Anti-corruption efforts in Greece: Between Law in Books and Law in Action
Professor, University of Nicosia, em. Professor, University of Athens
Measures introduced as a result of the economic crisis
1. Due to serious financial and administration problems, there has been an atmosphere of immense crisis in Greecesince 2009. This situation provoked the intervention, among others, of a European Commission Task Force, which agreed with the Greek authorities on a Road Map for technical assistance in the field of Anti-Corruption in October 2012 (http://ec.europa.eu/commission_2010-2014/president/pdf/roadmap_en.pdf). As a result, a National Anti-Corruption Action Plan called “Transparency” was prepared by the Ministry of Justice, Transparency and Human Rights in January 2013
(http://www.ministryofjustice.gr/site/LinkClick.aspx?fileticket=KyH_7RZiUPg%3D&tabid=64) and a National Anti-Corruption Coordinator together with a Coordination Committee and an Advisory Board were appointed in May and June 2013 (Law Nr. 4152/2013, Paragraph IG –these bodies were abolished in February & March 2015 and substituted by a special Ministry and a Secretary General for combatting corruption: art. 9 ff., Law Nr. 4320/2015).
Other measures and actions taken in Greece after the beginning of the crisis in an effort to strengthen transparency and to combat corruption include: the adoption of a law in 2010 placing all public institutions under the obligation of publishing their decisions online (internet); the appointment, in relation to political party financing, of a committee on expenditure control and election violations set up within Parliament, including MPs from all parties and three magistrates; asset disclosure of holders of public office and other state officials; and setting-up a pharmaceutical supplies price watch, the introduction of electronic prescriptions and the centralization of healthcare procurement.
Public¢s perception of corruption according to certain surveys
2. However, according to two Eurobarometer surveys which were conducted and published by theEuropean Commission in 2014 as an addition to its EU Anti-Corruption Report (February 2014), the perception exists in Greece that corruption is a widespread problem, that it hampers business competition and, also, that without bribery and the use of connections, entrepreneurs cannot obtain public contracts. Nevertheless, it is interesting to note that only 7% of the respondents in Greece stated in these surveys that in the past 12 months “they were asked or expected to pay a bribe”. In addition, a huge majority of the respondents (87%) declared that they “did not report a corruption case”! (http://ec.europa.eu/public_opinion/archives/ebs/ebs_397_fact_el_en.pdf )
A similar picture is presented in a research which was conducted in 2012 by the University of Gothenburg in Sweden on the level and relevance of the differences in the Quality of Government (QoG) across the 27 EU countries. (http://www.qog.pol.gu.se/digitalAssets/1436/1436225_qog-annual-report-2012_web.pdf ). The so-called “quality of government” of this research is based on four specific categories, i.e. Government Effectiveness, Control of Corruption, Rule of Law and Accountability. More specifically, the criterion related to control of corruption covered the following areas: (a) corruption in public schools, (b) corruption in public health, (c) bribery paid in return for health services, (d) bribery paid to obtain public contracts. In this research, Finland, Denmark and Sweden score high in corruption controls, whereas Greece, Romania and Bulgaria score relatively low.
Moreover, the Corruption Perceptions Index (CPI), published by Transparency International since 1995, is a global standard for assessing corruption worldwide. The CPI aggregates 13 different sources of data related to corruption and produced by the World Bank, World Justice Project, the African Development Bank, and others. A country is included in the index if it is reviewed by at least three sources. The lower the CPI rank, the lower the perceived corruption in a country. In the 2014 CPI Index Greece was ranked 69th (2013: 80th!) out of over 175 countries (https://www.transparency.org/cpi2014/results) .
3. On the other hand, Transparency International Greece (ÔI-G) has been producing an annual nationwide corruption perception survey since 2007 by means of telephone interviews (more than 12,000 every year). It is believed that this is a rather representative sample. However, the TI surveys are based on a very broad definition of corruption including f.e. tax offenses (tax evasion, non issuance of tax receipts/invoices etc.). In view of the fact that tax criminality is widespread in Greece, it must be taken under consideration that many interviewees have declared their tax crime perception as a corruption one, thus leading to very high scores of corruption opinions.
Since 2011 there are data concerning persons who have been personally victimized by corruption, even if only once in the past (a percentage of 20,6% of the 2013 survey¢s respondents).The vast majority of these victims are males, with an average age of around 50, who are employed and who have completed higher education.
On the basis of the responses given in this survey during 2013 (www.transparency.gr/wp-content/uploads/2014/04/Ðáñïõóßáóç-Ã.ÌáõñÞò.pdf), petty corruption in Greece seems to have been reduced (-15% in comparison to the previous year 2012). This reduction, being continuous since 2009, is attributed by the reviewers of the survey firstly to the reduction in Greek incomes which occurred as a result of the economic crisis, and secondly, to the continuous campaigns against corruption carried out by the tax authorities and the NGO¢ s. In addition, state controls in public and private sectors are considered by the reviewers as having become more intense and as having, thus, also contributed to the curbing of corruption in Greece.
