RESOURCE MATERIAL SERIES No.80

Transcription

1 GROUP 2 STRENGTHENING THE CAPACITY AND ABILITY OF CRIMINAL JUSTICE AUTHORITIES AND THEIR PERSONNEL AND PREVENTIVE MEASURES AGAINST CORRUPTION Chairperson Mr. Surya Prasad Parajuli (Nepal) Co-Chairperson Mr. Hiroki Ito (Japan) Rapporteur Ms. Chemen Saeed Jafar Bajalan (Iraq) Co-Rapporteur Ms. Denada Koçiaj (Albania) Members Mr. Mohammed Sharif Rahpo (Afghanistan) Mr. Ruffin Ikie-Ituya (DR Congo) Mr. Tsend- Ayush Dorjgotov (Mongolia) Ms. Tai Thi Ta (Vietnam) Mr. Shintaro Uchida (Japan) Ms. Yoko Watanabe (Japan) Advisers Prof. Jun Oshino (UNAFEI) Prof. Fumiko Akahane (UNAFEI) I. INTRODUCTION This group has started its discussion on 24 July The group elected, by consensus, Mr. Parajuli as its Chairperson, Mr. Ito as its Co-chairperson, Ms. Bajalan as its Rapporteur and Ms. Koçiaj as its Co-rapporteur. The group, which is assigned to discuss strengthening the Capacity and Ability of Criminal Justice Authorities and their Personal and Preventive Measures against Corruption, agreed to conduct its discussion in accordance with the following agenda: 1. Independence of the criminal justice authority; 2. Integrity of the criminal justice authority (Code of Conduct); 3. Impartiality, transparency and accountability in the relevant decisions in the criminal proceedings; 4. Strengthening the capacity of judiciary in dealing with corruption; 5. Preventive measures against corruption. II. SUMMARY OF THE DISCUSSIONS A. Independence of the Criminal Justice Authorities 1. Judges The participants agreed that the independence of the criminal justice authorities can be analysed in two directions: (a) Structural independence; and (b) Functional independence. The participants introduced their countries experiences and problems regarding this theme. In Afghanistan the separation of powers is not practically implemented and the appointment of judges is not exercised independently. In Albania the problem is the transparency of appointment of judges. There is no legal provision which provides for the transparency of the appointment procedures. In Mongolia the Council of the Judiciary decides on the judiciary. The judicial system is independent but the judges are not individually independent. In Vietnam the judiciary is independent (including structural independence and functional independence). The appointment of judges is held by the president judge of the Supreme Court. In Japan, before the appointment of judges, the professors of the judicial academy observe the character of the candidate in addition to the exam results. The process is very strict. There is a third party which reviews the selection or engages in any other reviewing methods. No contradictions between the independence of the judiciary in the Japan law were made evident by the Japanese participants. 205

2 RESOURCE MATERIAL SERIES No.80 There is agreement that there are problems in the procedure of appointment of judges. That affects the independence of the judiciary. The problems are varied according to the countries: 1. Judicial independence is not always secured; 2. The judicial appointment process is subject to political influence; 3. The appointment process is secret and the media has no role; 4. Salary is insufficient; 5. Promotion is not systematic; 6. Insufficient budget. 2. Public Prosecutors All the participants agreed that when analysing the independence of public prosecutors these factors are to be considered: 1. Independence of the prosecutorial organization; 2. The authority given to the public prosecutor; 3. The appointment of public prosecutors. In Afghanistan public prosecutors are independent according to the law; however, they are not independent in practice. In Iraq the public prosecutor is independent; however, the public prosecutor law handicaps the position and does not allow for an active role. The judge, not the public prosecutor, is responsible for investigation. In Mongolia, immunity for parliament members is one of the difficulties facing investigators. The same problem is present in Albania. There appointment is affected by the political view. The president appoints the general prosecutor. In Nepal, parliamentarians can be interrogated and arrested by the investigator but the speaker of the parliament should be informed. Each participant agreed corruption should be considered in the following terms: 1. The organization of the investigation authority; 2. What kinds of interference occur and the function of the office; 3. The exercise of power and the need for any kind of permission; 4. No risk of dismissal after exercise of power; 5. A sufficient salary and promotion system. B. Integrity of the Criminal Justice Authority (Code of Conduct) Nepal has a code of conduct for the behavior of judges and the general prosecutor and other officials. In Mongolia there are different codes of conduct for judges, public prosecutors and other public servants. The code sets restrictions on the behavior of judges and public prosecutors. In Iraq there is supervision but it is not very active. It has a role in applying the code of conduct. In Afghanistan there is a code of conduct but it is inapplicable because of the prevailing complexities in the country. For example there are judges who are members of political parties while according to the law having no right to that. In Nepal the lawyers uses the NGOs and their activities to affect indirectly judges who are involved in these NGOs. Working conditions in