1. Introduction
1. The rapporteur welcomes the report by Ms Mailis Reps
aiming to boost anti-corruption action Europe-wide, as well as the
decision of the Secretary General of the Council of Europe to make
the fight against corruption one of the leading activities of the
Organisation and a budgetary priority for 2014-2015. In his recent communication
“Democracy, Human Rights and the Rule of Law in Europe: strengthening
the impact of the Council of Europe’s Activities”, released on 7
May 2013, the Secretary General detailed his will for action by pointing
to a “lack of effective supervisory mechanism regarding the funding
of political parties and election campaigns; ineffective application
of legislation due to lack of detection, prosecution and punishment
of corruption; limited criminalisation of bribery of parliamentarians
and other members of domestic assemblies, excessive immunities,
...”.
2. In recent years, the revelation of repeated scandals in numerous
Council of Europe member States has contributed to citizens’ increasing
distrust of politicians and, by extension, of the political institutions.
It is interesting to note that in France the word for “a politician”
has become pejorative and has been replaced by other synonyms. Moreover,
the distrust initially centred on the political forces in power
is now related to political forces and institutions as a whole notwithstanding
the political alternation which may occur.
Corruption, aggravated
by numerous politico-financial scandals which almost all European
countries have faced over the last decade, is one of the factors
fuelling the lack of confidence towards the political class and
democratic institutions. The Assembly has been sounding the alarm
about this since 2007.
Corruption in decision-making hurts,
but it could also kill when health risks are voluntarily underestimated,
permission for exploitation is delivered amid security gaps and
so forth.
3. The political area has been for centuries a place where money
has converged with power. The close ties between political parties,
business, trade unions and government institutions have existed
for a long time. However, in the context of a difficult economic
context, unemployment and impoverishment, the level of tolerance
of the population towards the misuse of power by politicians has
become low. More than ever before the political elite and people’s
representatives have a duty to set an example.
4. Ironically, lack of confidence and mistrust is also a positive
sign as it bears witness to citizens’ political maturity. Numerous
accountability initiatives have been put in place by civil society.
People are more attentive to discordance between election promises
and subsequent policies and know their rights better.
The Council of Europe has to use this
momentum to strengthen its efforts in fighting corruption, though
some adjustment may be required in order to be able to anticipate,
prevent, and react quickly and adequately to challenges.
5. The rapporteur would therefore like to take stock of the Assembly’s
initiatives aimed at greater transparency of its members, before
coming up with some additional proposals concerning the Council
of Europe institutional action to be specified in the draft recommendation
and the draft resolution. The present opinion also allows the Rules
Committee to provide a number of observations on the programme of
the Organisation for 2014-2015 as far as the fight against corruption
is concerned. The programme was presented by the Secretary General
on 30 April 2013 leaving the Assembly unable to comment on it when
debating
Opinion 284
(2013) on budgets and priorities of the Council of Europe for
the biennium 2014-2015.
2. Assembly work on transparency, accountability
and integrity
6. Recalling the Assembly’s previous resolutions and
recommendations dealing with different aspects of the fight against
corruption referred to in the draft resolution presented by the
Committee on Legal Affairs and Human Rights, the rapporteur would
like to shed light on the Assembly’s work regarding its own rules
on transparency, accountability and integrity. When dealing with
questions of democracy and the fight against corruption in the 2000s,
the Assembly underlined on several occasions the need for parliamentarians
to declare financial interests. As a consequence,
Resolution 1554 (2007) on conflict of interest was adopted in 2007 introducing
into the Assembly’s Rules of Procedure an obligation for all Assembly
rapporteurs to orally declare any professional, personal, economic
or financial interests which might be considered relevant or conflicting with
the subject of the report. Moreover, all members are encouraged
to make an oral declaration when speaking on a topic on which they
have a professional, personal, financial or economic interest which
might be considered as relevant or conflicting. In 2006, a code
of conduct for the Monitoring Committee co-rapporteurs was adopted.
Subsequently, it was decided to set up a framework regulation for
all Assembly members to address issues of gifts, provide for suitable
safeguards against acceptance of hospitality in return for political favours
as well as to regulate the activities of interest groups. The code
of conduct for the Assembly members was adopted in 2012.
Having regard to the different regulation
levels existing in national parliaments and the Assembly’s multicultural
environment, the code of conduct brought together the principles
and policies which could be shared by all members regardless of
their ideological or political position. It is composed of general principles
which provide a benchmark for expected behaviour, and a set of rules
which notably deal with issues such as conflict of interest, requiring
such conflicts to be resolved in a way that protects public interest,
or disclosed if not resolved, and putting a ban on paid advocacy.