According to this perception survey, incidents of corruption take place primarily in the public sector (76.7%). More people (in comparison to the previous year) have refused to pay bribes: 29.6% in the public sector and 33% in the private sector. In addition, only 5.6% of the respondents could mention incidents of corruption in the public sector, esp. in hospitals, taxation offices and city planning offices (a similar percentage of 7% was found, as mentioned above, by the Eurobarometer survey!). On the other hand, with regard to the private sector, the percentage of incidents of corruption is even smaller, i.e. only 1.9%, and mainly in private hospitals.
A critical approach of the perception surveys on corruption
4. These remarks demonstrate, in my opinion, how fragile and problematic the results of a perception survey can be and, consequently, how wide the gap can be between the broader idea which the respondents may have in connection to the extent of corruption in their country, and the factual incidents of corruption which they themselves have experienced. Under this aspect, a reasonable question which arises within this framework, is just how reliable, from a criminal policy point of view, these perception studies are, which are based solely on the criterion of perception. In fact, this kind of assessment, widely seen as subjective, is merely a reflection of how a qualified sample of people perceives corruption in a specific country, on the basis of several factors which may shape their opinion. (cf. Alex Cobham, Corrupting Perceptions, in: Foreign Policy, 22.7.2013: http://www.foreignpolicy.com/articles/2013/07/22/corrupting_perceptions). Hence, in order to have a clear image of the situation of corruption in a country, it is important to find out and analyze the factors which exercise influence to the shaping of this situation.
One key factor, for example, is the frequency with which the mass media report cases of corruption in each country. Another factor, related to the previous, is how far investigative journalism is prepared to go and how it angles its criticism on the topic of corruption. Indeed, corruption, economic crimes and white collar crimes in general may be over-represented in the media, especially when they are to be used as a means of pressure and competition in the political arena. Similarly, the frequency with which the media report cases of corruption in each country may also depend on the political balance and the priorities/ strategies of the political parties. These factors evidently can deeply affect the way the public perceive crime levels, and the public¢s reactions of fear and insecurity can be manipulated accordingly. What is significant is the mismatch between the public¢s perception of crime levels and the real figures, which, as demonstrated above, are often found to be considerably lower.
5. On the other hand, corruption perception studies, despite their purpose to focus the world¢s attention on the need to monitor corruption and to offer a map of corruption of the whole world, may not only be misleading in relation to the real dimensions of corruption in a country, but may also have a negative rebound effect on that country, as they can be used by foreign investors in an erroneous manner. Indeed, corruption can influence in a negative way the economic growth of a country where direct foreign investments are concerned. In these cases, the corruption perception studies such as TI´ s CPI run the risk of giving distorted criteria to foreign investors to use as part of their decision-making process as to whether to invest in a specific country or not.
It would be better therefore, in my opinion, to base such crucial judgment as to how far a country is corrupt, on a more complex index than that of perception, an index which would take into account a wider range of parameters measuring both corruption perception rates and the efforts of a country to adopt anti-corruption policies at a legislative and administrative level. Such parameters, for instance, would be the existing legal framework, the way in which this legislation is enforced (including cases of corruption revealed and/or brought before the courts), best administrative practices of a country to cope with its indigenous corruption, but also the effectiveness of all these measures in practice. Corruption levels are also deeply influenced by financial and fiscal data like unemployment rates, GDP etc. Such data should also be considered when measuring corruption scores. As a result, we believe that a multifactorial corruption index (MCI), based on up-to-date and comparable data, as well as on cross-referenced facts, would be more reliable and objective and, consequently, more accurate and ultimately fair for the countries in question (N. Courakis /G. Mannozzi, Confronting Corruption in Greece and Italy, in: Honorary Volume in Memory of Professor Dr. Chr. Dedes, Athens, Ant.N. Sakkoulas Publishers, 2013, vol. II, pp. 11-44: 11-12; cf. Nestor Courakis, Confronting Corruption in Greece: An Overview, paper presented at the Anti-Corruption Seminar 2011 in Lemessos, Cyprus on 11.3.2011, accessible on-line in: http://www.transparencycyprus.org/el/wordpress/wp-content/uploads/2011/03/Confronting-Corruption-in-Greece_16-12-11.pdf).
Some results of Greek studies on corruption
6. Ôhere are also other important surveys and researches on corruption in Greece. One could mention, within this frame, the research “Crime and Culture:the Relevance of Perceptions of Corruption to Crime Prevention”, which is a part of a more general project coordinated by the University of Konstanz, and conducted in Greece by Professor Effi Lambropoulou (Panteion University) between January 2006 and July 2009. The research examines the perception of political and administrative decision-makers and representation of various institutions and authorities, as a “bottom-up” procedure. The main finding of this research is that the official perception of corruption in Greece is not considerably different from the corresponding reports of international organizations, such as Transparency International, OECD and World Bank (E. Lambropoulou, Public vices - private virtues? Corruption and its discourse in Greece, Saarbruecken: Lap Lambert Academic Publishing, 2013, 4 and 85 ff).
Furthermore, there are two particular surveys concerning the attitudes of Greek university students towards corruption in relation to the economic crisis of the recent years.
