Legislation and regulation as ways of combating corruption

By Elias A. Stefanou

Before looking into the laws and regulations Cyprus Republic has enacted through the years (and intentionally I am not using the verb “enforced”, because as the French writer of the 18th century Anatol Frans said «The laws are good or bad, depending on the way you apply them».(« Οι νόμοι είναι καλοί ή κακοί, αναλόγως του τρόπου εφαρμογής τους»)), it is helpful to shortly define “ Corruption”. The shortest definition is given by Transparency International. “Corruption is operationally defined as the abuse of entrusted power for private gain.”[1].

A more detailed definition is given by the United Nations[2]. “Corruption shall mean engaging in or including acts that constitute improper performance of duty (or abuse of a position of authority), including acts or omission, offered or requested, or following acceptance of an advantage directly given, whether for oneself or an behalf of another.”

Even though Cyprus law faced corruption as a criminal act since before independence, the only clear definition is being found in Law 7(III)/2004, which incorporated the Council of Europe Civil Law Convention on Corruption. According to article 2 of the law, corruption means “requiring, offering, giving, or accepting, directly of indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof.”

1. Cyprus Legislation

Corruption in both the public and the private sector has been a criminal offence in Cyprus since before independence. The Prevention of Corruption Act (Cap. 161) provides for a punishment of up to two years” imprisonment and/or a fine independently of the context in which corruption is committed; however, this is increased to imprisonment of up to seven years and/or a fine whenever the offence is related to «a contract or a proposal for a contract with the State or any Government Department or any public body or a sub-contract to execute any work comprised in such a contract». There is a useful evidential presumption in this law. Public officials who receive money, gifts or any other consideration from a person holding or seeking to obtain such a contract are presumed to have acted corruptly unless they prove otherwise.

 

Ιn addition to the Prevention of Corruption Act, corruption-related offences are included in the Criminal Code (Cap. 154), which also dates back to the colonial times. These are active and passive official corruption, extortion by public officers, the receipt of property by public officers to show favour, the pursuit by public officers of private interests in certain circumstances, false claims by officials and abuse of office.

Moreover, under Law 51(I)/2004 on the Illicit Enrichment of Certain Public Officials – created the offence of illegal acquisition of property by senior officials such as the President, Ministers, Members of Parliament, the judges, all the independent officials, mayors, the chief and assistant chief of the Police and the National Guard and others. The same law provides for the confiscation of assets that have been acquired in breach of its provisions.

Of course the Cyprus Republic has ratified in time all the existing conventions against corruption, including in 2000 the Council of Europe Criminal Law Convention on Corruption, in 2004 the Council of Europe Civil Law Convention on Corruption, in 2006 the Additional Protocol to the Criminal Law Convention and in 2008 the United Nations Convention against Corruption.

As promised, without getting into details these conventions include a number of measures to be taken by the countries to fight at national level corruption. These include:

1.1.     the criminalization in national level of bribery. Both active bribery, that is the promising, giving or offering, directly or indirectly, an undue advantage for himself or anyone else, as well as and passive bribery, that is the request and receipt, directly or indirectly, of any undue advantage for himself or anyone else. Bribery in the public sector as well as in the private sector.

2.2.    Measures to ensure co operation both in national level (between various public officials) and mutual assistance in international level (between the competent authorities of the countries) and to protect the collaborators of justice. Saying that I remembered one of the last cases which were investigated by the Cyprus police regarding the bribery of a high public official. A public official gave testimony in which same allegations had to be examined. Before the examination and because of the media interest in the case the Assistant Attorney General in his statement to the media he specially noted that a criminal offence is being made not only by those public officials who accept the bride but also by those who offer it. I wouldn’t say that this is a nice way to persuade citizens to come forward give evidence and being protected.

3.3.    Effective remedies, i.e. financial compensation, for persons who have suffered damage as a result of acts of corruption, giving a limitation period of 5 years. The damaged person has the right to initiate an action against a person or the State, for acts done by public officials in the exercise of their function.

4.4.    It provides measures for the protection of employees who report in good faith their suspicions of corruption in the private of public sector.

