Independent Anti-Corruption Authority - Independency and Efficacy

On 26.03.2021 our partner/Director, Ms. Maria Raphael, member of the Anti-Corruption Committee of Cyprus Bar Association, has submitted an article at the legal online portal dikaiosyni.com providing her opinion on the independency and efficacy of the Anti-Corruption Committee as per the relevant Cyprus Bill which establishes an Independent Anti-Corruption Authority and outlining her submission and proposal made before the Parliamentary Committee on Legal Affairs on 17.03.2021 introducing an alternative manner of appointment of the members of the Authority.
 
The article in Greek can be found here whereas an English translation of the article is provided below:
 


Independent Anti-Corruption Authority - Independency and Efficacy
By Maria Raphael

The much-debated Bill before the Parliamentary Committee on Legal Affairs for the establishment and operation of an Independent Anti-Corruption Authority is put forward again and revised for the umpteenth time before it on 26.03.2021.

With the present, I will not attempt to analyse in its entirety the compatibility of the Bill with the National Anti-Corruption Strategy and the internationally recognised principles and standards surrounding a properly composed, independent, functional and effective Anti-Corruption Authority, but I will selectively refer to some of its important aspects.

Manner of Appointment of the members of the Authority, Independency and Efficacy
The most recent version of the Bill dated 19/03/2020 provides in article 3(1) the following:
“An Independent Anti-Corruption Authority is established, consisting of three (3) members, which are appointed by the Council of Ministers on the recommendation of the Minister of Justice and Public Order, which proposes twice the number for the position of a Transparency Commissioner, who will preside over the Authority and perform duties of Chairman and quadrable the number for the position of two (2) Assistant Transparency Commissioners for a period of six (6) years”.

On 17/03/2021, representing, as a member of the Anti-Corruption Committee, the Cyprus Bar Association during the meeting of the Parliamentary Committee on Legal Affairs at the discussion of the Bill, which at the time referred only to the power of the Council of Ministers to appoint the members of the Authority, I submitted on behalf of the Association the following suggestion, which was very flexibly readjusted by the Ministry of Justice, as per the above article.

Specifically, the Cyprus Bar Association suggested the introduction of mechanisms and procedures, that will precede the appointment of members by the Council of Ministers in order to enhance the transparency during the selection of members and the assessment of their suitability in an impartial and independent manner. Τhe recommendation was triggered by the guidance obtained from the relevant legislation governing Greek law which contains a framework of rules that ensure the integrity of the process surrounding the appointment of the Board of Directors of the National Transparency Authority. The proposal before the Parliamentary Committee on Legal Affairs can be summarised by the adoption of the following procedure:

  1. Notice of an open competition for submission of interest to fill the vacancies of the Authority.
  2. Establishment of an Independent Selection Committee consisting of independent officials and/or personalities of recognised prestige.
  3. by the Independent Selection Committee of a shortlist of successful candidates based on predetermined and objective criteria, which will consist of twice or three times the number of candidates compared to the number of relevant positions and its submission to the Council of Ministers. In case the candidates are less than twice or three times the number of positions, all the candidates will be included in the aforementioned list.
  4. Appointment of candidates by the Council of Ministers based on the established list by the Independent Selection Committee.
It is my opinion that the above suggestion, if adopted, would have greatly enhance the transparency of the selection of the members of the Independent Authority and would ensure, in essence and not only in form, their appropriateness, impartiality, neutrality, integrity, apolitical stance and independence from government bodies.
The readjustment of the above suggestion of the Cyprus Bar Association by the Ministry of Justice and Public Order through the composition of members from the said Ministry - adding in fact a process in which once again the the executive authority is involved - instead of an Independent Selection Committee as per the suggestion of Cyprus Bar Association, does not, in my view, have the same beneficial consequences and does not terminate or appease the concerns of public opinion, which expects that such mechanisms will be established so as to promote the integrity of members’ election and the substantial independence of Authority and its members.

Generally, an independent authority appointed directly by the Council of Ministers or the President of the Republic and without the participation of the Parliament or without any intermediate selection process does not necessarily constitute a substantially not independent and ineffective authority. The substantive independence of an authority can also be achieved by the assignment of clear but broad terms of mandate and decisive responsibilities (regulatory and sanctioning), the provision of sufficient and satisfactory resources, the absence of hierarchical control or supervision by the central administration, and its entrenchment with personal and functional independence equal to that of judges, as well as organisational independence (financial and administrative).

The positive elements of the Bill under discussion in relation to the independence that is attempted to be granted to the Authority cannot be ignored. The Authority and its staff do not seek or receive instructions from governmental organs, being excluded from any administrative supervision. The term of office of its members is institutionalised, predefined and long-term (six years), the members of the Authority may not be dismissed or resign except for limited reasons and in the manner in which the Judges of the Supreme Court are dismissed or resign, while the Authority itself appoints, controls and supervises its employees who are referred to as inspection control officers.

