copy the linklink copied!11. Enforcement

Abstract

This chapter provides a commentary on the principle of enforcement contained within the OECD Recommendation of the Council on Public Integrity. It describes how enforcement mechanisms foster effective accountability, deter misconduct, and ensure compliance with public integrity standards. Supported by co-operation and exchange of information mechanisms at all levels, fairness, objectivity and timeliness are identified as key drivers for effective and transparent enforcement. In addition, the chapter addresses five commonly faced challenges related to enforcement: independence; lengthiness of procedures; complexity of procedures; fragmented collection of enforcement data; and publicity of enforcement data.

    

copy the linklink copied!11.1. Why enforcement?

Coherent and comprehensive public integrity systems include pillars not only for defining, supporting and monitoring integrity, but also for enforcing integrity rules and standards. Enforcement mechanisms are the necessary “teeth” of any country’s public integrity system, and are the principal means by which societies can ensure compliance and deter misconduct. If carried out in a fair, co-ordinated, transparent and timely manner, enforcement mechanisms can promote confidence in the government’s public integrity system, serving to strengthen its legitimacy over time and helping to instil integrity values in individuals, organisations and society as cultural norms (OECD, 2017[1]). Enforcement of the laws and regulations demonstrates that government is committed to upholding, and that public officials cannot act with impunity. Enforcing integrity standards also increases confidence that others will not violate them. In that sense, enforcement has a relevant behavioural function – the wish to reward commitment to a norm (indirect reciprocity) is matched by the desire to penalise relevant violations by others (negative indirect reciprocity) (OECD, 2018[2]).

The OECD Recommendation on Public Integrity calls on adherents to “ensure that enforcement mechanisms provide appropriate responses to all suspected violations of public integrity standards by public officials and all others involved in the violations, in particular through:

  1. a. applying fairness, objectivity and timeliness in the enforcement of public integrity standards (including detecting, investigating, sanctioning and appeal) through the disciplinary, administrative, civil, and/or criminal process;

  2. b. promoting mechanisms for co-operation and exchange of information between the relevant bodies, units and officials (at the organisational, subnational or national level) to avoid overlap and gaps, and to increase the timeliness and proportionality of enforcement mechanisms;

  3. c. encouraging transparency within public sector organisations and to the public about the effectiveness of the enforcement mechanisms and the outcomes of cases, in particular through developing relevant statistical data on cases, while respecting confidentiality and other relevant legal provisions” (OECD, 2017[3]).

copy the linklink copied!11.2. What is enforcement?

Public officials are commonly subject to three main typologies of legal responsibilities and their corresponding enforcement mechanisms in relation to integrity breaches – disciplinary, criminal and civil:

  • The grounds for disciplinary enforcement are based on the employment relationship with the public administration and the specific obligations and duties owed it. Breaching these obligations and duties leads to sanctions of an administrative nature, such as warnings or reprimands, suspensions, fines or dismissals.

  • Criminal enforcement of public integrity conduct refers to detecting, investigating and sanctioning serious misconduct that undermines principles enshrined in constitutional texts such as serving the public interest or impartiality of the public administration. Criminal breaches lead to conviction, other sanctions affecting personal liberties, and administrative sanctions. While some offences such as abuse of public office can only be committed by public officials, other offences could lead to more severe punishment due to the fact that they were committed by a public official (Cardona, 2003[4]).

  • Civil law mechanisms provide legal remedies for those who have suffered damage from acts of corruption, enabling them to defend their rights and interests, including the possibility of obtaining compensation for damages (Council of Europe, 1999[5]; United Nations, 2003[6]).

The scope of misconduct for the principle on enforcement includes breaches of integrity principles and duties of public officials that are usually – but not exclusively – contained in codes of conduct, as well as corrupt criminal conduct such as bribery or abuse of public function. While providing an overview of all enforcement systems, this principle emphasises disciplinary systems, whose enforcement plays an essential role within public integrity systems: it informs public officials’ daily work and activities more directly, and ensures adherence to and compliance with public integrity rules and values as defined in codes of conduct and codes of ethics. As well, disciplinary systems have the potential to identify integrity risk areas where preventive efforts and mitigation measures are needed.

There are a number of different tools and mechanisms that governments can use to achieve the goals set by the principle on enforcement, but regardless of the context the following features are essential components of a comprehensive integrity enforcement system:

  • Public integrity standards are enforced through disciplinary, civil, and/or criminal proceedings in line with the principles of fairness, objectivity and timeliness.

  • Mechanisms for oversight, co-ordination, co-operation and exchange of information between relevant entities and institutions are in place, within and among each enforcement regime.

  • Public sector organisations are transparent about the effectiveness of enforcement mechanisms and the outcomes of cases, while respecting privacy and confidentiality.

11.2.1. Public integrity standards are enforced through disciplinary, civil and/or criminal proceedings in line with the principles of fairness, objectivity and timeliness

The principle of enforcement sets fairness, objectivity and timeliness as essential components in enforcing public integrity standards, and calls on countries to apply them in all relevant enforcement regimes. Upholding fairness, objectivity and timeliness in investigations, court proceedings and rulings contributes to building or restoring the public’s trust in integrity standards.

