may become the subject of
forfeiture or confiscation, especially in the case of severe inflation. Three types of legislation were identified in this respect. The first type only allows for the confiscation of the direct proceeds of
the crime in question; the second type allows for the confiscation of even the indirect proceeds; and the third one is a mixture of the two. It was stressed that each country should choose the most
appropriate mode according to its own criminal policy.
Professor Ernesto Savona of the University of Trento presented corruption trends in Western as well as Eastern and Central Europe. He
identified six corruption patterns in Western Europe and analysed political instability, the privatisation process, low salaries of public officials and the presence of organised crime and their discernible
links with corruption in Eastern and Central Europe. The regulation and sanctioning of corruption in the region were then discussed. It was noted that even though corruption in the private sector is
frequently discussed, only two countries (Sweden and Denmark) explicitly prohibit it by criminal law in terms of "corruption".
A session on new legislative trends, chaired by Mr.
Andrew Wells, Senior Legal Advisor of United Nations International Drug Control Programme
(UNDCP), identified several remarkable changes and relatively rapid reconsideration processes in the legal framework
of the participating countries. It was, however, also recognised that such changes in the legal code sometimes remain "on the books" and may not reflect a "real" breakthrough in the
investigation and/or prosecutorial practices.
Mr. Michael De
Feo, Assistant Director of the Federal Bureau of Investigation, presented a sample case-study for the United States. In the
case-study, a Congressman was approached by an FBI undercover agent and agreed to receive a bribe in exchange for introducing legislation. The controversial theme of the use of undercover agents or agents
provocateurs was discussed. It was emphasised that the use of such agents is dependent on the national legal system, but that many countries with long democratic histories had found them necessary in dealing
with this form of clandestine activity.
Submitted case-studies were examined in four different categories, namely; corruption of police and customs, corruption in the administrative
process, corruption in the judiciary and corruption in the privatisation process.
Corruption of police and customs
The session was chaired by Mr. De
Feo. Four case-studies
were presented. Three of the cases involved corruption among the police and one involved corruption in the customs service. In two cases, the information leading to the investigation was provided by victims,
i.e. the persons who were solicited for a bribe or victims of extortion. In one case the information appears to have come from citizens who witnessed the receipt of bribes by a customs officer. This variety
of sources emphasises the importance of citizens' co-operation and their confidence that appropriate action will be taken if official misconduct is reported to the authorities. Such co-operation and
confidence is absolutely essential for the success of an anti-corruption strategy.
In two cases audio-visual surveillance was
utilised. Some countries restrict the use of these techniques to the
investigative stage and do not admit the results as evidence. There is a trend to permit their use as evidence only after authorisation by an independent authority, such as a court or chief public
The discussion on legislation revealed many inadequacies even though most countries have some rudimentary tools in their penal codes and codes of penal procedures to combat
corruption. A particularly hard problem was posed by a case-study in which all the members of the public, the investigative agency and the prosecution performed their duty, but the court failed to process
The importance of mechanisms of co-operation and control was stressed. Investigative resources assigned to prosecutorial bodies are necessary in order to investigate police
misconduct, sometimes with the assistance of specialised agencies such as the Polish Office for the Protection of the State and the internal security services of the Hungarian law enforcement bodies.
Zvekic, Deputy Director of UNICRI, presented an analysis based on the results of the International Crime (Victim) Survey. Even though the results are limited to "street
level" corruption, the survey provides - unlike official statistics - a detailed account of the motives for (non) reporting and the vulnerability of public officials to corruption.
closing, Mr. Woltring reiterated the need for highly intrusive techniques for combating such a consensual and covert activity as corruption. Nevertheless, he stressed that they should be subject to
authorisation by an impartial authority removed from the persons immediately involved in the investigation.
Corruption in the administrative process
The session was chaired
by Dr. Zvekic and included the presentation and discussion of four case-studies, two dealing with police and customs corruption and two with corruption in administration. Mr. Tom Sherman of the Australian
National University and former Chairman of both the Financial Action Task Force
(FATF) and the Australian National Crimes Authority, presented a paper on "Proactive Investigation: Australian
Experience", and Mr. Woltring presented a paper on the UN Code of Conduct for Public Officials.
Six themes emerged from the presentations and discussions.
networks: corruption is often not an individual act but rather a continuous illegal transaction process involving a number of actors. Where
institutionalised, it corrupts the whole body or agency, which
could then be seen as a corrupt enterprise.
Often investigation does not fully succeed because it tends to focus on single
act(s) rather than on the corruptive links. It is therefore important
that legislation provides for an opportunity to fully disclose the extent and scope of corrupt networks and that targeted investigative strategies are utilised to cope with them.