7. The first survey was conducted in 2011 by Professor Calliope Spinelli (University of Athens) and the second one in 2014 by the author of this paper.
According to the results of the Spinelli survey, 67.7% of the students attribute the country´s economic crisis to corruption and 62.8% to politicians in general. In addition, more than 50% of the respondents point out that there is “considerable” or “a lot” of corruption within the Police, the City Planning Offices, the Public Health Services and the Taxation Offices. Interestingly enough, the majority of the respondents (72.6%) declare that those who are involved in active petty bribery for health reasons for themselves or for their relatives should not be punished. On the contrary, almost 90% of the students are of the opinion that both civil servants and businessmen engaged in bribery concerning public works should be punished.
8. On the other hand, according to the results of the Courakis survey, 57.95% of the respondents stated that they would never give money as bribery in order for their case to be handled by a civil servant in a more “favorable” or speedy manner. Furthermore, the respondents considered both petty corruption and grand corruption as almost equally serious (percentages respectively: 49.2% and 48.7%).
They also explained in a realistic manner the reasons why the acts of corruption in recent years are being “somewhat” more disapproved by the public than before (37.95%). The main reason for this development is, according to the respondents, the economic crisis and austerity, which have diminished people´s income (50.3% of the them said that shortfall of money explains “sufficiently” the possible opposition of the public to corruption –the same conclusion, as mentioned above, is adopted by the Transparency International-Greece in its recent survey as an explanation for the fact that petty corruption has been reduced since 2009). Other explanations which have contributed to this opposition, according to respondents and by rank of priorities, are: (a) that acts of corruption are not ethically correct, (b) that there has been a change in the way that political leaders and judges cope with the problem of corruption, and (c) that corrupt transactions are humiliating for persons who participate in them.
9. Concerning the priorities to cope with corruption, the respondents have stressed above all the importance of education of young people from kindergarten to university and, furthermore, the significance of meritocracy in selecting and promoting civil servants. Other priorities have been classified as follows: (1) strict implementation of corruption´s laws to everyone who violates them, hence also to persons of higher socio-economic level, (2) certainty of the arrest and conviction of the laws´ transgressors (an important priority, which was already stressed by Beccaria in his famous essay of 1764 on “Crimes and Punishments”, ch. XX), (3) restriction of complicated bureaucratic procedures and of unclear legislative procedures which make citizens´ assistance by civil servants difficult and therefore facilitate acts of corruption by them, (4) severe laws for every act of corruption (hence implementation of laws is more important than their mere promulgation!), (5) reinforcement of the (good) example given to the citizens by the political leaders and intellectuals through their own behavior, (6) information campaigns aimed at rendering the public more sensitive to matters of corruption, (7) in vulnerable state cases, preference should be given to electronic governance and the so-called Centers for Serving the Citizen (in Greece known as K.E.P..), i.e. state agencies which function as intermediaries between competent public services and citizens, rather than to direct contact between citizens and public servants.
A legislative definition on corruption
10. In Greece, the term “corruption” is not yet defined by virtue of substantive criminal law. However Greece has adopted, by virtue of Law-Nr. 2957/2001, the Council of Europe´s Civil Law Convention on Corruption (1999), which, in article 2, contains a rather comprehensive definition of corruption. According to this regulation, «For the purpose of this Convention ¡corruption¢ means requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof». In a more simplified way, the definition of this legal instrument can be formulated as follows: “Corruption is the illicit and abusive behavior of a (lato sensu) functionary who, within the framework of his/her duties, promotes the interests of another person (physical person or legal entity) in view to obtain for himself or for others a direct or indirect economic benefit” (Courakis and Mannozzi, op. cit., 2013:15). Transparency International¢s definition is wider and refers to “the abuse of entrusted power for private gain”. Under this definition, corruption can include not only bribery, which is the mainstay of the legal hardcore of corruption, but also some types of embezzlement, abuse of functions and/or power, misappropriation of funds or other diversions of property (a list of offences connected to corruption, such as bribery by national and foreign public officials or in the private sector, trading in influence, abuse of functions, illicit enrichment etc, is contained in Articles 15 ff of the UN Convention against Corruption of 31.10.2003: (http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf), which was also adopted by Greece (by virtue of Law-Nr. 3666/ 2008) and therefore makes part of its legislation.
Nevertheless, the term “corruption offenses” has been widely used lately for criminal procedure purposes. Art. 263B of the Greek Criminal Code provides for “measures of leniency for those who contribute to revealing corruption offenses”, whereas Art. 45B of the Greek Code of Criminal Procedure (introduced by virtue of Law 4254-2014) provides for protection measure for whistleblowers of corruption offenses. Last but not least, a “Special Prosecutor against Corruption Offenses” was set up in 2011 by virtue of Law-Nr 4022/2011.
Legislative framework in Greece
11. Concerning its legal framework against corruption, Greece has signed and promulgated into laws with increased formal validity (Article 28, Paragraph 1, of the Greek Constitution) all important international and European Conventions, as well as their Additional Protocols against corruption. In particular, Greece has given full legal force to the OECD, EU, Council of Europe and United Nations Conventions.