Safeguarding fairness in the enforcement of public integrity standards

Fairness is key in safeguarding citizens’ trust in enforcement mechanisms and in justice generally. Adherence to fairness standards is particularly relevant in cases of integrity violations and corruption, which may have high political significance and impact. The concept of fairness is overarching, encompassing a number of general principles of law, such as access to justice, equal treatment, and independence of the judiciary. It also cuts across civil, criminal and administrative law. As a legal principle, fairness has substantive and procedural aspects. Substantive fairness encompasses the group of values and rights that should be granted at the outcome level and relate to human rights and legal equality. Procedural fairness refers to the legal guarantees provided in procedural law aiming to protect these values and rights, such as judicial independence, access to courts and timeliness of decisions (Efrat and Newman, 2016[7]). Substantive and procedural fairness are interdependent, as one cannot exist without the other (European Court of Human Rights, 2016[8]).

Various international legal instruments1 consider fairness a fundamental human right and lay out the key principles that should inform fair legal proceedings. The principles can be grouped in one of two categories, depending on whether they apply throughout enforcement proceedings or just in one specific phase (see Table 11.1).

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Table 11.1. Principles of fairness in legal proceedings

Principles applying throughout enforcement proceedings

• Guaranteeing equal treatment before the law.

• Safeguarding the defendant’s rights to legal advice according to their choice and their right to defend themselves.

• Respecting the defendant’s right to be presumed innocent, which is an overall guarantee applying from suspicion (investigation) to the stage of conviction or acquittal (OHCHR, 2003[9]). Investigations of misconduct in the workplace should be conducted with a neutral mind-set and not to prove the allegations (Ballard and Easteal, 2018[10]).

Principles applying in specific enforcement phases

Pre-ruling

• Providing access to information and specifically to the documents and the evidence supporting the allegations, in order to effectively enable defendants’ right to legal advice and to defend themselves.

• Ensuring access to courts, which provides a person with clear and concrete possibilities to address an offending act that interferes with their rights. The right of access to a court includes not only the right to bring an action, but also the right to litigation.

Rulings

• Respecting the principle of proportionality, meaning that the gravity of the imposed sanction should depend on the seriousness of the offence.

Post-ruling

• Providing the right to appeal. Especially in disciplinary proceedings where the first instance decision-making bodies are not always judicial in nature, defendants should be granted the right to appeal a decision before a judicial court.

Source: (Council of Europe, 1950[11]; EU, 2012[12]; United Nations, 2012[13]).

The application of some aspects of fairness, such as those considered core “criminal due process guarantees” (e.g. presumption of innocence, the right to legal defence, access to information), has specific nuances in disciplinary and civil proceedings. However, fairness in civil proceedings is explicitly mentioned in article 6(1) of the European Convention on Human Rights, and the European Court of Human Rights has ruled its applicability in disciplinary cases.2 Furthermore, some jurisdictions have established the extension of criminal procedural safeguards in disciplinary proceedings. For example, in Greece this applies to most criminal procedural safeguards as long as they do not oppose the provisions of the Civil Service Code and are aligned with the purpose of the disciplinary procedure. These include the right to remain silent, the presumption of innocence, the right to legal defence, the right to information, and the right to a hearing.3 Similarly, the German Disciplinary Law (Bundesdisziplinargesetz, BDG) establishes the application of several criminal procedural safeguards, such as the right to remain silent, the right to legal defence, the presumption of innocence, the in dubio pro reo principle and the timeliness principle.

Another dimension of fairness is the accountability of all those who are responsible for a breach of integrity. In cases involving private entities, the persons responsible for misconduct may hide behind hierarchical organisational models and complex decision-making processes (G20, 2017[14]). An enforcement framework that only sanctions natural persons may lead to public perceptions of impunity. Indeed, it could be difficult to attribute responsibility to one specific person when a complex, diffuse decision-making structure is in place. To that end, it is necessary to establish mechanisms for the prevention of wrongdoings and enforcement action taken against legal persons who conduct them. Effective, proportionate and dissuasive sanctions for entities, combined with appropriate incentives to comply with the regulatory framework, can help governments promote accountability in the private sector and incentivise private entities to uphold integrity standards as a shared responsibility within society (for more, see Chapter 5).

A comprehensive and effective sanctioning regime for private entities should be clear, fair and easily enforceable. It should encompass the liability of private entities under the civil, criminal or administrative enforcement regime with sanctions that could be monetary in nature, such as disgorgement or restitution of illicit profits and confiscation. Further economic and reputational sanctions could increase the deterrence effect, such as debarment from public tenders or public disclosure of enforcement efforts. Sanctions relating to the reputation of the private entity, such as publishing the prescriptive content of the ruling, are also considered effective because stakeholders are more reluctant to engage in business transactions with entities involved in corruption cases.