Other obstacles to the disclosure and breakdown of corrupt networks include:
|·||lack of dedicated resources and special investigative units; |
|·||pressures to divert priorities to what are considered more urgent problems such as serious violent crimes; and |
|·||lack of effective international co-operation when the corrupt network involves one or more international components, even when the relevant countries are signatories to international conventions or
treaties, such as mutual assistance in criminal matters treaties. |
2. Corrupt networks are likely to develop in situations where mechanisms to ensure accountability and transparency in the decision-making process on allocation of resources and rights are
inadequate. This is typical for corruption in the administrative process. On the one hand, strategies to promote accountability and transparency were mentioned as necessary conditions for the containment and
prevention of corruption. On the other hand, a proactive investigation approach was suggested.
3. On the level of individual actors, reductive and/or preventive measures include improving the
financial status of public officials, particularly those with a certain degree of discretionary powers with respect to the allocation of resources or permits and
licences. At the macro level, certain
governmental policies, such as excessive taxation of consumer goods (e.g. cigarettes), or the monopolistic position of producers and distributors of goods and services, are also conducive to illegal
transactions, including simple bribery, as well as to the establishment of corrupt networks.
Other more specific issues included the following:
4. Concern was expressed about the
emerging role of defence lawyers in terms of improperly obstructing criminal proceedings. Obstruction ranges from avoiding appearance before the tribunal to active participation in bribery (soliciting or
receiving). However, it was recognised that the role of honest and professional defence lawyers is fundamental for the correct, fair and equal treatment of all parties involved in the proceedings. They also
have an important role to play in preventing corruption by providing their clients with appropriate advice on how to avoid commercial or other types of transactions that are corrupt or conducive to
5. The presented cases and ensuing discussion revealed the importance of:
|·||occasional excessive systems of immunity along vertical lines of judicial, political and/or administrative personnel which impeded effective prevention and investigation of corruption, both at the
individual and organisational levels (e.g., sometimes immunity was extended as low as local
|·||possible limited use of, and authorisation to use, specific investigative techniques and the use of the material obtained in evidence; and |
|·||the role of the mass media in disclosing cases of corruption, on the one hand, and, on the other, its possible negative effects during the investigative or adjudicative phase of criminal proceedings
by inappropriate disclosure of the case and suspects, or by uninformed siding with suspects in corruption cases. |
6. The role of independent special inquiry commissions and authorities on corruption was highlighted, particularly in terms of their effects on the prevention of corruption at both the
organisational and individual level.
Corruption in the judiciary
Mr. Sherman chaired the session. Two cases were presented: one involved a judge directly soliciting a bribe
for himself from a person charged with a traffic offence. The other case-study involved four persons: a judge, a prosecutor, a litigant company and an intermediary. The bribe was offered to the prosecutor by
the judge acting as an intermediary for the litigant.
As in the case of the administrative officials, both case-studies disclosed that special procedures had to be followed, where approval was
required to commence or continue the investigation and/or prosecution of judges.
In the Russian Federation, criminal investigations against judges have to be approved by a qualification's
committee consisting of judges operating in the same area as the suspected judges. In this particular case, ten applications have been made but seven have been denied.
In the Czech Republic the
prosecutors have to obtain the approval of the President of the Republic for processing offences committed in the exercise of judicial functions. Two or three cases have occurred in the last five years and
permissions were granted.
During the discussion, it was reported that in Estonia, Hungary and Bosnia and Herzegovina (both the Federation and the Republic of
Srpska) there are no special
procedures to initiate investigations or prosecution of judicial corruption. In the other countries specific authority to approve or consent to the investigation and/or prosecution of judicial corruption is
required. In Bulgaria, this is the Supreme Judicial Commission, while in Poland approval is required from the Ministry of Justice and Supreme Council of Magistrates. Ukraine has a procedure similar to that
of the Russian Federation.
It was also recognised that whether or not any country should have special measures to approve the investigation or prosecution of the judiciary should be looked at
in the country's historical context, but that clearly immunity should not be so wide as to permit corruption. The cases of immunities and/or special permissions thus raised important questions as to equality
before the law.
Judicial corruption is a particularly serious form of public corruption. The citizen might be cynical about politicians and bureaucrats but public confidence in the legal system
depends heavily on judges maintaining the highest standards of integrity and objectivity. Public confidence is undermined when judges engage in corrupt conduct and the major looser is, through lack of
confidence, society itself.