In addition, Greece has brought its national legislation in line with that provided by the aforementioned legal instruments, given that this interior legislation is based on the ¡typical¢ provisions on active and passive bribery (Articles 236 and 235 of the Criminal Code, as modified by art. One, Para IE.5 of Law-Nr. 4254/2014):
Article 236, (¡Active Bribery¢) provides and punishes in principle the case of a person who promises or offers to a civil servant, either directly or through the mediation of a third party, any kind of benefits for himself/ herself or for a third party, for future or already completed act or omission. The penalty for the said offence is: 1-5 years of imprisonment and fine of ¤5,000-50,000 if his/her act or omission pertains to his/her duties, and 5-10 years of incarceration plus fine of ¤15,000-150,000 if his/her act or omission is contrary to his/her duties.
(ii) Article 235, (¡Passive Bribery¢) regulates the case of a civil servant who asks for or receives, either directly or through the mediation of a third party, for himself/ herself or for a third party, any kind of benefits or accepts the promise thereof, for future or already completed act or omission on his/ her part the penalty is, similarly to art. 235: (a) imprisonment of 1 to 5 years and a fine of ¤5,000-50,000 if his/her act or omission is related to the performance of his/her duties and (b) imprisonment of 5-10 years plus fine of ¤10,000-100,000 if his/her act or omission contravenes his/her duties. In case that the value of the benefit is particularly high or the person involved commits his offense habitually or by profession, the penalty foreseen is incarceration of 5-10 years and a fine of ¤10,000-100,000.
Besides, if a civil servant merely exploits his position and asks for or receives thereof an illicit property benefit, he or she can be punished with an imprisonment up to three years, if his/her act is not punished heavier.
In both cases of Art. 235 and 236, as well as of Art 159 (below), a penalty of imprisonment of 10 days to 2 years is provided for the heads of civil services or private enterprises who by negligence have not prevented their employees to commit an act of passive or active bribery.
(iii) Apart from these, there are also provisions for specific cases, i.e. when (active or passive) bribery is committed in favor of or by:
a judge or an arbitrator(Article 237 of the Criminal Code, according to which these offenses are punished as a felony)
the Prime Minister, a member of the government, or the heads of Prefecture or Municipality for whatever kind of benefits, and the members of Parliament or of Prefecture or Municipality in relation to their duties or member of Parliament etc. in relation to the performance of their duties. The same penalty is provided for members of the European Commission or of European Parliament (Article 159 of the Criminal Code, according to which these offenses are punished as a felony). Furthermore, a penalty of incarceration of 5-10 years and a fine of ¤15,000-150,000 is provided for persons who, within this framework, commit an active bribery (Article 159A).
a member of the European Parliament and/or functionaries, judges etc, of member-states, of international or, supranational organizations, as well as when foreign officials are being bribed.
Furthermore, the provisions on (active and passive) bribery are equally applicable to cases of private-to-private bribery, mainly by virtue of Article 237B of the Criminal Code. Finally, the related offense of "trading in influence" is also punishable in Greece on the basis of Art. 237A of the Criminal Code. (Courakis and Mannozzi, op. cit., 2013, 16-17).
Law-Number 4254/2014 introduced, as already mentioned, protection measures for whistleblowers (involved or not involved in acts of bribery) who collaborate with the Authorities (Art. 263B of the Criminal Code and Art. 45B of the Code of Criminal Procedure).
The problem of political corruption
12. However, concerning the control and sanctioning mechanisms for politicians´ offenses (mainly for ministers and members of Parliament), these are very limited, thus allowing them frequently to shelter under the umbrella of a ¡scandalous¢ immunity.
In fact, although every year since 1964, MPs and ministers have been obliged to submit a declaration regarding their assets, in practice there has been no control or verification of it until recently when, according to Art. 56 of Law-Number 3979/2011, these declarations must henceforth be uploaded on the internet.
On the other hand, when a politician in Greece commits a crime, even a serious one, he/she does not have to follow the procedural rules foreseen for similar cases by the Greek justice system. This happens primarily because of the existing distinctly short prescriptions and secondly, because the Hellenic Parliament is the only organ which is deemed competent to exercise criminal prosecution against its own members. It should be noted here that, as a rule, such prosecution is avoided due to a tendency of politicians to protect their own as a manifestation of an “esprit-de-corps”. Nonetheless, this practice has already been roundly condemned by the European Court of Human Rights (cf. Syngelidis v. Greece, 11.2.2010, no 24895/07 (Sect. 1): http://english.dipublico.org/wp-login.php?action and: http://www.ethemis.gr/edda-11-02-2010-ipothesi-singelidis-kata-ellados-prosfigi-iparith-2489507/), as it violates the elemental principle of equal treatment before Justice, and, furthermore, it has been disputed repeatedly by GRECO (cf. the GRECO¢s Evaluation Report on Greece, dated 20-22.6.2012, pp. 9 ff http://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/GrecoRC3%282012%2910_Greece_EN.pdf.