The fair enforcement of a sanctioning regime – including for private entities – also depends on adequate investigative resources and skilled staff. Providing training and building the professionalism of enforcement officials helps address technical challenges, ensures a consistent approach, and reduces the rate of annulled sanctions due to procedural mistakes and poor quality of legal files. The professional profiles should reflect the mandate and tasks required to carry out the investigations. As such, specialised training is critical for investigators who may not be familiar with the organisational schemes, the complex structures or the corporate business practices applied by legal entities (OECD, 2016[15]). This can be achieved through guidance and training that builds knowledge of how different regimes function and can be used in parallel with each other, and that increases capacity to use special investigative techniques for integrity violations. Capacity-building activities can also focus on strengthening technical expertise and skills in fields such as administrative law, IT, accounting, economics and finance – which are necessary areas – to ensure effective investigations. In practice, many enforcement authorities face challenges in recruiting adequate staff and attracting specialised experts. However, capacity costs should be weighed against the costs of non-compliance, such as the decline in accountability and trust as well as the direct economic losses (OECD, 2018[16]).

Promoting the objectivity and independence of enforcement mechanisms

Enforcement actions should only be taken based on the law, and those enforcing the law should therefore act objectively. Objectivity should apply through all phases of all enforcement regimes. In disciplinary proceedings, decisions – at least at the first instance level – are usually taken by administrative bodies, which are not always judicial in nature. Since members of those disciplinary bodies are not judges but civil servants, procedural safeguards should be in place to guarantee that their actions are free from internal or external influence, as well as from any form of conflict of interest.4 At a minimum, these procedural safeguards can include the following components:

  1. a. outlining the mandate and responsibilities of disciplinary institutions as a clear basis for their existence

  2. b. ensuring that personnel responsible for disciplinary proceedings are selected based on objective, merit-based criteria (particularly senior-level positions)

  3. c. ensuring that personnel responsible for disciplinary proceedings enjoy an appropriate level of job security and competitive salaries in relation to their job requirement

  4. d. ensuring that personnel responsible for disciplinary proceedings are protected from threats and duress so as to not fear reprisal

  5. e. ensuring that personnel responsible for disciplinary proceedings have autonomy in the selection of cases to take forward

  6. f. ensuring that personnel responsible for disciplinary proceedings receive timely training in conflict-of-interest situations and have clear procedures for managing them (OECD, 2016[17]).

Objectivity is closely linked to independence, an essential characteristic of judicial systems that guarantees every person the right to have their case decided in a fair trial, based on legal grounds and evidence, and free from improper influence. It includes both external independence from the other state powers, and also internal independence within the judiciary (Council of Europe, 2010[18]). A distinction is commonly made between the subjective perception of judicial independence by different sections of society (perceived independence) and the formal legal safeguards that may make the judiciary objectively independent (formal independence). While legal safeguards can make the judiciary objectively independent, it cannot be taken for granted that countries adopting best practices for formal judicial independence safeguards will achieve high levels of perceived independence (Van Dijk and Vos, 2018[19]). International legal instruments also distinguish between organisational independence of the judiciary as a whole and the individual independence of judges.5 Organisational independence is guaranteed by its enshrinement in the legal framework, organisational autonomy, adequate funding and the court system’s self-administration. Individual independence of judges is ensured through:

  1. a. human resource policies that encompass clear procedures for the selection, appointment, promotion and dismissal of judges

  2. b. clear disciplinary procedures and responsibilities

  3. c. non-transferability without the consent of the person concerned

  4. d. internal independence, through transparent mechanisms for the allocation of cases guaranteeing the impartial and expert treatment of each case (Van Dijk and Vos, 2018[19]).

Ensuring the timeliness of the enforcement system

Excessive delays in carrying out enforcement proceedings can undermine the rule of law and ultimately prevent access to justice. As such, the fairness as well as the effectiveness of enforcement mechanisms also depends on initiating and concluding proceedings within a reasonable time. This applies to pretrial investigations and judicial court proceedings, and is equally relevant in criminal and non-criminal enforcement mechanisms. However, international legal instruments have not established specific time frames for what constitutes a “reasonable time” for enforcement. Therefore, there is no predetermined threshold establishing the timeliness for enforcing integrity standards. Timeliness needs to be balanced with the inherent complexity that often comes with enforcement proceedings and usually depends on the specific circumstances of each case.

11.2.2. Mechanisms for oversight, co-ordination, co-operation and exchange of information between relevant entities and institutions are in place, within and among each enforcement regime

Each enforcement regime consists of procedures involving several phases, actors and institutions, the oversight and co-ordination of which – in detection, investigation and case management – are essential to ensure due consideration of alleged misconduct. Poor co-ordination, co-operation and information sharing among offices and institutions with enforcement responsibilities undermine the ability to enforce the public integrity system, with broader consequences of making deterrent measures ineffective, leading to impunity and distrust.

Ensuring oversight and co-ordination within each enforcement regime

Oversight of and co-ordination among investigating entities within each regime help ensure uniform application of the integrity system in addressing common challenges and promoting the exchange of good practices. With due consideration of the different roles and functions of disciplinary and criminal enforcement, this requires establishing the legal and operational conditions for sharing relevant information and ensuring co-ordination among entities involved in each enforcement regime. Within the criminal regime, investigations and prosecutions are usually conducted, directed and supervised by the competent prosecutors, whose actions are co-ordinated by the corresponding prosecutor’s office or a similar co-ordinating body. For disciplinary proceedings, a body that oversees implementation of the disciplinary system and co-ordinates the various disciplinary bodies can help support co-ordination (Box 11.1).