Furthermore, judges are the guardians of the law. They decide on corruption cases and therefore play a crucial role in the fight against corruption. If judges are
corrupt, or perceived to be corrupt by the public, anti-corruption measures will fail.
Corruption in the privatisation process
The session was chaired by Professor
Before discussing cases related to the privatisation process, he presented a market perspective of corruption, according to which the phenomenon of corruption was considered the result of market forces such
as demand coming from the corrupters and the supply provided by the corrupted. Assuming that both actors in this market aim at maximising opportunities and minimising risks (as rational men and women do), in
order to be effective, anti-corruption strategies should be oriented towards reducing the opportunities for corruption and increasing the risks of being arrested or caught and thus damaging their reputation.
In other words, anti-corruption strategies should deal with both aspects of the problem; prevention and control. One expert suggested that the participants should suggest to their authorities (such as Chief
Prosecutors) the usefulness of this approach for improving current strategies.
It was clarified that the most rational criminals are those who commit economic crimes, who, given their
rationality and the current situation, necessarily design more complex criminal schemes. Having considered corruption as a transaction among two or more actors the problem of definition arose. What really is
corruption? Are the legal definitions satisfactory and comprehensive or are more extensive ones needed? The legal definition was considered as appropriate when it related to "any kind of benefits"
in return for a corrupt activity. Another problem is that of private and public corruption discussed at the beginning of the Seminar. Is private corruption really "corruption", or should it be
considered fraud? Is corruption a crime because it attacks the integrity of the public institutions or because it introduces distortions in the markets? Corruption is a generic word representing different
types of crimes. Fraud could cover private corruption when, for example, an employee takes a bribe for doing something against the interest of the industry for which he/she works.
were discussed. The Hungarian case described a distortion in a tender procedure; the corrupter (a mediator) approached a bidding company and sold his influence as a public official over the Minister (the
decision maker) who could influence the decision in choosing a tender. This is a typical case of trafficking of influence because there was no evidence that the Minister was aware that his
"decision" was sold as a result of a corruption. A transaction consisting in a money transfer was found and used as the main evidence for the successful prosecution.
A discussion was
focused on how it was possible to sell the decision of a Minister capable of nullifying the tender procedure. It was also recognised that unclear and non transparent tender procedures could produce
opportunities for corruption. It is also possible that evidence might not necessarily consist in the transaction of banknotes. What would happen if this transaction had been done by a wire transfer into a
foreign bank account? Probably, also in corruption investigations, as in the investigation of drug trafficking, some forms of controlled delivery would help to reconstruct the corruptive networks, especially
now that corruption transactions are becoming more complex in the Central and Eastern European context.
The Polish case described corruption between a state official, the Director of a
Department of the Ministry of Ownership Transformations, and the owner of a civil partnership. A percentage of a credit undertaking - the credit was never delivered - was requested and partially paid. Also
in this case, the traffic of influence was the main feature of transaction because there was no evidence that the Minister was involved. "Connections" were sold in exchange for direct or indirect
financial benefits and the rules of allocation of property rights were uncertain. The potential victims were led to believe that the discretionary power of the Minister would easily distort the criteria for
the allocation of property rights.
The Czech Republic's case related to a bidding procedure for taking control of an industry. The bid was won by the company that had made the best offer but
the entire procedure was nullified without any official reason. The representative of the company which had initially won the contract sued the State Property Fund of the Czech Republic whose representative
contacted the company offering a direct acquisition of shares subject to payment of a significant secret commission. Numerous meetings were held before the matter was referred to the Police Service for the
Detection of Corruption and Serious Economic Crimes.
Many indicators were involved and the complexity of the cases do not correspond to the simple way in which the bribery transaction had been
carried out. The role of special unit of the Czech police was outlined.
PANEL ON TECHNICAL CO-OPERATION
The Technical Co-operation Panel identified roughly two levels of problems that need to be
addressed in order to effectively construct an anti-corruption strategy: strategic obstacles and institutional obstacles.
Strategic obstacles deal with difficulties in approach to, and
organisational activities in, combating corruption. The corrupt activity is often not an individual action but a continuous series of actions of a corrupt network. In addition to its latent nature,
corruption in the rapid privatisation process makes investigation more difficult. Investigators may not be familiar with the regulations governing the privatisation process, which change frequently. They are
required to trace intangible damage, often in the form of money transactions, rather than tangible damage, which requires special skills that investigators/prosecutors often do not possess. The intangible
nature of the damage may lead to reduced political support to combat it in the face of the urgent need to solve more tangible crimes, such as homicide and robbery. Also, the historical difficulty for these
countries in distinguishing between the private and public interests makes this even more problematic.