Albania are not bad. There is an inspection office under the Ministry of Justice. In Vietnam there is no code of conduct for judges or prosecutors, but there is the Public Official Law and there are some regulations (under law) for the behaviour of public prosecutors and judges. In Japan there is a national public service ethics law which is also applicable to public prosecutors. The national code is not applicable directly to judges because of the independence of the judiciary. They have to set their own rules without interference from the Diet. Every three or four years judges and public prosecutors are transferred to avoid any possible collusive relationship. There are some exceptions for reasons like taking care of family members; such reasons are given consideration but have not always been accepted. To conclude, the absence of a code of conduct in some countries and insufficient content of the code are some of the problematic issues. 206

3 THE TWELFTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION REPORTS OF THE COURSE C. Impartiality, Transparency and Accountability in the relevant Decisions in the Criminal Proceedings In Nepal there has to be a reason for a decision. The trial is public. There is a restriction on investigation due to the authority of some officials to refuse to give information. The media has the right to inform the public of the court work. In relation to the prosecution, the attorney general has the power to prosecute. For corruption, the CIAA has the power to decide whether to prosecute or not. The decision of the CIAA cannot be appealed. The court has no right to interfere in this decision. In Afghanistan, corruption cases are overseen by the High Office of Oversight and Anti-corruption in the investigation and trial stage. In Albania, there is transparency in court, and media presence. There is no such transparency and publicity in relation to the investigation stage. There is an inspection office in the Ministry of Justice to oversee the work of judges and public prosecutors. In Mongolia all the information about corruption is available by the IAAC. There is a twice yearly media conference on the work of the IAAC. There is a need for permission from the public prosecutor in relation to detailed information about criminal cases, but all the other information is accessible by the public. In Japan, there are two types of procedure for the prosecution of public prosecutors. 1. Prosecution Review Commission The Commission is located in each District Court. It consists of eleven members drawn from lists of voting citizens. It reviews whether the non-prosecution decision is appropriate. After reviewing, it can make three types of decisions as follows: (i) Non-prosecution is appropriate; (ii) Non-prosecution is improper; (iii) This case should be prosecuted. Generally, these decisions are not legally binding, but recently, the system was partly amended. If the commission twice makes a type (iii) decision and the public prosecutor doesn t prosecute, lawyers appointed by the court should prosecute the case and maintain the prosecution. 2. Request for Trial In some cases, including those involving the abuse of power of public officials, the complainants or the accusers have the right to request the District Court for trial if the public prosecutor doesn t prosecute the cases. And if the court decides that the cases should be committed to the court for trial, the lawyers appointed by the court should maintain the prosecution. To summarize, important issues are: 1. There is a need for a checking mechanism on the authority of the public prosecutor; 2. The role of media in overseeing transparency is important. D. Strengthening the Capacity of the Judiciary in dealing with Corruption Important issues are: 1. Manpower; 2. Equipment; 3. Budget; 4. A separate anti-corruption body; 5. Co-operation between governmental institutions. In Afghanistan the role of the international community is very important in fighting corruption, both financially and technically. Other agencies are involved in fighting corruption but they are not co-ordinated. In Iraq there is a special Anti-corruption Commission in Baghdad but it has no power over the Kurdistan area. In Albania there is an Anti-corruption Task Force led by the prime minister and an Anti-corruption Department in the cabinet. It has the power to inspect the public administration and if it finds any irregularities it sends the data to the public prosecutor. The existence of an independent body might be a good solution. In Mongolia there is a separate independent body named IAAC but it is not a constitutional body. IAAC has its own budget 207