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Box 11.1. The National Disciplinary Board and SisCor in Brazil

The National Disciplinary Board in Brazil, established under the remit of the Office of the Comptroller General of the Union (CGU), is responsible for overseeing implementation of the centralised federal executive branch’s disciplinary system – the Sistemas Correcionais, SisCor. Activities under the SisCor are related to investigation of irregularities by civil servants and enforcement of applicable penalties. The SisCor is endowed with legal powers to supervise and correct any ongoing disciplinary procedures and to apply sanctions through its 150 employees across the central department and 240 sectional units located within federal agencies (corregedorias seccionais).

One of the pillars of the co-ordination function of the CGU is the Disciplinary Proceedings Management System (Sistema de Gestão de Processos Disciplinares, CGU-PAD), a software allowing to store and make available, in a fast and secure way, information about the disciplinary procedures instituted within public entities.

With the information available in the CGU-PAD, public managers can monitor and control disciplinary processes, identify critical points, construct risk maps and establish guidelines for preventing and tackling corruption and other breaches of an administrative nature.

Source: (OECD, 2017[1]); the CGU website, www.cgu.gov.br/assuntos/atividade-disciplinar (accessed 22 February 2020).

In any typology of enforcement proceedings, co-operation, co-ordination and information sharing can benefit from (electronic) case management tools such as databases or registers. For example, experience shows that providing an electronic link between the public prosecution service and police, tax and securities authorities is a factor for accelerating corruption investigation procedures and referrals and facilitating follow-up and the extraction of statistics (UNODC, 2017[20]). Electronic case management tools can also provide relevant information for statistical, transparency, and prevention purposes. To be effective, data must be accurate and proportional to the purposes for which they are collected. As well, data must be collected and handled in line with privacy and data protection regulations. The CGU Disciplinary Proceedings Management (Box 11.1) and the Court Information System in Estonia (Box 11.2) provide examples of electronic case management tools in relation to disciplinary and civil enforcement, respectively. In the criminal area, the United Kingdom has developed a similar tool for foreign bribery cases – the Foreign Bribery Register – and Slovenia has recently established a similar database that is only accessible to prosecutorial authorities (OECD, 2018[21]).

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Box 11.2. The Estonian Court Information System (KIS)

When a court in Estonia uploads a document to the Estonian Court Information System (KIS), it is sent via a secure electronic layer for data exchange (the X-Road) to the e-File, a central database and case management system. The e-File allows procedural parties and their representatives to electronically submit procedural documents to courts and to observe the progress of the proceedings related to them. The document uploaded to the e-File is then visible to the relevant addressees, who are notified via email. After the addressee accesses the public e-File and opens the uploaded document, the document is considered as legally received. The KIS then receives a notification that the addressees or their representatives have viewed the document. If the document is not received in the public e-File during the predetermined time period, the court uses other methods of service.

Source: www.rik.ee/sites/www.rik.ee/files/elfinder/article_files/RIK_e_Court_Information_System%2B3mm_bleed.pdf; https://www.rik.ee/en/e-file (accessed 17 February 2020).

Promoting co-operation and exchange of information across enforcement systems and countries

Authorities under one of the enforcement regimes may become aware of facts or information relevant to another regime, in which case they should notify them to ensure that potential responsibilities are identified. Co-ordination mechanisms are thus vital to ensure that information is swiftly exchanged and enforcement mechanisms are mutually supportive. This is recognised by international instruments, which require state parties to take measures to encourage co-operation with and between their public authorities and law enforcement, both proactively (whenever an authority comes across a possible corruption offence) and upon request of the investigating and prosecuting authorities (United Nations, 2003[6]) (Council of Europe, 1999[22]). Mechanisms for co-ordination among relevant institutions also help identify common bottlenecks, ensure continuous exchange of experiences, and discuss formal or informal means to improve enforcement as a whole.

Establishing working groups – either ad hoc or in the framework of broader mechanisms to ensure co-operation across the public integrity system as a whole (for more, see Chapter 2) – creates the conditions for standardised processes, timely and continuous communication, mutual learning, and dialogue and discussions to address challenges and to propose operational or legal improvements. Working groups can also promote bilateral or multilateral protocols or memoranda of understanding to clarify responsibilities or to introduce practical co-operation tools between relevant agencies (Box 11.3). However, considering the potential sensitivity of corruption cases and the need to ensure the independence of law enforcement activity, any co-ordination mechanism between criminal investigators and other government agencies should give due consideration to the constitutional role and competence of each institution involved.

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Box 11.3. Mechanisms to prevent fragmentation of efforts

Inter-agency agreements, memoranda of understanding, joint instructions, and networks of co-operation and interaction are common mechanisms to promote co-operation with and among law enforcement authorities. Examples of this include various forms of agreements between the prosecutors or the national anti-corruption authority and different ministries; between the financial intelligence unit and other stakeholders working to combat money laundering; or among the different law enforcement agencies themselves. These types of agreements are aimed at sharing intelligence on the fight against crime and corruption, or carrying out other forms of collaboration.

In some cases, countries have launched formal inter-agency implementation committees or information exchange systems (sometimes called “anti-corruption forums” or “integrity forums”) among various agencies; others hold regular co-ordination meetings.