Ιn 1998 corruption was made a predicate offence for the purposes of the money-laundering legislation. This Law was further developed and modernized by the Prevention and Fight of Money Laundering Act of 2007. Any act of legalizing earnings obtained by an illegal act is criminalized with maximum penalty 14 years of imprisonment and or 500,000 euro.

A very interesting amendment in the Criminal Code in 2001, criminalized under article 105A, any attempt to influence any authority, commission, collective body or member thereof, or any public officer in the performance of their duties in relation to recruitment, appointment, promotion, placement, transfer and exercise disciplinary powers in government agency. On conviction the accused is liable to imprisonment not exceeding twelve months or a fine not exceeding 1710 euro or both sentences:

Furthermore, any member of an authority, committee, collective body or any public officer has been approached for the purpose of being influenced, as indicated in the preceding paragraph and failed to denounce the person who has approached him to the Police within three days of the commission, is liable to imprisonment not exceeding twelve months.

Cyprus, is active in participating in the work carried by international organizations. It is to be mentioned the participation of Cyprus in the Multiplicinary Group of Corruption of the Council of Europe and the Group of States Against Corruption , well known as GROCO, of which it is a founding member.

As GRECO Report of Dec. 2001 indicated:

“Cyprus appears to belong to the group of the more fortunate European countries that are not particularly affected by corruption”, and that:

“ is a country with a sound administrative and legal system and public officials of high professional and personal qualities”.

2. Regulations towards transparency of public life

A system should be established for the declaration of assets and interests of high State officials, including Members of Parliament, the President of the Republic, the Attorney-General and Ministers.

Some pitfalls in the manner in which some laws are applied. For example, the GET was informed that section 66 of Law 1/1990, which creates an obligation for civil servants to declare changes in their income and assets, is not applied in practice.

3. Bodies/Institutions Involved In Anti-Corruption Activities

These involve:

–          The Courts

–          The Auditor-General and the Audit Office

–          The Accountant-General and the Treasury

In Cyprus after …. there is a special unit for the investigation of complaints against corrupted police officers, the ….. which was established in …. The last results from the investigations carried out by this department and the disciplinary proceedings which followed show an era of change in the High ranking Police officials’ approach…..  Furthermore, under Law … a special independent organization was established which aims to …..the police .

3.2. The Attorney-General and the Law Office

 

Under the Republic the Office of the Anti Money Laundering Department …

However, there is no accountability of the decisions of the Attorney General to prosecute or not a case. There were cases which rise huge questions of the reasons that drove the Law office of the Republic to discontinuance a case.

Furthermore, the institutions which by the Constitution is synonymous to transparency and accountability can not be represented by people who have even the slightest suspicion of acquiring benefits in controversial procedures. And what is most irritating is that nothing is being to show to the public that at least this money were really used for the purpose that were taken. And I prefer to say no more.

3.6 The Tender Boards.

In order to guarantee respect for certain standards in the Public Service, the Cyprus Constitution makes provision for a Public Service Commission, the members of which is appointed for a period of six years by the President of the Republic and cannot be removed from office except on the same grounds as a Supreme-Court judge. The Commission is responsible for the filling on the basis of objective criteria of the vast majority of vacancies (first appointment and promotions) in the Public Service of the Republic.

Notable exceptions are the supreme court judges, the chief and assistant Chief of Police, the Attorney-General, the Auditor-General, the Accountant-General and their Deputies, who are appointed by the President of the Republic. The Commission is also the disciplinary authority for serious breaches of the Code of Ethics for public officials, which is incorporated in the Public Service Law. Whenever a public official appointed by the Public Service Commission (and the Accountant-General as well as the Deputy Accountant-General) commits a disciplinary offence, the Commission can impose on him/her a variety of sanctions ranging from a fine to compulsory retirement or dismissal.

4. Observations

Cyprus is also a relatively small country of 700,000 people and it cannot be excluded that the personal relations of trust that inevitably develop in societies of this size leads to the creation of conditions favoring corruption. In the case of Cyprus the risk of corruption taking larger proportions appears to be accentuated by certain traits of the country’s political culture. For example, the GET’s attention was drawn to the customer-provider type of relationship that exists between political parties and their voters, the pressures to which the holders of political office are increasingly subjected by powerful social and financial groups and the over-deferential attitude displayed by some categories of civil servants vis-à-vis political figures and members of their families.