The International standards, of course, note the importance of adopting transparent and commonly accepted procedures for the appointment and dismissal of members of an Independent Anti-Corruption Authority, proposing the involvement of Parliament.

Nonetheless, the involvement of the Parliament in the process of appointment (and in this connection to the dismissal) of the members of the Authority, which would have ensured the maximum possible common acceptance and has been proposed by some interested parties, would, in my position, be contradictory to the well-established constitutional principle of separation of powers since the legislative power is constitutionally limited only to its legislative framework, while in a series of court decisions of the Supreme Court it was decided that the legislative power shall not intervene in the fulfilment of the administrative framework of the executive power. The election of members of an Independent Authority by the Parliament would have entail elements of administrative action going beyond the limits of the exercise of its powers, as the independent authorities continue to be administration organs. It is for this reason that the full adoption of the Greek model, which provides for the submission of the successful candidates to the competent Committee on Institutions and Transparency of the Parliament for approval, would be incompatible with Cypriot constitutional law.

Returning to the suggestion for an open competition and the establishment of a list of members by an Independent Selection Committee, it seems that under the circumstances this is a constitutional, alternative, transparent and credible process that would strengthen the independence of the authority, since at least in this way, members will be selected and nominated by independent and non-governmental bodies.

Powers and responsibilities of the Authority
I would like to state briefly that the Authority, as it has been constructed with the Bill under discussion, mostly acquires responsibilities and powers which are related to actions aiming to prevent corruption through the coordination, monitoring and evaluation of actions of the public, wider public and private sector in matters of prevention and fight against acts of corruption and potential corruption, the preparation and implementation of programs-strategic plans for the prevention and fight against such acts and other similar activities.

Τhe responsibilities and powers conferred to the Authority by the Bill are confronted with doubt and concerns as they attempt ineffectively to give to the Authority a partly repressive role and render it a “Multi – Purpose Agency with law enforcement power’’ type of Authority i.e. an authority with both a preventive and a repressive role while whereas neither absolute investigative powers nor powers to impose administrative fines are conferred to the Authority. As it is customary in Europe, the Anti-Corruption and Multipurpose Authorities have at least investigatory powers as well as powers to impose administrative fines in the event of administrative offences (see, the Slovenian Authority whose investigative powers are limited to administrative matters).

Despite the assignment of powers to the Authority to receive and investigate complaints, both ex officio and following a complaint, and the relevant collection and processing of information and personal data from all departments and managers, the investigative powers conferred on it are incomplete, fragmented and crippled: When a criminal investigation by the Police or the Criminal Investigator for acts of corruption begins, the Authority does not interfere in the Police work, it does not start its own investigation and in fact terminates any of its own parallel actions. When the Authority establishes the possibility of commitment of a criminal offense, it prepares a report and remits it to the Attorney General of the Republic (if of course it is allowed to complete the investigation and no procedure is initiated by the Police or Criminal Investigator).

The deficiency of the investigative/interrogation powers of the Authority is attempted to be covered by the Anti-Corruption Unit announced by the Ministry which will act under the guidance of the Attorney General and the Assistant Attorney General and will be comprised by Legal Service officers and members of the police force. Its sole purpose will be the comprehensive investigation of criminal offenses against corruption, but it does not substitute the apparent deficit. The Independent Authority is still stripped of any substantive and repressive powers and powers are being delegated to a new Law Enforcement Unit which will not be independent and will not fulfill the identified need, on the basis of the National Anti-Corruption Strategy, of strengthening society’s sense of good governance, accountability and transparency which arises by the non-trust of the society and the citizens to governmental, non-independent Law Enforcement Authorities. Such units have been set up in Western European countries such as England where existing institutions have generally been deemed efficient and adequate in the fight against corruption.

Nonetheless, taking into account the inclusion of the establishment of the Unit in the action plan against corruption, it would have been more appropriate for the bill for the establishment of an Independent Authority against Corruption to be presented for discussion in the Parliamentary Committee on Legal Affairs simultaneously with the bill under which the Unit would have been established in order for the action plan to be assessed collectively and not in parts.

In conclusion, my position is that despite the Independent Anti-Corruption Authority's high-profile title, by no means does it satisfy the expectations of society’s citizens in terms of the scope of its responsibilities and powers. It is, therefore, necessary to redefine the broader approach and philosophy of the Bill in order to ensure the sufficient effectiveness of the Authority, particularly in regard to its repressive action and to strengthen its independence.

Lately our society is going through a crisis of institutions and values. The phenomena of deterioration and corruption have eroded common sense, while they have irreparably stigmatized our homeland both at European and international level. The responsibility of the state and of the senior state officials to fight corruption, as well as the conditions that nurture them, seems more imperative than ever.
The introduction of anti-corruption legislation should not be "standard" but essentially effective. Any provision, which aims at the effective prevention and suppression of corruption, strengthens the social sense of trust while sending the message that our country is determined to leave behind the negative residue of the past.
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