In order to foster co-operation and inter-agency co-ordination, some countries have initiated staff secondment programmes among different entities in the executive and law enforcement with an anti-corruption mandate, including the national financial intelligence unit. Similarly, other countries have placed inspection personnel from the anti-corruption authority in each ministry and at the regional level.

Source: (UNODC, 2017[20]).

To establish co-operation among foreign authorities, countries need to promote dialogue, mutual understanding and commitment. This is relevant, for example, for enforcement of foreign bribery cases, where statistics show that the exchange of information among foreign authorities is not a common source of detection in the demand-side country (OECD, 2018[23]). To improve co-operation among foreign authorities, countries need to make full use of options and tools provided for by relevant international instruments to establish international co-operation in both criminal and administrative matters.

Providing consistent guidance

Institutions in charge of co-ordinating investigative bodies or issuing overall enforcement policy usually establish channels for continuous communication and venues for regular meetings with entities, as they are often the best suited to strengthen the capacity of enforcement officials and to support them in building and sustaining cases. In particular, those co-ordinating entities can provide tools and channels to guide and support investigative bodies in preparing cases consistently. In relation to criminal enforcement, with due consideration of the principles of separation of powers and the rule of law, publicly available laws as well as general guidelines or directives by the general prosecutor’s office or the competent body issuing prosecution policy can be helpful in supporting prosecutors as they exercise their autonomous powers and take action. Such guidance should avoid clauses allowing broad or unqualified discretion, such as to abstain from prosecution if the case is not “in the public interest” (UNODC, 2009[24]). As for disciplinary procedures, support may be provided through guides, manuals, or other tools to establish contact, such as dedicated hotlines or electronic help desks addressing doubts or questions related to disciplinary matters and procedures (Box 11.4).

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Box 11.4. Providing guidance on disciplinary matters

The Civil Service Management Code in the United Kingdom recommends compliance with the Advisory, Conciliation and Arbitration Service (ACAS) Code of Practice on Disciplinary and Grievance Procedures, and notifies departments and agencies that the code is given significant weight in employment tribunal cases and will be taken into account when considering relevant cases. The ACAS, an independent body, issued the code in March 2015, which encourages:

  • clear, written disciplinary procedures developed in consultation with stakeholders

  • prompt, timely action

  • consistency in proceedings and decisions across cases

  • evidence-based decisions

  • respect for rights of the accused: the right to information, legal counsel, hearing and appeal.

The Australian Public Service Commission (APSC) has also published a comprehensive Guide to Handling Misconduct, which provides clarifications of the main concepts and definitions found in the civil service code of conduct and other applicable policies/legislation as well as detailed instructions to managers on proceedings. The guide also contains various checklist tools to facilitate proceedings for managers, such as the Checklist for Initial Consideration of Suspected Misconduct; Checklist for Employee Suspension; Checklist for Making a Decision about a Breach of the Code of Conduct; and the Checklist for Sanction Decision Making.

The Comptroller General of the Union (CGU) in Brazil provides various tools for guidance to respective disciplinary offices, including manuals, questions and answers related to most recurrent issues, and an email address to clarify questions related to the disciplinary system.

Source: (ACAS, 2015[25]; APSC, 2015[26]; CGU, n.d.[27]).

11.2.3. Public sector organisations are transparent about the effectiveness of enforcement mechanisms and the outcomes of cases, while respecting privacy and confidentiality

Data on enforcement can support the integrity system in many ways. Firstly, statistical data on the enforcement of integrity standards provides insights into key risk areas, which can thus inform the focus of specific policies as well as integrity and anti-corruption strategies. Secondly, data can feed indicators within the monitoring and evaluation activity of integrity policies and strategies (for more, see Chapter 3), and support assessment of how well the disciplinary system as a whole is performing. Thirdly, data can inform institutional communications, giving account of enforcement action to other public officials and the public (OECD, 2018[16]). Lastly, consolidated, accessible and analysed statistical data on enforcement practice enables assessment of the effectiveness of existing measures and of the operational co-ordination among anti-corruption institutions (UNODC, 2017[20]).

Collecting enforcement data and making it transparent

Data collection activity on enforcement – which is often scarce and/or fragmented – should aim at providing a clear understanding of issues such as the number of investigations, typologies of breaches and sanctions, length of proceedings and intervening institutions. An advanced data collection activity would facilitate its analysis as well as its comparability through time and among jurisdictions and countries.

Although various authorities may be in charge of compiling criminal and disciplinary data and statistics, their activity could be co-ordinated at the central level. This could facilitate the elaboration of timely and risk-based strategies and policies, but also – when co-ordination is coupled with the appropriate technical and data analytics tools – identification of risk areas and anomalies that would require further preventive efforts or investigations. Co-ordination can happen, for instance, within the same working group, either ad hoc or in the framework of broader co-ordination mechanisms of the public integrity system, tasked with improving processes and information sharing among enforcement entities. Ideally, with due consideration of privacy laws and investigative confidentiality, the mechanism co-ordinating the public integrity system would centralise information from disciplinary, criminal and other databases (e.g. asset and tax declarations or procurement-related ones).