13. As a result, a draft of law was promulgated and enacted as Law Number 3961/2011. This Law attempts to correct some of these incongruities and extravagances, allocating more responsibilities to the judicial power pertaining to the control of politicians¢ offenses. Besides, there have been already in the last years criminal prosecutions and convictions against ex-ministers mainly on the collateral basis of acts of money laundering and false asset declarations. Yet, the chances for legal amendments and for jurisprudential initiatives are restricted, since the whole issue is regulated directly by the Greek Constitution (Articles 61-62 and 86 of the Greek Constitution), which cannot be revised in the near future; besides, its revision is a competence of the ministers and members of Parliament themselves – a case-in-point regarding conflict of interest, or as Juvenal remarked millennia ago, ¡Who watches the watchers? (Quis custodiet ipsos custodies? Juvenal, Satire VI, lines 347-8).
Issues addressed in the EU-Report 2014 Relating to Greece
14. The European Commission in its Annex 8 (Greece) to the EU- Anti-corruption Report 2014 (http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-38-EN-F1-1-ANNEX-10.Pdf) points out numerous times that Greece is committed under the Memorandum of Understanding on Economic and Financial Policies to institute effective anti-corruption policies, to reform the judiciary and the public administration, public procurement, and to implement an anti-fraud strategy for EU co-funded projects. A number of measures and actions taken thus far in Greece in an effort to combat corruption are mentioned (cf. in the beginning of this paper, paragraph 1). Besides, according to this Report, the weaknesses or gaps identified in the case of Greece¢s anti-corruption policies are: (a) there are several areas in which Greece falls short of implementing the OECD Anti-Bribery Convention, in particular the country¢s limited ability to detect foreign bribery cases; (b) lobbying is not regulated in Greece (however, there are now provisions against trading in influence, according to Law-Nr. 4254/2014); (c) Greek media is vulnerable to potential undue pressure; (d) the internal control mechanisms within the civil service have proven ineffective, causing considerable backlogs in the system; (e) GRECO¢s recommendations on financing of political party relating to the need to: reinforce guarantees for tracing donations; ensure that loans are not used to circumvent party financing regulations; reinforce records and the transparency of party accounts; ensure independent auditing of political parties; strengthen independence, efficiency and transparency of the Control Committee tasked with the supervision of party and electoral campaign funding; enhance the monitoring of financial documents; and enhance the reporting and sanctioning mechanisms; (f) there are no ethical codes applicable to elected officials at central and local level; (g) MPs can be prosecuted or arrested only with prior approval of Parliament; and (h) ministers and former ministers benefit from an extensive statute of limitations regime.
15. As a result, a number of suggestions were made by the Commission to the Greek authorities in an effort to combat corruption, namely: (a) clientelism and favouritism in public administration require a more vigorous response; (b) ensure sufficient powers and support to enable the national anti-corruption coordinator to implement anti-corruption policies; (c) strengthen the supervision of party funding and the independence, efficiency and transparency of the Control Committee; (d) ensure a professional independent verification mechanism for asset declarations of high-level elected and appointed officials; (e) take steps to eliminate immunities; (f) reform the statute of limitations; and (g) enhance the oversight of public procurement.
It is evident that although these suggestions, together with the survey¢ s results on students´ priorities (cf. above, paragraph 9) concern primarily Greece, they can also, more or less, constitute a general catalogue of main techniques to tackle corruption and a check-list of necessary tools which constitute an effective modern anti-corruption strategy.
The Causes of Corruption, as a general basis for taking measures to cope with them
16. Concerning the causes of corruption (cf. Courakis and Mannozzi, op.c. 2013), it is evident that it can be favored or facilitated especially in societies and countries where:
•There exists a more general “climate” of tolerance towards corruption, as a result of an individualistic mentality and materialist orientation which gives priority to consumer goods and underestimates social or moral values.
•There are legal provisions which are complicated and need to be interpreted by officials or provisions which are unnecessary and create delays when they are applied. Furthermore, functionaries in certain areas of policy domains, have a wide field of discretionary power to interpret legal provisions.
•Officials in certain areas of policy domains are not the ones solely responsible to take decisions and to sign an act, so that they can sometimes feel free to ask for direct or indirect economic benefits in view of offering services to another person (for example, in view of issuing a license without delay).
•Officials are appointed and/or promoted to a position of the public sector not on the basis of a meritocratic system of selection, but according to criteria of nepotism and favoritism, being therefore dependent on politicians and on clientele-relations and having, consequently, a predisposition for trading in influence and even for corruption.
•There is direct contact between officials and private persons involved which facilitates clientele-like practices.
•There is lack of transparency at the level of formulation of administrative acts, so that it is not easy to find out which ones are being promoted. This situation can evidently favor an atmosphere of arbitrariness and immunity on the part of the functionaries and can offer, as a result, opportunities for corruption.
•There is lack of trustworthy and well-coordinated mechanisms of control and of law-enforcement and, as a result, legal provisions are ineffectively applied.