4 RESOURCE MATERIAL SERIES No.80 and its own equipment. Its annual budget must be at least maintained; it is not allowed to decrease. There are no IAAC branches outside the capital because of the lack of resources. There is a need for expertise in the financial area. In case of the need for expertise in any area the IAAC might ask other public offices to send specialists. There is no special training for officials in the corruption commission. The chief is appointed by the parliament. In Nepal there is a constitutional body for investigation of corruption. The appointment of the commissioner of the CIAA is made by the Constitutional Council. Only the CIAA deals with corruption so the attorney general has no role. There is a special court for trial of corruption cases. There is a totally specialized body for investigation and trial of corruption cases. In the military there is another different body for investigation. The separate body is a good solution for avoiding any difficulties which arise from the prosecutors being appointed by the Council of Ministers. In Vietnam there is no separate organization for corruption. In corruption cases the public prosecutor and police conduct investigation. In Afghanistan there is a monthly meeting to review the anti-corruption procedure by the committee under the authority of the president. UNDP supports the project finically. In relation to training for anticorruption there is no special training. There is no computer lab for investigation. There is a very simple investigation. Questionnaires are sent to the related ministry to get the answers and documents. That is been used as evidence in court. It is very hard for the prosecutor to win a case. Theoretically there is a time limitation to decide a case but in practice that does not work. In Albania there is no specialized equipment for corruption. NGOs provide training sessions for the officials of corruption cases. Prosecutors deal with corruption cases and they as judges enter the judicial academy after taking an exam. There are special prosecutors for financial and economical cases. There is a specialized lab for criminal investigation. In Nepal the CIAA can ask for assistance from public offices and can hire people on contract if necessary. There are two forensic labs, one under the police and another under the science academy. There is no special training institution under the CIAA but it can ask other entities like the judicial academy to conduct training. For dealing with the problem of delays there is a special penal division in the Supreme Court to deal with old cases. In Iraq the major problem is the negative role of public prosecutors. However there is the possibility of bringing expertise from other government offices. In Mongolia there is a legal time limitation for the judge to decide a case. In Japan there is no separate organization for corruption. Instead, there are special investigation departments in major cities and these departments conduct the corruption investigations. In other areas, the public prosecutor and the police usually conduct joint investigations in corruption cases. In general, the public prosecutors provide the necessary knowledge to investigate corruption cases, but some prosecutors who have the potential are assigned to the Special Investigation Department and get necessary training. There might be some areas of conflict, such as in the area of interpretation of the law or disclosing of information between police and public prosecutors. In such cases the role might be divided between both parties to avoid conflict. In conducting such joint investigation there will be a daily contact for sharing information. In Japan the prosecutors assistant officers analyse most of the data. The prosecutors assistant officers have the opportunity to attend accounting lectures. Specialized prosecutors attend a special tax institute. In relation to computers there is no specific office for analysing data. But computer operating training is provided to some public prosecutors. There is a problem of delay due to unclear collection of evidence. The pre-trial procedure involves a judge, prosecutor, and attorney who meet to decide how the trial will be processed. The defence council and the public prosecutor decide the major point of the trial and what sort of evidence is necessary and present. First, the public prosecutor discloses the evidence and later, at the request of the defence council, the prosecutor makes clear his or her main case. By this stage the evidence has been decided and no more evidence can be brought to trial or the first trial after the pre-trial procedure. The prosecutor has the duty to report the time for bringing down the cases he or she is in charge of. The senior prosecutor according to the reason makes a decision either to take a procedure or to let another prosecutor take charge of the case. There is a time limitation in relation to detention for a maximum of 23 days before deciding to indict. 208

5 THE TWELFTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION REPORTS OF THE COURSE E. Preventive Measures against Corruption (Effective methods of selecting and training public officials: UNCAC Article 7.1 b) In Nepal the Public Official Commission developed a unified standard for interviews. The interviewer should declare if there is any relationship or possibility of favour or disfavour to the interviewee. The Public Service Commission has developed various techniques and processes to maintain neutrality. In Afghanistan there is widespread nepotism which creates a corruption network in most of the ministries. Of course there is a code of conduct and legislation prohibiting such behaviour but these are not implemented in practice. The challenges and the recommended solutions have been mentioned by the National Anticorruption Strategy which is overseen by the HOO to reduce corruption. There is a commission for selecting senior officers but the ministry selects other persons. In Albania there is an institution which organizes the competition for public officials. It announces the vacancies, selects the candidates for civil servants, supervises the exam and publishes the result. In Mongolia there is a public service office under the parliament. There has to be an exam after the announcement of the service. The higher grades get the job. The competition is announced every year. In Japan, to become a national public officer, the applicant must obtain a set score in the unified exam held by National Personnel Authority, which is under the Cabinet but independent from other ministries. After passing the exam, they apply to each ministry to get a job. Each ministry assesses their capability for job through interviews before employment. Until recently, officers of Ministry of Foreign Affairs were recruited separately, but because of some scandals, the same process now applies to them. The recruiting system is fair but it is difficult to evaluate character in brief interview. Compared with this process, the long selection process of judges and prosecutors are more effective. 