Enforcement data and statistics can further contribute to demonstrating integrity commitment, ensuring accountability, and promoting risk analysis if they are transparent and accessible to the public in an interactive and engaging way, but also when they are made available in appropriate forms for reuse and elaboration. In relation to the disciplinary system, countries such as Colombia have elaborated corruption-related sanctions indicators (Observatorio de Transparencia y Anticorrupción, n.d.[28]) while others such as Brazil periodically collect and publish data on disciplinary sanctions in pdf and xls formats (CGU, n.d.[29]).

Ensuring transparency about the effectiveness of enforcement mechanisms also includes building healthy relationships between enforcement authorities and journalists/media, and continually demonstrating transparency, accountability and openness. For example, countries’ judiciaries can take a proactive media approach and ensure that the justice system is transparent for the public and society, for example by designating judicial spokespersons (Box 11.5) or press judges, making judgements public on the Internet free of charge, or developing a social media strategy (ENCJ, 2012[30]). This close co-operation with the media is particularly relevant for communicating during crisis situations, for instance when a corruption scandal arises.

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Box 11.5. Communication offices in the judiciary in Spain

The communication offices of the Supreme Court, the National Court and the Superior Courts of Justice of all autonomous regions in Spain depend on the Communication Office of the General Council for the Judiciary, and they are the established channels for contact with the media. The information they provide is disseminated to all journalists at the same time on an equal basis unless that information, interviews or reports are requested through a specific channel. The information must be provided in writing, by means of an official press release and in a manner that is respectful of the rules regarding the protection of personal data. In 2018 the Office of the General Council for the Judiciary updated its communications protocol to adapt to the profound changes in and evolution of communication in recent years.

Source: Office of the General Council for the Judiciary (2018), Justice Communications Protocol, www.poderjudicial.es/cgpj/es/Poder-Judicial/Tribunal-Supremo/Oficina-de-Comunicacion/Protocolo-de-Comunicacion-de-la-Justicia/ (accessed 17 February 2020).

Assessing the integrity system and the performance of enforcement mechanisms

Enforcement-related data are additionally used to help identify challenges and areas for further improvement within the integrity system and the enforcement mechanisms themselves. Data on enforcement can be part of the broader monitoring and evaluation of the integrity system. Korea, for example, develops for consideration two indexes related to disciplinary and criminal corruption cases within the annual Integrity Assessment of public organisations. They are the Corrupt Public Official Disciplinary Index and the Corruption Case Index (Anti-Corruption and Civil Rights Commission, 2016[31]).

Data on enforcement could also help assess the effectiveness of enforcement mechanisms, as it can feed key performance indicators (KPIs) identifying bottlenecks and the most challenging areas throughout the procedures. For this purpose, performance indicators on effectiveness, efficiency, quality and fairness of justice systems developed by organisations such as the Council of Europe (e.g. share of reported alleged offences taken forward, and average length of proceedings) could also be applied with respect to disciplinary proceedings (Council of Europe, 2018[32]). Making public the results of these performance assessments demonstrates a commitment to improving accountability mechanisms and instils confidence in the enforcement system. Furthermore, the analysis of the assessments – in close co-operation with all involved institutions – is key for addressing challenges and shortcomings not only of the enforcement system, but also of the integrity system as a whole.

copy the linklink copied!11.3. Challenges

11.3.1. Low levels of (perceived and formal) independence

Decreasing levels of perceived judicial independence have been cause for concern in a number of OECD countries (European Commission, 2019[33]). Indeed, judges should be free from inappropriate connections and influence, but “also appear to a reasonable observer to be free therefrom” (UNODC, 2002[34]). Perceived independence of the judiciary is also seen as a growth-enhancing factor whose lack can deter investments (European Commission, 2019[33]). Furthermore, while judicial independence is a multi-faceted issue, the perception of independence is considered a proxy for de facto independence, which in turn is seen to relate to factors such as public confidence in the judiciary, the degree of democratisation and press freedom, and cultural factors (Van Dijk and Vos, 2018[19]).

As far as formal independence is concerned, challenges arise in the criminal sphere such as in establishing technically independent prosecution services. Prosecutorial decision making is in some cases too intertwined with or dependent on the executive. For example, in some countries the chief law enforcement officer such as the attorney-general may be politically appointed and could be removed from office without cause. This situation creates risks for the integrity of prosecutorial bodies, making them especially vulnerable to undue influence related to political considerations. As a way to safeguard independence and enable due investigation, prosecution, processing and decision of cases in accordance with the law, judges and prosecutors could be appointed through a body predominantly composed of members of their own category (e.g. judicial councils for judges) (Council of Europe, 2010[18]). More generally, measures and mechanisms should be in place to guarantee judicial independence at the organisational level (through enshrinement in the legal framework, organisational autonomy, adequate funding and the self-administration of the court system) as well as at the level of individual judges and prosecutors (through clear human resources and disciplinary procedures, non-transferability, and objectivity and transparency in the allocation of cases).

11.3.2. Lengthiness of proceedings

The lengthiness of administrative, civil, criminal and disciplinary proceedings affects the timely imposition of sanctions, especially when considering statutes of limitations. Statutes of limitations are rules determining the maximum time within which an administrative, civil, criminal or disciplinary action can be brought against an alleged offender, aiming to protect the right to a trial within a reasonable time (Council of Europe, 1950[11]). While limitation periods are designed to promote legal certainty, fairness of proceedings and efficiency, they may hamper effective enforcement and lead to impunity.