Institutional problems reflect current dynamic socio-legal changes in this region. Some
participating countries have changed their legal framework in order to effectively fight corruption; others still rely on the conventional criminal law framework. Even for those countries which have
introduced new corruption legislation, actual enforcement of such legislative frameworks may be a different question. Some countries lack operative rules and/or forces to enforce this "new" legal
framework. Lack of specialised organisations or units to combat corruption as well as lack of co-operation among the different organisations and units are common obstacles. The excessive conferral of
immunity on the judiciary and/or Members of Parliament, the problem of authorisation and control of the use of special investigation techniques such as wire-tapping and undercover agents and the lack of
skill of the personnel using them are also common impediments.
It is possible to construct an itemised list of day-to-day obstacles in fighting
corruption in participating countries. These can be categorised into legal obstacles, organisational obstacles, skill-related obstacles, information related obstacles, environmental obstacles and obstacles
inherent in corruption itself.
Problems related to legal provision were most frequently mentioned. Needs to improve existing laws and procedures can be
generic, such as an extension of anti-corruption law. Also, needs to fill in gaps among existing laws in the country might reflect the current situation of participating countries.
A more detailed listing of the obstacles includes:
|·||Lack of provision to extend corruption to the private sectors and foreign officials; |
|·||Lack of provision to use wiretapping and/or electronic surveillance; |
|·||Lack of possibility to use evidence collected by electronic surveillance in the court; |
|·||Lack of possibility to use undercover agents; |
|·||Lack of witness protection and means of securing their testimony; |
investigate/criminalise private banks, international transactions; |
|·||Lack of concept of corporate liability for corruption. |
|·||Lack of co-operation between national agencies,
with other countries and with international
|·||Legal provision fails to foresee inter organisational co-operation; |
|·||Lack of financial resources; |
|·||Low social status of criminal justice personnel; |
|·||Difficulty in recruiting competent personnel; |
|·||Lack of technical equipment to carry out special investigation techniques; |
intra-organisational auditing; |
|·||Lack of, or problems in implementing, codes of conduct. |
Skill related obstacles
|·||Lack of professional skills and training (e.g. on financial analysis) for police, prosecutors and judges, especially for newly appointed judges; |
|·||lack of experience in enforcing newly developed legal schemes. |
Information related obstacles
|·||Lack of a good database and network for ensuring information exchange between the other country's agencies specialised in corruption matters; |
|·||Lack of general information on corruption strategies around the world. |
|·||Lack of public awareness; |
|·||Lack of political support; |
|·||Extensive use of the immunity principle; |
|·||Inability to monitor the privatisation process, which is deemed a basis for corruption; |
|·||Bank secrecy; |
|·||Deficiencies in decision-making on allocation of resources, issuance of licences and permits. |
Obstacles inherent to corruption
|·||High rate of latency and clandestine nature of corruption per se; |
|·||Internationalisation of corruption. |
Solutions for problems
The best ways to overcome such obstacles can be found once the problem is effectively identified. Several items are worth mentioning.
Solutions for legal obstacles
|·||Assistance in reforming substantive/procedural
law: alignment with international achievements and standards, cognisance of the other country's situation and provisions,
catching up with reality;|
|·||Facilitate legal provisions so as to enable access to other national and international databases; |
|·||Provide adequate and effective sanctions for corruption; |
|·||Promulgation and implementation of codes of conduct. |
Solutions for organisational obstacles
co-ordinating body within the prosecutorial or other relevant office; |
|·||Establish specialised anti-corruption agency; |
|·||Establish co-operative agreement between agencies; |
|·||Establish auditing procedures and mechanisms; |
|·||Increased commitment for corruption investigation by the
|·||Improve social status of personnel; |
|·||Targeted allocation of resources; |
|·||Refreshment courses. |
Solutions for skill related obstacles
|·||Training to increase professionalism in new concepts of laws; |
|·||Training and equipment for: |
|database construction, |
|electronic surveillance devices, |
|personnel (general, for technology, financial analysis). |
Solutions for environmental obstacles
|·||Change behaviour and attitudes of politicians through public opinion and mass-media (for greater support in the fight against corruption); |
|·||Strengthen international co-operation; |
|·||Transparency and control in decision-making; |
|·||Targeted control on high risk group (sectors vulnerable to corruption). |
Technical assistance and co-operation
Specific assistance from international organisations will help these countries to overcome their current problems and would include:
|·||Assistance in reforming substantive and/or procedural law; |
|·||Training assistance; |
|·||Consultancy and expert assistance in developing and implementing anti-corruption strategies; |
|·||Promotion of international co-operation at the global and regional levels; |
|·||Providing compatible information on experience in other countries (especially on new investigation means and approaches); |
|·||Provide up-dated information on results of international research; |
|·||Setting up of permanent international arena for international data exchange; |
|·||Help in attending the international meetings; |
|·||Assistance in organising national seminars. |
It is important to mention that it was pointed out that there are considerable overlaps in the assistance from international organisations such as the Council of Europe,
UNDCP, Organisation for
Economic Co-operation and Development
(OECD), the United Nations, etc. Therefore, reductions in such overlaps are also listed as "effective assistance."