1. Remuneration of Public Officials Sufficient remuneration certainly contributes to preventing corruption. In Nepal, in comparison with the private sector, public officials receive low salaries. Of course, public office salaries vary according to rank. Generally it is lower than other countries. In Iraq the salary is sufficient but it was very low until 2002; that was the reason for corruption in the public sector, including the criminal justice authority. In Albania the salary is not sufficient and this is one of the most crucial problems leading to corruption. 2. Reporting (Whistle Blowers) In Albania there is a law protecting whistle blowers. In Nepal there is no separate law protecting whistle-blowers but there is a protection paragraph in the CIAA Act. In Afghanistan, there is no protection for reporters. Lately an office for complaints has been established. There are boxes and a website; this is the resource for most of the reports. There is a paragraph in the Anti-corruption Law for protecting whistleblowers but it is very difficult to implement. In Iraq there is no special law for protecting whistleblowers but there is a provision in the Criminal Procedure Code. The Anti-corruption Commission has telephone numbers and websites that contribute to keeping the name of the reporter confidential. In Mongolia there are paragraphs in the Criminal Procedure Law but no separate law. In Japan, a Whistleblower Protection Law was recently passed. It is related to people reporting from the private sector. The purpose of the law is to be applied to the public officials as well. There are measures to encourage people to report. Boxes, s and awareness programmes to encourage people to report are among the methods used for that purpose. To what organization should people report? To the ministry or office they belong to or to a separate institution? All the types of reporting can be included so people do not hesitate about reporting. It is just about encouraging people to report, it does not matter where to. 209

6 RESOURCE MATERIAL SERIES No.80 In Afghanistan there is a commission in the parliament to receive complaints, and the president s office also has a similar office to receive complaints. The Anti-corruption Office as well has a reporting department but the problem is that people do not trust the system so they do not report. The reports are not dealt with effectively; they are sometimes ignored. It is very important to take strong measures about reporting to encourage people to report. In addition, the media can play a great role. In Mongolia there is free hotline for reporting within the Anti-corruption Commission, in addition, the website with of the commission have fax and . States officials are under obligation to report any corruption in their office. There are awareness activities for the public to inform them about the possible ways for reporting. There are NGOs network in the local areas working for awareness. In Nepal there is a free hotline system which has recording system and also is available. It is not compulsory to disclose names and identity. There are awareness programs by NGOs that work for good governance activities. In Japan there is no separate organization so people take different measures for reporting. Even an anonyms report can lead to investigation. There are various measures for encouraging the public to report. The national public service takes charge in preventing corruption, their website contains easy way to report anonymously but it is not clear if it is known by all Japanese. The same webpage contains hotlines numbers and s for reporting. 3. Reporting Assets by the Officials In Albania senior officers have to report their assets to the high inspectorate of declaration of assets periodically. In Nepal it is compulsory to report and a system has been produced by The public officials has to prove the recourses of their property if the anti corruption commission asked for that. In Afghanistan There is obligation to register assists. But there is no punishment if the public service did not report. It is important to have some punishment to implement the obligation of reporting assets. There is no banking system that makes it difficult to follow the money movement. In Mongolia there is an assets declaration department of IAAC. Public officials have to declare their assets. There is s a punishment for lies and exceeding the time limitation of the declaration. There is investigation going on for cases where the declaration was not true. Some declaration been published for the public so there might be complains about them from the public accordingly the investigation starts. In Japan, the National Public Service Ethics Law regulates the acceptance of gifts by public officials. If a senior public officer receives a gift to attend a party of more than 5,000 yen from the people related to his or her public service he or she has to report it. That works in practice and the reporting requirment deters public officials from taking gifts or any other entertainment. Every three months there has to be a reporting and such reports are accessible by the public. Additionally, high-ranking officials have to report extra income like stocks. Prosecutors are prohibited by internal regulation from holding stocks. 