11. Enforcement

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).

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.

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).

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]).

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.

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).

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.

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.