Moreover, gifts and similar advantages received by members have
to be registered with the Secretariat of the Assembly if their value
is higher than 200 euros.
An
enforcement mechanism has also been set up giving the President
of the Assembly a leading role in launching investigations and deciding
on sanctions, based on the seriousness and the reliability of information regarding
fraudulent conducts.
7. However, the requirement to declare or register gifts, hospitality
and conflict of interest is not a magic solution.
No
written rules can prevent shenanigans if a person is not willing
to comply with rules in good faith. Therefore, the primary duties
of elected representatives which may lead to restoring public confidence
amid the tumultuous context of crisis, is to be at the forefront
of the fight against corruption by setting an example and not contravening
the rules of fair play on which the European model of democracy
is based.
8. The Council of Europe’s Group of States against Corruption
(GRECO) touched upon the very functioning of the political system
when it decided to address the issues of the financing of political
parties and corruption in parliaments in the framework, respectively,
of its Third and Fourth Evaluation Rounds. The first evaluations of
the Fourth Round have already identified some effective prevention
measures such as the increasing transparency of the parliamentary
process and the greater use of new technology to ensure greater
public access to draft laws and to parliamentary business; as well
as some problematic areas, notably the participation of interest
groups in parliaments’ work and parliamentarians’ accountability
with regard to contact with such groups.
9. The issue of lobbying was also studied by the Rules Committee
during the elaboration of the code of conduct for Assembly members.
Most modern parliaments are moving towards greater control of outside influence,
recognising that abuses can occur. A recent survey claimed that
“about 80% of all amendments launched” in the European Parliament
stemmed directly from interest representatives and “the inspiration behind
20% often came from outside Parliament”. A number of parliaments
have introduced a register for lobbyists. However, a 2009-2010 study
by Transparency International France pointed to the mismatch between the
number of groups registered officially and the number of groups
which were genuinely involved in the preparation of a report. Moreover,
an attempt by some MEPs to introduce a legislative footprint requiring
names of those who contribute to the drafting of a report to be
made public met with opposition from several parliamentarians who
wanted to protect their source of information.
10. This shows that lobbying is a complex issue and that the modalities
of interaction between members of parliament and interest groups
are undergoing a transformation aimed at exploring how lobbying
and informed decision making can best be balanced with the need
to safeguard public interest and ensure a level playing field among
all stakeholders. New rules have been introduced in some European
countries but their impact is still to be measured.
The rapporteur recalled
the Assembly
Resolution
1774 (2010) on extra-institutional actors in a democratic system
following which the Venice Commission has decided to carry out a
special study on the topic,
as well as the
Recommendation 1908 (2010) on lobbying in a democratic society (European code of
good conduct on lobbying). The Assembly is committed to continuing
to identify corruption trends in this area, reflecting upon suitable
solutions and keeping its Rules of Procedure up to date.
11. As GRECO recently underlined, there is “a growing demand in
Europe and elsewhere for the establishment of regulatory frameworks
in respect of lobbying”. In the rapporteur’s view, it would be regrettable if
the Committee of Ministers did not use this momentum to consider
the feasibility of a study in light of which a need for further
standard-setting work could be considered. The issue of lobbying
represents a core expertise of the Council of Europe, where it can
take advantage of the extensive work already done and the solid
data collected by its organs (GRECO, Venice Commission), and make
use of its excellent network of experts representing governments,
parliaments, interest groups and NGOs, to acquire high visibility
and play a leading role among other international institutions by
adopting the first comprehensive document on lobbying.
3. Inventory of the Council of Europe Programme of
Action against corruption
12. As rightly pointed out by Ms Reps in her report,
corruption is an enormous obstacle to the realisation of human rights
protection; it leads to a lack of democracy and the ineffectiveness
of the rule of law. The ongoing reform of the Council of Europe,
launched by the Secretary General aimed at reinforcing the impact
of Council of Europe activities, provides an opportunity to discuss
whether the Council of Europe needs to reconsider its anti-corruption
strategies, given the multidisciplinary dimension of the problem.
3.1. New institutional architecture
13. Today, the anti-corruption action of the Council
of Europe is divided amongst the standard-setting activities run
by intergovernmental committees, technical assistances implementing
mainly the European Union–Council of Europe joint projects and monitoring
mechanisms with the leading role held by GRECO which involves all
47 Council of Europe members, as well as the United States of America
and Belarus (and Kazakhstan as a new potential partner). Many Council
of Europe organs are working towards the eradication of corruption
from different perspectives and in a mutual enriching environment.