Technical assistance can also
be achieved by bilateral mutual assistance
programmes, which might include the exchange of personnel and study visits to the relevant
organisation, assistance in practical training in the use of special
investigative technologies, exchange of practical experiences to improve (i.e. speed up) responses to mutual assistance requests.
One of the objectives
of the Seminar was to provide participants with information on different types of anti-corruption strategies. It was therefore considered worth asking for their suggestions regarding preventive measures
other than prosecution.
|·||Introduction of integrity testing; |
|·||Auditing procedure and structures; |
|·||Legislation and control of corruption vulnerable industry. |
|·||Increase fair competition; |
|·||Reduce monopolies in the market; |
|·||Introduce checks and balances for decision makers; |
|·||Increase transparency in bureaucracy and public sphere; |
|·||Provide more information to public; |
|·||Raise public awareness; |
|·||Enact an adequate economic and social policy in public administration for general prevention; |
|·||Simplify administrative procedures; |
|·||Improve controls over banks: |
|remove secrecy, |
|encourage the reporting of corruption, |
|reduce cash transactions.|
OVERVIEW OF CURRENT AND PROPOSED DEVELOPMENTS IN ANTI-CORRUPTION STRATEGIES IN CENTRAL AND EASTERN EUROPE
The tremendous political, economic and social changes in Central and Eastern Europe in the late 'eighties, which were
faced with new types of economic crime that had previously been predominantly conceptualised as unlawful appropriation of state property, brought about a substantially altered phenomenology of crime and
consequently the appreciation that societies are confronted with new problems. Although, in the past, the law enforcement mechanisms in these countries have detected and prosecuted different forms of more or
less "classic types" of bribery connected with misuse of political and official power, their experience in detecting large scale corruption affairs with international implications have been
relatively modest. It is certain that closed and non-transparent political systems and socio-political structures, due to the then prevailing political ideology, were the main obstacles to a more elaborate
and effective fight against corrupt public management and administration.
The efforts in fighting corruption in the region consist of very intensive and dynamic legislative activities. These
also reflect the awareness of the societies, which should be stressed as one of the very characteristic features deriving from a concern that the new political developments, together with the liberalisation
of international trade and commercial transactions in connection with the highly developed and dynamic privatisation and related processes, could be a source generating a potential or real danger of larger
This is reflected in the recent intensive activity on national anti-corruption legislation of a preventive and repressive nature in almost all the countries participating in
In Estonia, where the new Criminal Code of l992 reduced the extremely severe punishments (which included capital punishment for the most serious offences) to seven years of
imprisonment, specific anti-corruption legislation was enacted in 1995. This contained the definition of corruption and an extensive list of holders of public offices who might be held liable, starting from
the President of the Republic and including members of Boards of Directors, Presidencies and Managing Boards of public and self-managing institutions, and clerks in public non-profit associations. The
provisions of this law also offer new investigative options and special extraordinary investigative measures in corruption cases.
Poland enacted in succession the Act on Limitation in Business
of Persons performing Public Functions in 1992; the Act Suppressing Unfair Competition in 1993; the Public Procurement Act in 1994 (both oriented towards the prevention of corruption) and a set of
"Police Acts" (June 1995) that paved the way for new methods of investigating corruption cases by enabling the penetration of corrupt circles and utilising operational information during trials.
The Hungarian Criminal Code, which encompasses the corruption provisions in the section on "crimes against the purity of public life" also contains the notion of "economic
bribery". In the past two years, the number of cases in this category that involve minor corruption have been, as it was stated, "extremely high". The specific Act on Obtaining Goods and
Services at the Expense of Public Sources should have direct anti-corruption preventive effects.
The Czech Republic has an interesting definition of corruption: an act that endangers and
affects the general public interest not only in relation to legislative, executive and judicial decision-making processes but also including other activities in cultural, social and other "public"
spheres. Therefore, the notion of "public figure" does not only include personnel in governmental, legislative and judicial structures, but also office holders in self-governing bodies.
