GRECO & HUMAN RIGJTS

In recent years, in many European countries, including Romania, Malta, the Republic of Moldova, Bulgaria, the Slovak Republic and Ukraine, people have taken to the streets in protests against systemic corruption, demanding respect for the rule of law, accountability of corrupt politicians and a resolute fight against corruption.

Corruption is rightly called one of the most insidious social phenomena. It erodes trust in public institutions, hinders economic development and has a disproportionate impact on the enjoyment of human rights, particularly by people that belong to marginalised or disadvantaged groups such as minorities, people with disabilities, refugees, migrants and prisoners. It also disproportionately affects women, children and people living in poverty, in particular by hampering their access to basic social rights such as healthcare, housing and education.

From a global perspective, it is unsettling that according to estimates, hundreds of billions of Euros are paid in bribes every year and that corruption, bribery, theft and tax evasion cost developing countries some US $1.26 trillion per year. This would be sufficient to lift the 1.4 billion people living on less than $1.25 a day above the poverty threshold and keep them there for at least six years. One of the most striking examples of the devastating impact of corruption on our lives is also that globally, over 7% of healthcare expenditure is lost to corruption, as noted in Transparency International’s 2019 report The Ignored Pandemic. The report points to a study based on data from 178 countries which estimated that more than 140 000 child deaths a year are attributable to corruption.

Strong anti-corruption standards

The Council of Europe has developed a set of strong anti-corruption legal standards and has tasked its specialised body, the Group of States against Corruption (GRECO) with the oversight of their implementation through a dynamic process of mutual evaluation and peer pressure designed to identify deficiencies in national anti-corruption policies and prompt the necessary legislative, institutional and practical reforms. The most important instruments are the Criminal Law Convention on Corruption (along with the 2003 Additional Protocol)[1] and the Civil Law Convention on Corruption, both developed in 1999.[2] These treaties are complemented by other benchmark legal instruments, including Twenty Guiding Principles for the fight against Corruption contained in Committee of Ministers’ Resolution (97) 24.

Demonstrating the multiple links between corruption and human rights violations, corruption is also increasingly addressed in the case-law of the European Court of Human Rights. For example, in the judgement Kövesi v. Romania of May 2020, the European Court of Human Rights found violations of Article 6 (right to a fair trial) and Article 10 (freedom of expression) of the Convention in relation to the removal of the chief of the national anticorruption prosecutor’s office before the end of her second term, following her criticism of legislative reforms in the area of corruption. The Court attached particular importance to the office held by the applicant, noting “that those functions and duties included expressing her opinion on the legislative reforms which were likely to have an impact on the judiciary and its independence and, more specifically, on the fight against corruption conducted by her department.”[3]

Relevant Council of Europe standards also include documents adopted by the Parliamentary Assembly with a view to stepping up the fight against corruption and restoring trust in the efficiency and effectiveness of democratic institutions, such as Resolution 2170 (2017) and Recommendation 2105 (2017) on Promoting integrity in governance to tackle political corruption, as well as Resolution 2192 (2017) on Youth against corruption.

The Committee of Ministers has also adopted useful standards for the fight against corruption , namely Recommendation CM/Rec(2014)7 on the Protection of Whistleblowers of 30 April 2014.

The Consultative Council of European Judges’ Opinion no. 21 (2018) on the prevention of corruption amongst judges defines corruption of judges in a broader sense to include dishonest, fraudulent or unethical conduct by a judge in order to acquire personal benefit or benefit for third parties. It comprises a set of recommendations on measures that member states need to take to prevent corruption inside the judiciary. These include a regulatory framework relating to decisions on judges’ careers; a set of rules, principles and guidelines on ethical conduct of judges; a robust system for declaring assets; rules concerning recusal and self-recusal of judges; and adequate criminal, administrative or disciplinary penalties for a judge’s corrupt behaviour to enhance transparency and thereby public trust in the judiciary.