It is to be
regretted that such a potentially comprehensive approach is not
used to its full extent. Indeed, corruption represents a multifaceted phenomenon
rooted in a non-competitive political environment, a weak system
of checks and balances, insufficient opposition rights, lack of
transparency in the decision-making process, including unfair lobbyist activities,
and unclear regulations of political parties and election campaigns.
A strong and tailored approach to a given problem would require
a normative dimension, proper risk assessment and implementation strategies
being envisaged simultaneously throughout the three pillars of government.
Such a co-ordinated, transversal approach has already been adopted
by the Council of Europe in such domains as counter-terrorism, child
protection and Internet governance. Moreover, the Council of Europe
has to regularly take stock of potential areas of co-operation with
other international entities such as the United Nations Convention against
Corruption (UNCAC) review mechanism, the Organisation for Economic
Co-operation and Development (OECD), the EU anti-corruption reports
and the work on ethics of parliamentarians of the Organization for
Security and Co-operation in Europe (OSCE) in order to reinforce
view sharing and avoid the duplication of efforts.
3.2. A need for a new anti-corruption Council of Europe
action plan
14. The Council of Europe’s anti-corruption strategy
goes back to the 1990s and is based on “The Programme of Action
against corruption” adopted in 1995 and “the Twenty Guiding Principles
for the Fight against Corruption” adopted in 1997. “The Programme”
was drafted by a Multidisciplinary Group on Corruption and included
a detailed working programme for 1996-2000 encompassing the drafting
of the Criminal Law Convention on Corruption
and the
Civil Law Convention on Corruption
with
possible additional protocols, the European Code for Public Officials
and a recommendation on the
financing of political parties.
Today, the
legal instruments in force represent a benchmark and inspire national
legislations. In addition, several studies listed in the Programme
of Action in areas such as immunities, the role and responsibility
of journalists and criminal law sanctions and measures have already
been carried out by Council of Europe bodies.
15. In spite of its numerous anti-corruption tools, corruption
is still very present in many member States. Therefore, it is necessary
to take stock of the current context and to address today’s challenges
with regard to member States’ needs and requirements. The proposed
inventory and the consolidation of the anti-corruption plan is in
line with the Secretary General’s proposal for better evaluation
and processing of data to allow for the detection of topics of general
concern or a specific country priority and to set an action accordingly.
While implementing its anti-corruption
standards, the Council of Europe shall consider governments’ strategic priorities
and valorise targeted assistance programmes leading to results being
proven sustainable over time, while, at the same time, focusing
on long-term perspectives. Anti-corruption efforts often take generations
to bear fruit; emphasis must therefore be placed on maintaining
these efforts.
16. If need be, the current monitoring mechanisms have to be given
the necessary competences to contribute efficiently and credibly
to the implementation of the new action plan. For instance, it should
be noted that today GRECO’s scope of action is based on a mandate
negotiated in 1999.
Therefore,
the GRECO statute adopted in 1999 could be amended to fit the new
Council of Europe anti-corruption strategy and to respond to current
criticism pointing to the limited visibility of the intergovernmental
GRECO evaluation process and its follow-up mechanisms, the limited
monitoring areas and the inability to identify corruption trends
due to the lack of comparative analysis.
4. Co-operation with the European Union
17. In 2007, the Council of Europe and the European Union
concluded a Memorandum of Understanding inviting both institutions
to develop mid- and long-term common strategies and co-ordinating
operational activities in priority areas, including the fight against
corruption. The current results of GRECO’s evaluation and compliance
procedures serve as a source of input to European Commission progress
reports for candidate and potential candidate countries as well
as progress reports on the implementation of the European Neighbourhood
Policy Action Plans.
4.1. European Union membership in GRECO
18. The need for more synergy between the two organisations
has been proclaimed several times by both the Secretary General
of the Council of Europe and the President of the Assembly. Formal
participation of the European Union in GRECO has reappeared on the
agenda since the adoption by the European Union of the 2010 Stockholm
Programme and publication of the European Commission’s “Anti-corruption
package” in June 2011. This has been welcomed by GRECO whose statute
has provided for such participation from the outset. However, the
controversy was recently triggered at EU level by the Commission’s
recent Communication on participation in GRECO
where the European Commission proposed
a two-stage approach requesting firstly “a full participation status”
which would grant the European Union involvement in the evaluation
of its member States and/or candidate countries without however
being itself subjected to GRECO’s evaluation procedure.