Parallel to the criminal provisions in its Criminal Code, Ukraine also has a special law "About the Fight against Corruption" with provisions similar to those in the Estonian
Romania is in the process of modifying its own anti-corruption legislation and criminal provisions, with the assistance of the United Nations.
Bulgaria adopted a Law on special reconnaissance that should widen the list of investigative measures envisaged in the Criminal Procedural Law, but it is still pending approval.
participating countries have modified their substantive criminal and administrative law provisions relating to the complex issue of corruption during the last decade.
In criminal law, the main
changes were targeted towards sanctioning policy, the insertion of new modalities of crimes related to corruption, with a tendency to enlarge the notions of public interest and the holders of public
positions that should be covered by preventive and repressive measures against corruption. In the past, it was deemed sufficient to control corruption by referring to the actors of different forms of
corruption, such as "civil servants", because of the dominant state ownership over all administrative, social and economic structures. In a profoundly new situation, the legislator introduced a
much broader definition of the actors of bribery; in Romania, "any person occupying a function within a public body or a private and state owned commercial firm or institution, who uses his real or
presumed influence upon other employees, in order to gain profit for himself or for others"; in Hungary, so-called "economic bribery" requires the involvement of "an employee or member of
a state organ, economic or social organisation"; in Estonia, the Anti-corruption Law lists the following "public posts": "officials in agencies or institutions in charge of taking
decisions relating to the delivery of state property, and property of local self-managing bodies or public legal persons or members of Boards of Directors in these entities; clerks in public non-profit
associations whose position enables them to obtain undue rewards; a similar approach is adopted in the Czech Republic. The legislators in those countries that have developed a broader approach towards
anti-corruption strategies do not rely mainly on the deterrent effects of harsh punishments, but rather on more elaborated preventive and innovative approaches in
organisational, administrative and civil law
legislation, accompanied by improvements in the existing instruments for detection, and other corruption-related control measures.
The lowest levels of punishment by imprisonment are found in
Estonia, the Czech Republic and Hungary, with the maximum for aggravated cases of 7 years in Estonia, 8 years in Hungary and 5 years in the Czech Republic (although the crime of abuse of office can be
punished with up to l0 years of imprisonment - ?158 CC). Considerably higher levels of imprisonment exist in Poland, Romania, the Russian Federation and Ukraine where corruption in its most aggravated form
is punishable with 15 years, and in Bulgaria with 30 years of imprisonment.
The penal legislation also contains other important sanctions that could be implemented, such as forfeiture of
financial gain or property received by the corrupt official; and confiscation of property that substantially exceeds the value of the gain received by the corrupting party, as an additional punishment. In
some systems the courts can also impose an additional punishment that would interdict offenders from keeping their position in office or even terminate their service (Bulgaria, the Czech Republic, Hungary,
Poland). Sometimes this will result automatically as a consequence of the criminal conviction. Similarly, the consequences of the conviction usually lead to the initialisation of a subsequent disciplinary
proceeding with more or less identical effects in relation to the official status of the offender. In the Russian Criminal Code the removal of the offender from office is not stipulated and this question has
to be solved through disciplinary action only. The Ukrainian Law "About the fight against corruption" stipulates a variety of administrative and disciplinary sanctions such as fines, confiscation,
dismissal from service, interdiction from holding position in state institutions, etc.
The new problems encountered in fighting corruption in the new social and economic circumstances in
Eastern and Central Europe, as well as the experience of other countries, have brought about legislative innovations. Among these, the first to note are the new types of crime such as trafficking of
influence including mediators and providers (the Czech Republic, Poland and Romania: in the latter two countries this is punishable with up to 10 years of imprisonment); money laundering (Bulgaria, Estonia,
Hungary, Poland and the Czech Republic); economic bribery (Hungary and Poland: an offence violating the Unfair Competition Act that provides grounds for prosecuting certain types of offences similar to
corruption in the private sector); receipt of undeserved profits (Romania) or receipt of illegal rewards (Ukraine); as well as a list of "petty" offences such as failure to submit income related
documents or failure to report income (Estonia).
These legislative novelties in the substantial penal law of most of the participating countries are accompanied by modifications in the
procedural rules that provide for more effective detection and investigation of corruption cases and other forms of organised crime.