In disciplinary proceedings, timeliness is often influenced by the fact that integrity breaches are detected as a result of other procedures, such as internal or external audits. In the meantime, the statutes of limitation may have expired or, in other cases, the offender may have retired from public office. The latter case is particularly relevant in relation to breaches of the code of conduct, which are difficult to sanction when public officials have already left office (Cardona, 2003[4]). In these cases, alternative options can be explored to overcome challenges arising from lengthy investigations and court proceedings, such as preventing offending former officials from occupying public office for specific periods, the cancellation or refusal of contracts with the private sector employer of the offending former official, and reduction of the official’s retirement pension (OECD, 2010[35]).

Similar considerations concern the criminal regime, where limitation periods for corruption offences may prove inadequate when alleged corrupt deals are discovered much after their inception or when enforcement suffers other structural weaknesses such as lack of judicial or administrative capacity. As a result, the statute of limitations may expire before the final decision is taken. For example, expiration of the statute of limitations is one of the main reasons for not prosecuting public officials in demand countries’ foreign bribery cases (OECD, 2018[23]).

Lengthiness of proceedings is also a major challenge for civil law enforcement. For example, in 2010 the average number of days for a first instance judgment in the OECD area was around 240 and the length of a civil dispute going through all three instances was 788 days, whereas in some other countries the conclusion of proceedings could take up to 8 years (Palumbo et al., 2013[36]).

Timeliness depends on many factors, some related to the inherent functioning of the enforcement system, others to the complexity and circumstances of the case. As a consequence, it is not possible to establish specific time frames for what constitutes a “reasonable time” for all countries. However, efforts can be put in place to address the conditions causing lengthy enforcement proceedings, e.g. ensuring that the legal framework is efficient and does not contain redundant procedures; that enforcement authorities have adequate capacity to address all cases; and that co-ordination mechanisms are in place to ensure the swift start of investigations.

11.3.3. Complex procedures involving multiple institutions

The complexity of each enforcement procedure and the involvement of several institutions creates room for inconsistent application of the legal framework, especially if there are no formal mechanisms to share information; if interpretation differs among institutions; or if responsible entities are not provided consistent guidance and venues for dialogue and mutual learning.

In the case of disciplinary proceedings, offices in charge of building cases rely heavily on the proactive collaboration of a wide range of actors within and outside the entity, for instance in getting to know allegations of integrity breaches (e.g. audit reports, asset declarations, human resources management, whistleblowing reports). Furthermore, some countries have dedicated procedures in place depending on the alleged offence’s gravity and two instances are usually provided to appeal a decision.

Similarly, proactive and continuous co-operation and co-ordination between agencies involved in criminal proceedings are essential to ensure that investigations and prosecutions run smoothly and that enforcement efforts do not become ineffective because of inaction on the part of any of these agencies. Indeed, in some countries lack of co-ordination and exchange of information jeopardises investigations and creates the risk of parallel investigations, which in turn leads to wasted resources, non-prioritisation of cases, and fragmentation of evidence and information. Criminal law enforcement officials, especially in countries with a centralised prosecution service, tend to rely on the code of criminal procedure as a sufficient framework for co-ordination of the investigation and the prosecution of criminal offences. However, experience indicates that such general rules alone are not adequate for securing a proper level of co-operation in dealing with complex corruption cases that require analysis of trends and risk areas, co-ordinated policy approaches and proactive detection measures. Furthermore, such rules do not address co-operation between law enforcement and preventive institutions (OECD, 2013[37]).

To address these challenges in any enforcement system, (electronic) case management tools such as databases or registers can support co-operation, co-ordination and information sharing among relevant bodies and authorities. With specific reference to disciplinary enforcement, the presence of an oversight body that oversees the implementation of the system and co-ordinates the various disciplinary bodies can ensure uniform application of the integrity framework, allow common challenges to be addressed, and promote the exchange of good practices. As such, the oversight body contributes to ensure accountability in the public sector and ultimately increases the overall effectiveness of the integrity system (for more, see Chapter 12).

11.3.4. Multiple responsibilities related to the same misconduct

Enforcement cross-agency co-ordination is particularly important during the investigative phase, where relevant information is often detected by agencies whose activity may be a source of both disciplinary and criminal responsibility (Martini, 2014[38]). In this context, challenges are common in many countries, where – for example – co-operation between public procurement authorities, law enforcement and anti-corruption agencies during investigations was found to be formalistic, leading to a low number of notifications about suspicions of corruption or conflict of interest submitted by public procurement authorities to law enforcement or integrity agencies (European Commission, 2014[39]).

Handling integrity-related offences under both criminal and disciplinary regimes with due consideration to the principle of ne bis in idem requires substantial co-ordination, whereas administrative proceedings are usually suspended until a verdict under the criminal regime is reached and an administrative decision is then taken on the basis of the criminal verdict (Box 11.6). This is why legal procedures in the majority of OECD member countries provide for the immediate notification to law enforcement authorities of an alleged criminal offence (OECD, 2017[1]).