19. This issue has to be resolved soon so that both organisations
can start concrete talks on the precise format and content of such
participation. Participation of the European Union in GRECO would
contribute to more co-ordinated anti-corruption policies in Europe
and strengthen the impact of the European Union’s and GRECO’s respective
anti-corruption endeavours. The rapporteur recalls that the 2007
Memorandum of Understanding confirmed the role of the Council of
Europe as the benchmark for human rights, democracy and the rule
of law in Europe, stipulates the need for coherence between the
two organisations’ legal norms in the fields of human rights and
fundamental freedoms. Moreover, while decisions taken at European
Union level have an increasing impact on the European continent
due to the increase in the European Union’s membership and legal
competencies, the European Union itself has shown itself not immune
to corruption: according to a European Commission study, 73% of
those interviewed in the EU-wide polls consider that there is corruption within
the European Union institutions.
Therefore, there is general expectation
that transparency rules which the European Union requires from its
member States would also need to be applied within the EU institutions. This
would be an additional good reason for the European Union to join
GRECO as a full member.
20. The rapporteur is concerned by the decision of the European
Commission to put in place an additional anti-corruption monitoring
mechanism which would generate additional expenses amid the reduction
of the EU budget and strengthening of austerity policies in member
States.
Moreover,
the contribution of EU member States to this mechanism remains unclear.
A revision of the GRECO mandate would be necessary to bring the European
anti-corruption activities under the same roof, making GRECO a comprehensive
evaluation but also risk-assessment mechanism and a European forum
for sharing information and best practices in Europe, equally involving
all parties and providing for a sound compliance procedure.
4.2. Joint Council of Europe–European Union programmes
aiming at strengthening good governance and the fight against corruption
21. First launched in 1993, joint programmes between
the Council of Europe and the European Union have become one of
their major co-operation instruments in pursuit of the common goal
of promoting human rights, fundamental freedoms and the rule of
law in Europe. Confirming a long-standing trend, last year joint programmes
continued to be the largest source of funding sustaining the Council
of Europe’s co-operation and technical assistance activities. The
EU evaluation process of the Council of Europe–European Union co-operation
underlined the Council of Europe’s ability to mobilise expertise
related to the sectors in which it specialised.
The
report welcomes a reflection process being carried out by the Council
of Europe and the European Union regarding a more structured form
of joint co-operation programmes in the EU financial framework 2014-2020
including anti-corruption fields. A shorter length of the preparatory
phase and more flexibility would allow prompt support for GRECO
recommendations within the request period following adoption of
the country report. The rapporteur points to the Assembly’s calls
on the Secretary General of the Council of Europe to negotiate a
partnership with the European Union for the establishment of a stable, sustainable
system for financing the joint programmes and the need for a parliamentary
dimension to be included in them.
5. Avenues to improve Parliamentary Assembly action
against corruption
5.1. Strengthening co-operation in the field of financing
of election campaigns
22. In its
Opinion
284 (2013) on budgets and priorities of the Council of Europe for
the biennium 2014-2015, the Assembly called for the need to find
synergies in order to contribute to the priorities set up within
the Council of Europe, provided they are consistent with the statutory
rules of the Organisation. Assembly members participate on a regular
basis in the work of several organs dealing with corruption issues.
The
relationship between the Parliamentary Assembly and the Venice Commission
is an example of a success story, since an important number of corruption
risks are closely linked to the constitutional order, a weak separation
of power and an inefficient mechanism of checks and balances. The
election field is the area where co-operation between the two organs
has become regular. A memorandum on the election legislation of
a particular country, highlighting the most important and problematic
issues, is prepared for the attention of the members of Assembly
election observation missions, and a member of the Venice Commission
can be invited to join the mission as legal adviser. Moreover, if
a report of an election observation mission points to problems related
to election legislation, the Bureau of the Assembly may invite the
Venice Commission to examine ways to improve this legislation.
The
Assembly is grateful to the Venice Commission and its experts for
the excellent co-operation forged on the ground during the observation
of parliamentary or presidential elections. Such a tandem allows
the Council of Europe to speak as one voice, raise the profile of
observation missions and reinforce the credibility and the authority
of recommendations.
23. The rapporteur would like to stress that compliance and evaluation
reports released in the framework of the Third Evaluation Round,
dealing among others with the transparency of party funding, have
allowed GRECO to acquire extensive expertise and set up an important
database regarding election campaign legislation and its practical
implementation. Therefore, in order to strengthen the complementarity
between the bodies of the Council of Europe and to improve the implementation
of the recommendations contained in the reports of election observation
missions, patterns for co-operation could be established between
the Parliamentary Assembly and GRECO allowing for, among others,
the preparation of a memorandum drawing the attention of members
of an election observation mission to the specific issues regarding
the funding of an election campaign in a particular country and
allowing the participation of a GRECO member in observation missions.