In addition to the provisions stipulated by the Criminal
Procedure Law, and following approval by a court (Bulgaria, Czech Republic, Hungary and the Russian Federation) or a prosecutorial order (Poland, Romania), the use of wire taping, electronic tracing,
undercover agents, secret acquisition or seizure of objects deriving from an offence are permitted, although usually for a limited period. Some modifications have been enacted by the Police Act (Poland),
Anti Corruption Act (Estonia) or by the Law of Special Reconnaissance (Bulgaria) that paved the way for special or exceptional measures such as surveillance of homes or enterprises, access to data bank
accounts, secret examination of documents and other undercover operations. These special investigative techniques can be used by the Police or National Security Services. The engagement of undercover agents
has not been legalised with the exception of Poland. It should be mentioned that the Law on Special Reconnaissance, passed in 1994 in Bulgaria, should be accorded with the Code of Criminal Procedure, a
process that is still under way. Modifications are also found with regard to the organisational structures in charge of investigative activities.
It is a common legislative viewpoint that the
courts in the respective countries are not engaged in investigative activities. Therefore, the institution of a "juge d'instruction" is not present in these systems. The investigation is
predominantly carried out by authorised police officers (including the secret police and revenue police) and by prosecutorial investigators. In The Russian Federation, official misconduct or bribery is
always investigated by the Prosecutor's Office; similarly, in Bulgaria the police do not conduct the investigation. In Poland, the majority of investigative activities are performed by the Prosecutor, and
therefore the police (or Office for the Protection of the State) only carry out activities requested by the Prosecutor. The Prosecutor's Offices are also generally in charge of supervising the investigation
process carried out by the police (Ministry of the Interior).
In some countries there are special rules or distinct investigative authorities for special situations. A unique solution exists in
Estonia where some crimes require investigation by the "ad hoc office" of the Court or Prosecutor, or by the "pre-trial investigation office" for second and third degree crimes. Special
investigative regulations are envisaged in most countries if members of the police forces, members of Parliament or Government, judges or prosecutors are involved in a corruption affair. For instance, in
Hungary, in such cases the investigation is conducted by a special Bureau of Prosecutorial Investigation. In the Czech Republic, if the act of corruption involves a police officer, the Service of the Police
of the Czech Republic is charged with the investigation. In Romania, the President of the State, members of the Parliament or Government and magistrates cannot be the subject of investigation without special
approval (by the Parliamentary Chambers or by the President of the State and Parliamentary Chambers in the case of members of government, and by the Minister for Justice in the case of magistrates). The
immunity principle for elected representatives is also found in some countries. During the presentation of a case study involving a judge, it became evident that for a criminal charge against a judge in the
Czech Republic, special approval by the President of the Republic is needed. In the Russian Federation, the current Federal Law on Status of Judges requires that the criminal proceeding against a judge can
only be instituted by the Prosecutor-General and only after receiving the consent of the local judicial qualification board.
To date, the countries reviewed have not developed, except in the
cases mentioned above, special structures for the investigation, prosecution or court proceedings for corruption, although some kind of specialisation does exist at the higher levels of the police or
prosecutorial organisation in order to improve effectiveness and co-ordination in combating economic crime, organised crime and
ciorruption. In the Czech Republic a special service for corruption and serious
economic crime exists within the organisational structure of the police; similarly, a special
Co-ordinating Committee exists in Hungary.It is worth noting that in most countries, alongside the development of
law enforcement structures and a penal framework for combating corruption and related crime, different preventive programmes have been created. These preventive strategies were based not only on national
experiences but also on the exchange of information and knowledge at the international level. The activities, which were originated and
co-ordinated by the United Nations Crime Prevention and Criminal
Justice Programme and other international
organisations, or by some intergovernmental bilateral forms of co-operation and technical assistance, have obviously influenced and enriched the complexity of
measures that exist or are still in the process of development in several countries.The following schematically outlines the main preventive mechanisms:the promulgation of special presidential decrees or
national programmes on the struggle against corruption (The Russian Federation, Romania, Poland, Bulgaria, etc.); the establishment of political bodies in parliaments or governments in order to co-ordinate
the national activities for more effective actions against corruption (The Russian Federation, Ukraine, Hungary); the enactment of pecial anti-corruption and related legislation such as the law for
controlling holdings of politicians and senior officials (Estonia, Poland, Ukraine, Romania); legislation on suppressing unfair competition (Poland); the annulment of civil or commercial contracts obtained
by means of corruption; strengthening of auditing procedures; limitation in business of persons performing public functions (Poland); public procurement legislation (Poland, Hungary); and the upgrading of
the responsibility of public officials; the adoption of a Code of Conduct for persons holding public office in administrative or labour legislation (Hungary, Poland, Ukraine, while this process is still
underway in some countries - the Czech Republic, Romania,); rules for giving or accepting gifts; etc.