Now does exist statutory provisions on the financing of political parties, apart from those on how the limited amount of public aid included in each year’s State budget is apportioned. However, it seems that no real control can be exercised over the funding of the political life of Cyprus. Nor are members of the House of Representatives subject to a Code of Conduct.

The major such weakness is its reliance on the reporting of incidents of corruption as the principal mechanism for triggering a criminal investigation. Reminding that corruption is a well-concealed offence, which is rarely reported, would be stating the obvious. What is, however, particularly striking in Cyprus is the absence of a clear domestic-law provision making it obligatory for civil servants to report suspicions of criminal offences. In the light of the above, the GET recommends that the law should be amended to place civil servants under a clear obligation to report suspicions of corruption offences.

The number of complaints against police officers is in general very low. The explanation for this could range from quasi-blind public confidence in the police service to lack of awareness or even absolute lack of confidence in the system.

The closer the social relations of a society, the more difficult it is to prove corruption. An official who gives a project to an entrepreneur with a particular reward could be trapped by allegations of corruption. However, it would be difficult to prove if the reward for his services was obtained in the form of donations, gifts or a job for their child.

Corruption: § can be resisted only by implying laws and regulations that follow the principles incorporated in the notion of transparency

Can be fought only by adopting transparency in the every day work of public and private sector, especially in the work of independent institutions, such as the Attorney General’s office, the Audit General’s office, the Public Servant Commission, etc.

Can be struggled only by public awareness and by media pressure towards the enforcement of the principles enshrine in the idea of transparency

Can be stopped only by enforcing methods to face Favouritism (κουμπαριλίκη), which refers to the normal human inclination to prefer associates, friends and family members and peers over strangers, and Clientelism, which is an informal relationship between people of different social and economic status: a “patron” (the boss, big man) and his “clients” (dependents, followers).

Corruption can be diminished:

By following procedures which empower accountability (answerability, controllability) , access to information, and Integrity system of control in public institutions and sector, which means devotion to a set of moral or ethical principles.

By following Successful law enforcement and anti-corruption strategies such as Whistle- blower formal procedures which are largely dependent upon the willingness of individuals to provide information and/or to give evidence. Whistle-blowers are people who inform the public or the authorities on corrupt transactions they have witnessed or uncovered and they require protection. The enforcement agencies should establish and take the necessary measures (administrative and legislative) to shield the informers from physical, social and economic retaliation. In that respect the witness protection program should be extended in practice to Whistle- blowers.

Transparency is the quality of being clear, honest and open. As a principle, transparency implies that civil servants, managers and trustees have a duty to act visibly, predictably and understandably. Transparency is considered an essential element of accountable governance, leading to improved resource allocation, enhanced efficiency, and better prospects for economic growth in general.

That is some of what we need to do in our everyday life, to fight effectively corruptıon which undermines the constitutional principle of equality and poisons public trust towards institutions, political life and the public sector.

As the 6th century philosopher Anacharsis said

«The laws are -often-like the spider’s net. If small flies or mosquitoes fell in are caught. But if bees or sphinxes fall in, they destroy the spider net and leave.[3]»

In the end, we can echo what Dantis, the Italian poet and philosopher of the 13th century , said:

“The laws exist but where is the hand that would apply them?”[4]

 

 

 

 

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[1]

[2] United Nations, Revised draft United Nations Convention against Corruption, March 2002, V.02-52865(E), article 2.

[3] “ Οι νόμοι- πολλές φορές- μοιάζουν με το δίχτυ της αράχνης. Αν σε αυτό πέσουν μύγες ή κουνούπια πιάνονται. Αν όμως πέσουν μέλισσες ή σφίγγες, το ξεσκίζουν και φεύγουν.»)

[4] Οι νόμοι υπάρχουν, αλλά που είναι το χέρι που θα τους εφαρμόσει;»