At the global level, the 2003 United Nations Convention against Corruption (UNCAC) provides for preventive measures, criminalisation and law enforcement, international co-operation, asset recovery, and technical assistance and information exchange. Additionally, Sustainable Development Goal 16 (Peace, Justice and Strong Institutions) includes a commitment to substantially reduce corruption and bribery in all their forms.

Corruption – a serious threat to the administration of justice and human rights

The judiciary and law enforcement are among the institutions most affected by corruption. In several Council of Europe member states, the governments have rushed judicial reforms reinforcing the executive’s strong influence on the judiciary through parliament, seriously undermining the independence of the judiciary, weakening judicial oversight of the executive, and in turn its capacity to fight corruption. GRECO has underlined the need to guarantee the proper independence of judges as a way to avoid undue political influence on the judiciary which can lead to biased, corrupt judgments serving interests other than the public’s.

I addressed these issues in my work on Turkey, Poland, Hungary, Romania and San Marino. In Turkey I called for constitutional and legislative changes to address sweeping problems of lack of independence of the judiciary and its partiality to political interests. I criticised the Polish government’s far-reaching reform of the judiciary which was accompanied by a publicly financed campaign to discredit judges under the disguise of a fight against corrupt judges. I joined the criticism expressed by the Venice Commission and GRECO about reforms of the judiciary in Hungary since 2011 and the risks and dangers they posed for the independence of the judiciary, judicial institutions and individual judges. In my dialogue with the Romanian authorities I stressed the importance of maintaining the independence of the judiciary and urged the authorities to give effect to the recommendations of the Venice Commission and GRECO in this regard. Last year, I also referred to the need to make full use of the assistance and guidance of these two bodies in my dialogue with the authorities of San Marino in order to allay concerns about undue interference with the judiciary by the executive and the legislature.

Corruption in law enforcement is particularly dangerous, as it has an impact on the safety of citizens and on their pursuit of justice, including in cases of political corruption and police misconduct. In Ukraine, corruption appears to have prevented progress in investigations into several high-profile cases, including the killing of anti-corruption activist Kateryna Handzyuk. An interesting aspect of GRECO’s ongoing evaluation of the prevention of corruption and promotion of integrity in law enforcement has been the issuance of a number of recommendations to member states aiming at increasing the representation of women in higher posts in the police and ensuring their integration at all levels in law enforcement agencies, notably as a way of avoiding group-think which increases the risks of corruption. Recommendations were made in that regard for instance in respect of the police in Estonia, Denmark and Spain.

Corruption is an important barrier in accessing health care. In my report on the Republic of Moldova, I called on the authorities to address the common practice of informal and out-of-pocket payments which discourages patients, especially those from poor families, from seeking medical assistance or from doing so promptly. In many countries whose health and social care systems had been undermined by years of corruption, including bribery in medical service delivery and corruption in the procurement of medical equipment, the COVID-19 pandemic exacerbated systemic problems in those sectors and increased risks of corruption. For example, it was reported that endemic corruption had significantly compromised the ability of the hospital system in the Italian region of Calabria to cope with the additional strain of the pandemic. Several corruption scandals affecting long-term care institutions for older persons have also acquired additional significance in the light of the ravages of the pandemic in such institutions. Vested interests and corruption have also hampered efforts to deinstitutionalise persons with disabilities in certain countries. In April 2020 GRECO issued guidelines pointing to a number of risk areas in the context of the pandemic, for instance regarding procurement systems with a view to avoiding misuse of public funds in emergency situations by slackening normal safeguards; bribery in medical-related areas; and corruption in research and development.