4. Mechanism for deterring Public Officials from Corruption (i) Disciplinary Actions In Nepal there is risk of losing job in case of corruption. Mongolia there is the possibility of reducing salary, losing job, restriction on interring a public service for two years. There is a possibility of appealing against these measures. In Afghanistan there are disciplinary actions for public officials. In Japan according to the national public service law there are disciplinary actions. Violation of any related law to the public service and any misconduct led to a disciplinary action. Dismissal, suspension of the office from a day up to one year, reduction of salary for term of less than a year up to 20% and admonishment are disciplinary action. There is away of appeal or complaint against the decision to the national personnel authority can be made against. (ii) Training Training contributes to preventive measures of corruption. In Albania the Department of Public Administration, which supervises the public servants exam, conducts training. 210

7 THE TWELFTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION REPORTS OF THE COURSE Afghanistan recently established a management academy for public officials. Six months study in this academy is required before beginning work and that is an effective way to train staff. In Nepal newly appointed public officials must go through three months special training, which is important for their awareness of the disciplinary measures in the public service. In Japan, there are many types of training. For example, court clerks receive training before beginning work and regularly through out their service. Some training is for all court clerks, some for managers, and still others are for the head of the managers. The national public service website has a page to allow public officials to self-check their knowledge. To conclude, both training and preventive measures are required but money and time are important elements for both. For implementing all the measures we need very strong leaders, then a strong decision can be made. All the measures then can be implemented in a relatively short time. In order to improve a criminal justice system three pillars are important: (i) laws; (ii) a system for operating laws; (iii) human resources to take advantage of the system for implementing laws. Without these three pillars it is very hard to fight corruption. Human resource development is very important but it takes time and money. Creating both laws and a system is very hard. Training is the most important and it is the priority. That has to happen in parallel with legal and system developments. III. RECOMMENDATIONS 1. Criminal justice organizations and their operations should be independent. Appointment of criminal justice authorities has to be via special mechanisms to maintain their independence and integrity; 2. Political influence in the criminal justice authorities and in the operation of the individuals, judges, public prosecutors, police and other administration officers must be avoided; 3. Political will for an effective criminal justice system is essential. The international community and civil society can play a great role in developing political will in a positive way; 4. Budget, salary and remuneration have to be secured. However it is difficult in countries which suffer from economic difficulties to maintain such security. To allocate a certain percentage of the budget to the judiciary is one possible recommendation; 5. Although to maintain integrity of judges and prosecutors a code of conduct is important, this should not be at the expense of the independence of the judiciary. Transferring judges regularly is one of the measures for maintaining integrity. Integrity testing as it exists in Hong Kong, which is a kind of sting operation against corrupt officers, is another measure; 6. Accountability and checks and balances mechanisms are indispensable. Appeal, supervisions and complaints to the court, as in Japan, are some such mechanisms. A level of secrecy has to be maintained during the investigation stage. However, third party checking in the investigation stage is important. The trial should be open to the public, in principle; 7. Encouraging of reporting through awareness programmes is crucial. Utilizing media and the Internet in the efforts of raising awareness and informing the public could be effective. It is essential to establish a system of protecting informants; 8. Training public officials in general and the criminal justice authority in particular is important to maintain integrity and develop capacity; 9. Simplifying the process of service providing can be considered an anti-corruption measure; 10. International co-operation (capacity building, reporting, awareness programmes, etc.) surely contributes to the fight against corruption. 211