Measures taken by Greece to cope with the causes of corruption. Some examples
17. Among other measures in this direction, the following are worthy to be mentioned in connection to the causes of corruption:
˃Concerning the more general “climate” of tolerance towards corruption, which appears mainly in individualistic and consumer-oriented societies, it can be said that such a climate is not unknown in modern Greece, yet it has been restricted in the last years due to the crisis. Anyway, this climate of (implicit rather than explicit) tolerance towards corruption is fomented by a strong bureaucratic system, which causes serious hardships to citizens and dominates almost every domain and facet of their life. To overturn this negative climate that affects citizens, politicians and functionaries alike, is something which requires considerable effort at various levels, but mainly in schools and other educational institutions.
˃Regarding the problem of complicated legal provisions and excessive formalism in law, which leave officials wide discretionary power for interpretation, according to the ¡needs¢ and ¡wants¢ of each specific transaction, a solution could be the promulgation of concrete, clear and transparent (through the internet) directives, mainly in the form of circulars, as to how a solid and uniform interpretation of these provisions can be attained for all cases (for instance, there already exists legislation which provides ¡objective criteria¢ or a commonly-accepted formula, on how to justly estimate the value of a real estate, in order to juxtapose the analogous tax levy in certain areas of policy domains, instead of allowing the competent official wide discretionary power to interpret the legal provisions: cf. art. 41 of Law-Number 1249/1982 and art. 14 of Law-Number 1473/1984.
However, apart from these solutions, which could be manipulated on occasion by a shrewd functionary capable of finding a way to exploit the Law¢s weaknesses and loopholes, it would be equally advisable, as it is mentioned below, to clearly separate the officials from the implicated private persons, in order to remove the opportunity to trade influence and/or to enact illicit transactions through this contact.
˃Regarding the problems arising from the diffusion of responsibilities, it is evident that it would be necessary for the state to establish a clear job-description for each official and in particular to empower a designated functionary as responsible for having to sign a license or a certificate. In Greece there exist ¡Regulations of Services¢ for each public agency which fail, however, to describe the clear-cut duties of each functionary in detail, except for those who are heads of units. Additionally, there are also steps being taken to reduce the necessary signatures needed for the enforcement of an administrative act. Needless to say that such a restriction of responsibilities and consequent reduction of signatures would also diminish the delays of any bureaucratic procedure which plagues the system and citizens alike.
˃Concerning the case of functionaries being appointed and/or promoted to a public position as an eventual result of nepotism and/or of political clientele favoritism, it must be said that since 1994 (Law Number 2190/1994) initial access and appointments to public service in Greece are mainly realized according to a system of written competition, also known as A.S.E.P. (i.e. Á.Ó.Å.Ð.) for a number of administrative positions. By virtue of this system, the names of the candidates on their essays are concealed, so that the examiners and evaluators are not in a position to know the identity of each candidate and to thenceforth, illicitly promote some of them (by giving them better marks for example). More recently, the system of written examinations was supplemented by the provision (Law Number 3320/2005) of a verbal interview assessing the personal capabilities of each candidate; that addendum, however, made room for subjective, preferential and, thus, unsustainable evaluations. Most probably that was the reason that the above provision was later abolished (cf. Law Number 3812/2009). From a general point of view, the A.S.E.P. System has been credited as meritocratic as far as access to the civil service is concerned and no serious complaints against it have been raised until now. On the other hand, the system of promotions to a higher position in the public sector has sufficient formal guarantees to be considered as one which is based on objective evaluations. For example, the evaluation committee for high-ranked officials especially General Directors of Ministries, until recently was presided by an ex-judge. Nowadays, in accordance to Law-Number 3839/2010, the system has been further improved, as it was placed under the responsibility of ASEP and Ombudsman.
˃Concerning the problem of direct contacts between functionaries and implicated private persons, it is noteworthy that since 2002 there have existed offices of the State and of Municipalities which are called “Centres for Serving Citizens” (i.e. Ê.Å.Ð in Greek, or K.E.P. in English), and which function as intermediaries between public services and citizens. So, if a citizen needs a certificate, he or she can directly address the request to a K.E.P. which is in close proximity, instead of going to the public service division concerned. In this way, there is no contact between a citizen and a public functionary who might ask for a bribe in order for instance to ¡accelerate¢ the issuing of a certificate. It is evident that this system could be expanded (and this happens already to a certain degree) to, also, cover cases of issuing a license from a town-planning agency, or to cases of making an arrangement with a tax-agency on outstanding claims of taxes, given that these cases (together with the cases of bribe-money in hospitals) are the main categories of petty-corruption in Greece today.
˃Regarding the need for transparency in administrative acts, the case is clear, as transparency is a kind of self-evident ¡antidote¢, or even guarantee against corruption in the sense that the more transparency gains ground in public life, the less corruption can be developed there. An important step towards this direction has been made by the introduction of a project known as “Diavgheia” (=Transparency) by the Greek Government (Law Number 3861/2010, as amended by Art. 23 of Law-Nr. 4210/2013). According to this project, no state-act bearing any cost to the budget can be valid or executable, unless first, it has been made public knowledge, via the internet site of “Transparency” (https://diavgeia.gov.gr/), and has received a code number (as evidence that it has been publicly announced through the internet). Thanks to this project, any citizen, with access to a personal computer, can have good appreciation of what is going on in the public sector and consequently, quickly gain a fair knowledge of how to act to and also to react against illicit administrative actions, such as illegal appointments and promotions of functionaries, signing of inappropriate or illegal contracts for public works, and so on.