Importance of the protection of freedom of expression and transparency

Investigative journalists and whistleblowers play a pivotal role in the fight against corruption. The killings of the journalists Daphne Caruana Galizia in Malta and Jan Kuciak in Slovakia are emblematic of the risks that journalists take to expose corrupt politicians and their links to organised crime, so that they can be held accountable. In my statement of October 2020, I deplored that three years after Daphne’s murder, it has still not been established who ordered it and what the motives behind her brutal assassination were. While the murderers of Jan Kuciak and his fiancée Matina Kušnírová were convicted in September 2020, two and a half years following their killings, it was regrettable that there was no conviction of those who organised the killings. I have noted in this regard that a court decision showed that there is still work to do to ensure justice and prevent impunity in Slovakia. Olivera Lakić, a journalist with the Montenegrin newspaper Vijesti, known for her investigations of political corruption, survived an attempted murder in 2018, and the organisers of this crime have not yet been brought to justice. In Serbia, impunity continues in the case of the brutal beating of Serbian investigative journalist Ivan Ninić in 2015, while journalists of KRIK (the Crime and Corruption Reporting Network) have received death threats and were targeted by smear campaigns. Another emblematic case in this respect is the Azerbaijani investigative journalist Khadija Ismayilova, who was imprisoned because of her criticism of members of the government and their families for alleged corruption and illegal business activities. The European Court has found several violations of the Convention in her case, including a violation of Article 18 concluding that the actual purpose of the deprivation of liberty was to silence and to punish the journalist for her journalistic activities.

Another risk facing journalists who investigate corruption are the so-called Strategic Lawsuits against Public Participation (SLAPPs). These are groundless legal actions brought by powerful individuals or companies that seek to intimidate journalists into abandoning their investigations. As an example, when Daphne Caruana Galizia was murdered, she was already facing over 40 civil and criminal defamation suits in Malta, and some of these lawsuits have continued posthumously against her family. In a Human Rights Comment that I published in October 2020, I raised my concern that these suits pose a significant and growing threat to the right to freedom of expression in a number of Council of Europe member states, perverting the justice system and the rule of law more generally.

Finally, transparency is an indispensable tool in the prevention of corruption, as a way of demonstrating that the public interest remains at the core of decision-making, as I noted recently in my Human Rights Comment on access to public information. I called on Council of Europe member states to make access to official documents a reality, including by effectively implementing relevant freedom of information legislation.

Fight against corruption must remain a priority

Despite the strong anti-corruption standards and GRECO’s effective monitoring of member states’ compliance with these standards, corruption continues to pose a serious threat to the rule of law and human rights in the Council of Europe region.

In order to tackle corruption effectively, Council of Europe member states should comply fully with the Council of Europe and international standards concerning corruption prevention and the promotion of integrity and step up the implementation of GRECO’s recommendations.

Perception of corruption and reality do not always match perfectly, as corruption can take many guises going beyond bribes, such as conflicts of interest. Therefore, as noted by GRECO, even countries with a high level of trust in their public institutions need to introduce preventive anti-corruption measures where a possible gap has been identified, no matter where they are placed in perception indexes.

Public officials need to act with integrity and avoid engagements which may entail a conflict of interest and increased risk of corruption.

It is equally important to ensure a robust, well-functioning and adequately funded system of oversight of police misconduct and conduct regular training of members of law enforcement on integrity and ethics.

Public spending for health care is particularly inefficient in countries with poor governance. In order to prevent corruption in this sector, member states need to ensure strong and effective governance, as an essential tool for the optimal functioning of national health care systems and for the prevention of emergencies, such as pandemics.

Governments need to protect freedom of expression and the safety of journalists and fight impunity for crimes against journalists. Politicians need to refrain from undue criticism and pressure on investigative journalists that may have a chilling effect and lead to self-censorship.

Last but not least, governments need to counter SLAPPs effectively by allowing the early dismissal of such suits, introducing measures to punish abuse, particularly by reversing the costs of proceedings, and minimising the consequences of SLAPPs by giving practical support to those who are sued.

Dunja Mijatović

[1] This instrument provides for complementary criminal law measures and for improved international co-operation in the prosecution of corruption-related offences.

[2] The Convention requires contracting parties to provide for effective remedies in their domestic law for persons who have suffered damage as a result of acts of corruption, in order to enable them to defend their rights and interests, including the award of compensation.

[3] European Court for Human Rights, Kövesi v. Romania, Application Number 3594/19, 5 May 2020, para. 205.

https://www.coe.int/en/web/commissioner/-/corruption-undermines-human-rights-and-the-rule-of-law

p/o Virginie Gastine Menou
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