The police and court statistics generally show that corruption cases encompass not more
than l% of the total crimes in the respective countries and that corruption has not reached the level of very famous "political/financial" cases as in some Western countries. This is supported by
the majority of the selected national cases presented at the Seminar. However, media reports and the results of the International Crime (Victim) Survey reveal that disclosed and processed cases are but the
tip of the iceberg of corruption. There are also a number of cases, mostly among local politicians and officials in charge of law enforcement and other control activities (police, customs and revenue
police), that have been detected and investigated within their own organisational structures. Corrupt activities in higher political, governmental, financial and foreign trade circles remain undetected
mainly because of lack of experience, insufficient legal instruments, lack of information and underdeveloped international co-operation.
It is very difficult, from a study of the documentation,
national reports and mutual exchange of experience, to present a full panorama of the main characteristics of the legislative and practical approaches used in combating corruption in Central and Eastern
Europe. However, the general impression is that the fight against corruption is now given high priority among the political leadership and relevant professional structures in all the countries participating
in the Seminar. Particular mention was made of the importance of direct exchange of experience and international co-operation in this field. Among the pressing needs, lack of experienced personnel and
suitable equipment as well as lack of exchange of information and advanced international mutual assistance, were ranked among those requiring first priority. These are not only the problems but also the
perspectives for further activities. It is hoped that the new initiatives for more effective co-ordination and exchange of experience within the United Nations will contribute greatly towards transforming
this perspective into reality.
It is necessary to explore follow-up activities based on the Seminar discussions, especially that of the technical co-operation panel. This could
take the form of a replication of the regional seminars for those countries that did not participate in the same region or for the other regions in the world. Other seminars targeted at higher ranking
officials (prosecutors and police officers) as well as at policy-makers in order to assist them in establishing more effective anti-corruption policies, including legislation building were also suggested.
Also identified was a pressing need for comparative research on anti-corruption measures in order to facilitate effective international co-operation. Topics such as the authorisation and use of special
investigative techniques, including the use of undercover agents and audio-visual or electronic interception also require additional comparative research and could warrant a follow-up seminar.
Woltring, Director, UNICRI |
Kaciban, Resident Representative at ILEA |
Methodology of the Seminar
Shinkai, Associate Research Officer, UNICRI |
International Trends of Anti-Corruption Strategy
|·||Presentation: Introduction to International Trends of Anti-Corruption Strategies |
Mr. Herman Woltring
|·||Presentation: Corruption in Europe: Western and Eastern Experiences |
Professor Ernesto U.
Savona, University of Trento, Italy
Legislative Trends in the Region
Chairperson: Mr. Andrew Wells, Senior Legal Advisor, UNDCP
Sample Case-study Presentation
Mr. Michael De Feo, Chief, Office of Professional Responsibility, FBI, USA
Corruption in Police and Customs
Chairperson: Mr. Michael De Feo
Case-study presentations (Poland, Hungary, Bulgaria, Estonia)
|·||Presentation: Corruption in Public Administration: Citizens' Experience in an International Perspective |
Zvekic, Deputy Director, UNICRI
Corruption in Administrative Process
Chairperson: Dr. Ugljesa Zvekic
Case-study presentations (Bosnia and Herzegovina, the Russian Federation, Ukraine, Romania)
|·||Presentation: Australian Case Studies on Corruption: Proactive Investigations |
Mr. Tom Sherman, Visiting Fellow, Australian National University, Australia
|·||Presentation: International Code of Conduct for Public Officials |
Mr. Herman Woltring
Corruption in Judiciary
Chairperson: Mr. Tom Sherman
Case-study presentations (The Russian Federation, The Czech Republic)
Corruption in Privatisation Process
Chairperson: Professor Ernesto U. Savona
|·||Presentation: Markets of Corruption |
Professor Ernesto U. Savona
Case-study presentations (Hungary, Poland, The Czech Republic)
|·||Presentation: UN Manual on Practical Measures against Corruption |
Mr. Michael De Feo
Technical Co-operation Panel
Chairpersons: Mr. Herman Woltring and Dr. Ugljesa Zvekic
|·||Mr. Andrew Wells |
Vlassis, Crime Prevention and Criminal Justice Officer, Crime Prevention and Criminal Justice Division, UNOV |
Viljanen, Programme Officer, European Institute for Crime Prevention and Control, affiliated with the United Nations
Main Characteristics of Corruption, Legal Framework, Investigation and Prosecution in the Region
Cotic, Senior Fellow, UNICRI