5.2. Gender mainstreaming
24. In 2012, GRECO initiated a reflection process inspired
by the gender equality policies of the Council of Europe, notably
as regards gender mainstreaming in policy development, to look into
a possible gender dimension of corruption. In the international
field, the issue of gender and corruption is being taken seriously in
the context of development and aid, and particularly within the
context of women’s rights, the impact of corruption on women and
the relationship between levels of corruption and women’s participation
and representation. In June 2012, a gender rapporteur was appointed
by GRECO to ensure better communication between GRECO and other
Council of Europe bodies on issues of gender equality and gender
mainstreaming.
25. The rapporteur would therefore like to encourage gender mainstreaming
as an aspect of corruption prevention strategy and, more broadly,
as a way of strengthening democracy and the rule of law to the benefit of
all citizens, the goal towards which the Assembly is constantly
working.
5.3. Reinforcing the parliamentary dimension of the
fight against corruption
26. Several intergovernmental organisations and international
initiatives have their own parliamentary dimension. Besides granting
democratic legitimacy to an action, the parliamentary dimension
also has a practical implication given that several areas may fall
outside the scope of immediate government action. The Parliamentary
Assembly has already developed parliamentary support for the Council
of Europe intergovernmental campaigns to combat violence against
women and to stop sexual violence against children. Moreover, regular
hearings with heads of national delegations regarding the (non-)implementation
of judgements of the European Court of Human Rights are organised
by the Committee on Legal Affairs and Human Rights, providing a
contribution to the conventional implementation mechanism led by
the Committee of Ministers.
27. In the rapporteur’s view, the Parliamentary Assembly could
contribute to national anti-corruption efforts by,
inter alia, increasing the visibility
of existing common Council of Europe standards, exchange of best practices
and ways of implementing these standards through concrete proposals
for legislative and political action. Regular meetings during part-sessions
could be organised during which members would be informed by representatives
of the Council of Europe bodies, joint programmes or NGOs about
specific corruption concerns raised with regards to a given country
or corruption with regard to a specific topic (i.e. sport, natural resources,
climate change, politics, private sector and corporate liability).
It would allow members to become aware of the latest figures and
concerns as well as to mainstream anti-corruption policy in Assembly
actions in various domains. The rapporteur would like to particularly
stress the need for a better civil society and NGO involvement.
The Assembly has recently adopted a resolution
where
it has recognised the precious role of NGOs in raising people’s
awareness about the issues, making the victims’ voice heard and
promoting national and local policies.
6. Proposals
28. In the light of the above considerations, the Committee
on Rules of Procedure, Immunities and Institutional Affairs would
like to complete the draft resolution and the draft recommendation
submitted by the Committee on Legal Affairs and Human Rights by
the following:
- The principle
of the leadership and duty of exemplarity incumbent on members of
the Assembly needs to be emphasised.
- The Assembly’s commitment to continuing to detect new
trends regarding transparency and corruption risks in parliaments
should be underlined.
- The Committee of Ministers should be invited to reassess
and consolidate the Council of Europe strategy in the field of the
fight against corruption by taking stock of current achievements
and pitfalls, envisaging new priorities in line with the challenges
faced by member States today and empowering relevant Council of
Europe bodies such as GRECO to effectively implement the new strategy.
- The European Union should be invited to join the Criminal
Law Convention on Corruption and to accelerate the negotiations
on the participation of the European Union in GRECO in order to
contribute to more co-ordinated anti-corruption policies in Europe
and strengthen the impact of the European Union and GRECO’s respective
endeavours.
- The current European Union–Council of Europe partnership
in the field of joint programmes, including in the areas of the
fight against corruption, should be welcomed and the need for its
further consolidation and the inclusion of a parliamentary dimension
should be formulated.
- An invitation to GRECO should be launched by the Assembly
to strengthen co-operation between the two bodies, notably in the
framework of election observation missions, through a better exchange
of information regarding financing of election campaigns.
- The Committee of Ministers should be invited to launch
a feasibility study on lobbying, in the light of which further standard-setting
work should be considered.
- The GRECO study on incorporation of gender mainstreaming
into anti-corruption monitoring should be welcomed as a part of
the overall effort of the Assembly to strengthen democracy, the
rule of law and human rights for the benefit of all.
- The Parliamentary Assembly dimension in the fight against
corruption should be reinforced through the organisation of regular
meetings of Assembly members with representatives of the Council
of Europe bodies, joint programmes or NGOs, during which specific
corruption concerns raised with regards to a given country or a
specific topic of activities (i.e. sport, natural resources, oil
and gas, climate changes, politics, private sector and corporate
liability) could be addressed.