˃Finally, regarding the repression system and the need for trustworthy and coordinated mechanisms of control and law–enforcement, Greece, as was mentioned above, has a plethora of such mechanisms functioning at various levels of its Justice System, its Police Administration and its General Public Administration. Yet, it has lacked until recently a coordinating and oversight mechanism which would integrate their various, intertwined and overlapping efforts. A noteworthy solution to this conundrum has been in 2013 the establishment of a central Authority, which undertook the role of an ¡upper hand¢ in the anti-corruption endeavor (Law Number 4152/2013, Para IG concerning the creation of a National Anti-Corruption Coordinator and his Advisory Board). However, this authority, as it was mentioned in the beginning of this study (paragraph 1), was abolished by virtue of Art. 15 of Law-Nr. 4320/2015 and was replaced by an Anti-corruption Ministry and its General Secretary. A similar experiment was undertaken successfully in Hong Kong, where the so-called “Independent Committee Against Corruption” (ICAC), having been allocated a sizable budget of more than USD 90 million per annum, and enjoying legal and administrative autonomy (It can proceed to search bank accounts etc. and must give account only to the Government of Hong Kong), managed to combat corruption efficiently.
˃Apart from such an Authority which coordinates anti-corruption policies on a general level, having also the responsibility for the overall strategy on this issue and for its scientific documentation, it would be equally important to secure a better enforcement of law on various and specific levels, and mainly on the levels of disciplinary and judicial procedures. According to several reports, produced every year by the General Supervisor of Public Administration in Greece, the Disciplinary Councils show considerable leniency towards officials for whom there is evidence of bribery. Moreover, Greek Courts proceed to the trial of allegedly corrupt functionaries with great delay, and they finally either acquit them (as a result of the difficulties to obtain evidence or to ensure witnesses who could testify against a functionary), or pronounce a lenient sentence on them, usually suspended with probation up to five years or convertible up to five years to a fine (Articles 99 ff. and 82 of the Greek Criminal Code, as these articles were modified, f. ex. by Law-Nr. 3904/2010).
This phenomenon of ¡restricted immunity¢ is further connected with the criminal sanctions for bribery, which are foreseen by the Criminal Code, and which are indeed per se rather lenient (as it was mentioned above, normal bribery cases are mainly punished as a misdemeanor, hence with imprisonment up to 5 years, which can be suspended or converted to day-fines). Yet, this problem is after 2010 not particularly worrying because in serious cases, accusations of bribery are usually combined with other, more severe ones (i.e. for infidelity, money laundering, false asset declarations, fraud, or embezzlement of public money –cf. above, paragraph 13). As a result, even ex-Ministers, who were previously considered immune due to the a.m. special constitutional regulations, were finally prosecuted and convicted for corrupt acts committed during their term of office.
Taking into account the aforementioned observations, it would be appropriate to intensify Greek disciplinary and judicial law-enforcement mechanisms and at the same time, to promote programs of protection for witnesses who would like to testify against corruption, without the fear that this act might have any negative consequences for them (for example, the fear that they could be considered as perpetrators of active bribery -cf. however Art. 263B of the Greek Criminal Code, or that they could have ramifications with their future administrative transactions).
Instead of a Conclusion
18. There is no doubt that what is really need in Greece in order to fight corruption effectively, is the political will by the government in power and the political opposition parties to act in tandem.
Trust-building measures in countries that face financial problems ought to be implemented without delay and not wait until the country is facing a catastrophe. The European Union and the Eurozone owe it to their members to safeguard the Eurozone by encouraging the fight against corruption particularly in countries with problematic economies, like in southern Europe, rather than punish the breadwinners for failures of the system caused by the decision-makers to begin with.
N.B. The above paper is based on a contribution entitled “Anti-corruption measures: The Panacea to a Financial Cliff” and was prepared as a common article together with Associate Professor Maria Krambia-Kapardis, Cyprus University of Technology, to be published in the coming months by Springer Verlag as part of a collective volume on financial crimes.
Nestor Cïuraêis is Professor of Criminal Sciences at the University of Nicosia, Cyprus. For 34 years he has been Lecturer and then Professor in the Faculty of Law, University of Athens, where he has taught Criminology, Criminalistics, Penology, Economic Crime, Gender Criminality, Theory of Penalty and Criminal Policy. He holds a law degree from the University of Athens, "Diplôme d´ Études approfondies" (Law Faculty, Univ. of Paris II), the Diploma of the Institute of Criminology of Paris and a Ph.D in Penal Law from Law Faculty, Univ. of Freiburg, Germany. He has been elected and taught as Visiting Fellow at Brasenose College, Oxford University (1996, 1997) and has also been elected as member of the European Academy of Sciences and Arts (2012). He has been a member of the Committee for the drafting of a new Greek Penitentiary Code and has represented Greece internationally. In 2013 he was appointed Head of the Anti-Corruption Advisory Board of Greece (until 2015). Çe has been the scientific supervisor of research teams on Hooliganism, on Juvenile Detainees, on Female Detainees, on Juvenile Gangs in Athens and on Euthanasia. He has published or edited more than 14 books and about 200 articles in legal reviews or congress acts and honorary volumes in English, French, German Italian and Greek. Email: email@example.com
Professor, University of Nicosia, em. Professor, University of Athens. The author wishes to gratefully acknowledge the assistance of Dr. Dimitri Ziouvas, Assistant Professor of Economic Criminal Law at the Panteion University of Athens, in the preparation of the final text.