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Box 11.6. Interrelation between procedures and categories of liabilities

An ongoing disciplinary procedure is usually suspended while a criminal process for the same fact is being conducted. This suspension also interrupts the counting for the statute of limitations. The facts proved in a final criminal law judgement can be taken as evidence in the disciplinary procedure. Likewise, the criminal conviction can be considered when deciding the disciplinary sanction to impose in relation to the same conduct. If the public official is convicted as a result of a criminal process, the disciplinary sanction is usually dismissal from the civil service. However, a disciplinary sanction would still be possible even if the corresponding criminal case were dismissed. Under both the criminal and disciplinary regimes a public official is confronted with the economic or financial consequences of the offence. Usually, legislation gives rather wide discretion to the administration and the judge to take into account all the circumstances when deciding on the specific amounts of money to be paid, as compensation, by a public official.

Parallel procedures and the different procedural safeguards applying to each regime affect the investigations. Criminal investigations demand a higher level of guarantees regarding the suspect’s rights, due to the intrusive nature of the investigative powers accorded law enforcement authorities. Administrative investigations, on the other hand, involve a much lower level of interference with the rights of individuals and do not require the same safeguards.

Source: (Cardona, 2003[4]).

The need to ensure co-operation in enforcement activities goes beyond national authorities and borders. Recent corruption scandals involving public officials in different countries highlighted the lack of co-operation, effective cross-border co-ordination and exchange of information among relevant jurisdictions. An OECD regional study on Latin America pointed out that this is largely due to the lack of regular and effective international co-operation (e.g. co-ordination of complex investigations in real time, consistent exchange of evidence, and regular channels of communication) that would allow authorities to address the substantive and procedural differences among legal systems (OECD, 2018[16]). Effective mechanisms that allow authorities to develop key ingredients for effective informal and formal co-operation (e.g. skills, professional contacts and mutual confidence) are thus needed.

11.3.5. Fragmented collection and publicity of enforcement data

Collection of data on enforcement (e.g. number of investigations, prosecutions and sanctions) is generally limited and often carried out through a fragmented approach without a clear strategy. Furthermore, when data are available to the public, they can be difficult to find and reuse by stakeholders (e.g. civil society, academia) for other purposes. This was observed by the OECD with respect to the data of some disciplinary systems: they are collected only in part and in broad categories; they do not match with other sets of statistics; and they are neither published nor communicated to the public. Similar findings emerge from analysis of sub-national ethics agencies’ transparency policies on enforcement activity (Coalition for Integrity, 2019[40]).

Similarly, the lack of adequate statistical data or case law related to corruption offences has been identified as a cross-cutting problem for implementation of the criminal law provisions of UNCAC. In particular, although some criminal data on corruption are made available by individual authorities or for individual offences, the methodology used and the types of data collected are not consistent across institutions; the information available is not disaggregated by type of offence; and no central mechanisms exist through which such data can be accessed (UNODC, 2017[20]).

While the collection of criminal and disciplinary data and statistics related to integrity breaches is often the responsibility of specific institutions, their activity could be co-ordinated at the central level, for instance within the general co-ordination mechanism for the public integrity system. In this context, data on enforcement can also integrate the broader monitoring and evaluation of the integrity system. As for transparency, enforcement data and statistics can have the most impact for accountability and risk analysis purposes when they are accessible to the public in an interactive and engaging way, but also when they are made available in appropriate forms for reuse and elaboration.

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Notes

← 1. For example, the United Nations Convention Against Corruption, the Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels (United Nations, 2012[13]); the European Convention on Human Rights (Council of Europe, 1950[11]); and the European Charter of Fundamental Rights (EU, 2012[12]).

← 2. See the Court’s judgements on Vathakos v. Greece 20235/11 (Final Judgement of 28/09/2018), Vilho Eskelinen and others v. Finland 63235/00 (Final Judgement of 19/04/2007), Kamenos v. Cyprus 147/07 (Final judgement of 31/01/2018).

Note by Turkey

The information in this document with reference to “Cyprus” relates to the southern part of the Island. There is no single authority representing both Turkish and Greek Cypriot people on the Island. Turkey recognises the Turkish Republic of Northern Cyprus (TRNC). Until a lasting and equitable solution is found within the context of the United Nations, Turkey shall preserve its position concerning the “Cyprus issue”.

Note by all the European Union Member States of the OECD and the European Union

The Republic of Cyprus is recognised by all members of the United Nations with the exception of Turkey. The information in this document relates to the area under the effective control of the Government of the Republic of Cyprus.

← 3. See art. 108, 132, 134-136 of the Greek Civil Service Code.

← 4. See relevant ECHR judgements on Albert and Le Compte v. Belgium 7299/75, Gautrin and Others v. France 21257/93, 21258/93, 21259/93 et al., Frankowicz v. Poland 53025/99.

← 5. See, for example, the UN Basic Principles on the Independence of the Judiciary of 1985 (United Nations, 1985[44]), the Judges’ Charter in Europe (European Association of Judges, 1997[42]), the Magna Carta for Judges (Consultative Council of European Judges, 2010[41]), the Universal Charter of the Judge (International Association of Judges, 1999[43]) and the Bangalore Principles about Judicial Conduct (UNODC, 2002[34]).

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