By Ioannis Tentes
Honorary Prosecutor of the High Court of Justice, National Coordinator against Corruption until March 2015
Corruption constitutes a timeless and generalized phenomenon; an unhealthy phenomenon with multiple and severe consequences. Corruption wears down institutions; it is a danger to democracy, it causes inequalities and it affects human rights. Furthermore, corruption deprives public resources, causes distortion to the competition and prevents economic growth.
Corruption is a complicated phenomenon. For that reason the reaction to it should be complex, multilevel and systematic. In other words, confrontation of corruption should have the characteristics of a strategy.
The Greek systematic answer to the above was the recent establishment of the National Anti Corruption Coordinator.
First of all, let me explain to you the mission of this institution and describe its responsibilities and characteristics.
Its first and most important responsibility is the formation of the National Strategy for the prevention and suppression of corruption phenomena.
Its second responsibility is the monitoring of the appropriate strategy¢s implementation by public services and by other stakeholders involved in its implementation as well as the evaluation of this implementation.
Finally, the National Coordinator is responsible for coordinating the actions of all entities involved in the fight against corruption such as: ministerial and administrative services overall, authorities such as the General Inspector of Public Administration, the Financial Intelligence Unit, the Financial and Economic Crime Unit, Judicial Authorities in general (to the extent that their constitutional independence is not affected) etc.
I will briefly explain some of the characteristics of the National Coordinator which are indicative of his mission, his dynamic and his solemnity:
a – The National Coordinator is an independent state entity. The founding law explicitly states that: “The National Coordinator is fully independent in the performance of his duties”.
b – He has a wide scope which extends to all levels of the public sector: political, governmental, judicial and administrative.
c – He is, essentially, a policy making authority. He forms the National Strategy against Corruption. This specifically means:
- He formulates a relevant Strategic Plan, which he translates into concrete measures, actions and updates it, when necessary.
- He develops and specifies practices within existing institutional framework.
- He acts as the driving force behind amendments and supplements to the normative framework, when this is needed, by streamlining the legislative procedure with his proposals and ideas.
d - The use of the term “Strategy” in the founding law is not accidental. It is intended to state that it concerns more than mere ¡policy¢. Strategy is the long term, complex and multifaceted policy; the integrated policy.
e – His policy making competence is also surrounded by control (in a broader sense of the word) and coordinative responsibilities. His primary goal is to accomplish unity, awareness and effectiveness.
The Greek institutional framework includes a variety of strict laws against corruption as well as credible law enforcement authorities. However, except for the necessary amendments and improvements to the legislation, there is a pressing need for rational organization, systematization and coordination of the various prosecution mechanisms, as well as for implementation of modern prevention policies.
The fact of the establishment of the new National Coordinator¢s institution and the messages we received from the contacts we had so far show the solid and strong will of the Government, the Parliament and the entire Greek society to attempt a systematic and concerted crackdown on corruption.
The major pillars of the National Coordinator¢s Strategy are the following:
1. Enforcement of the audit mechanisms such as the Financial and Economic Crime Unit, the General Inspector of Public Administration and of the judicial system.
In particular, as far as the audit mechanisms are concerned, the reform will be concentrated on their legislative framework and on their action methodology with the introduction of a risk based audit system. Also, the reform should take into account the introduction of best practices, the enforcement of cooperation among the various audit bodies as well as the inauguration of a more effective system of receipt, elaboration, evaluation of information and complaints management.
Concerning the judicial system, the interventions should concentrate on the areas of reforming and completing the penal code, introducing whistleblowers protection, enforcing asset recovery and accelerating the procedure of justice award.
2. The second major pillar of our strategy is the reorganization of public administration with the introduction of more simple and standardize procedures, minimization of the contact between the public servants and the citizens in order to prevent corruption opportunities as well as the introduction of internal control systems and code of conducts.
3. The third pillar is the communication plan in order to raise public awareness on the negative consequences of corruption, sensitize and mobilize citizens in the fight against corruption and urge them to demand accountability and information. Also, private companies should be our ally in the fight against corruption with their urge to comply with rules that enhance transparency in order to promote entrepreneurship. Corruption hinders growth through the increase of investment cost and distortion of competition.
4. The fourth pillar is the training program. Training refers to the constant training of auditors, judges, prosecutors and to the introduction of a relevant course on corruption issues in all levels of education; primary, secondary and university level.
5. Last but not least, the National Coordinator¢s strategy includes initiatives for the promotion of the coordinative and supervisory role of the National Coordinator as well as the evaluation of all the necessary information for the constant update of the National Strategy.