The former Minister of Justice and Public Order, Ionas Nikolaou, in a letter to the members of the Legal Committee of the Parliament, points out his objections regarding the assignment of investigative powers to the Anti-Corruption Authority. Mr. Nikolaou, who was the architect of the drafting of the relevant bill, disagrees with the position that the Authority will be “toothless” if it does not have investigative powers.
Ionas Nikolaou states in his letter that it is important that the suppression of corruption “be done by a specialized law enforcement authority, which gathers all the evidence and guarantees to avoid any interference or obstruction”.
In his view, which was formed from the study of systems of other countries, together with the Anti-Corruption Authority, a Unit for Combating Corruption could be set up, which can investigate corruption offenses. According to the former minister, the unit will operate under the attorney general and will be staffed by Legal Service officials, and experienced police investigators, who will have official independence and will report to either the attorney general or the assistant attorney general. Within its remit, this unit will be able to investigate acts of corruption involving both the public and private sectors.
As Ionas Nikolaou emphasizes in his letter, “the elimination of challenges regarding the ability of law enforcement authorities to investigate and prosecute corruption effectively can be addressed by specializing in the investigation of corruption offenses which will contribute to addressing issues such as the ability of dealing with excessive or vague provisions for the waiver of immunities or rigid rules on access to banking information that impede financial investigations;
Ionas Nikolaou calls on the deputies of the Legal Committee to weigh the advantages and disadvantages of the assignment of investigative responsibilities “to an Authority whose appointment framework can not guarantee the guarantees of its effectiveness, independence and integrity”. As noted, the operation of the Authority with investigative powers will not be able to ensure its effective coordination with law enforcement authorities (Police, Customs, etc.), it will have operational weaknesses, inability to respond to investigative responsibilities or difficulties or particularities due to absence experience, adequacy of staff, interrogation skills, resources and structured structure, which will be an obstacle and an obstacle to the effective prosecution of corruption at a time when impunity and inadequacy in the investigation of corruption offenses are being discussed “.
Repression is not enough
Ionas Nikolaou refers to an EU report on corruption which, among other things, points out that it is difficult to assess all stages of the corruption process, as in most Member States there is no consistency in statistics. However, the conclusions of the report as recorded are indicative of the problems and their magnitude, when the part of the suppression of corruption will be entrusted to an Authority without guarantees of effectiveness.
• Repressive measures, as noted, alone are not sufficient to tackle corruption effectively. Nevertheless, the ability of the courts to impose dissuasive criminal sanctions plays an important deterrent role and is a clear indication that corruption is not tolerated.
• The independence of the investigative authorities and the judiciary are key elements in the fight against corruption in terms of the ability of the investigative and judicial system to deal effectively with corruption cases, including at the highest levels, as well as in terms of integrity standards. formed within them, in order to administer justice in cases of corruption, in an objective and impartial manner, without any undue influence.
• In other cases, anti-corruption law enforcement agencies have addressed the interference of political actors in their management and operation. The broad powers enjoyed by anti-corruption actors are not always combined with accountability, which raises suspicions that they may be reluctant to disclose high-profile cases or resort to controversial investigative methods.
Individual country-by-country analyzes highlight concerns about the integrity of investigators, prosecutors and judicial officers dealing with corruption cases and concerns about their independence and integrity, as evidenced by the scope and type of corruption cases in which they are involved. . One Member State has set up a special anti-corruption court which has faced significant challenges (even temporary dissolution), which affect its stability and its ability to establish a convincing history.
• In several Member States, there seems to be a lack of will and ability to deal with complex or sensitive corruption cases.
The limited deterrence of sentencing has also been noted in many Member States, where the frequency of suspension of sanctions or the imposition of extremely lenient sanctions in corruption cases has been observed as a common occurrence.
• It should also be noted that procedural gaps can often hamper the investigation of corruption cases in some Member States. Examples include excessive or vague provisions for waiving or incorrectly applying immunities and limitation provisions that prevent complex cases from being completed, especially in conjunction with lengthy procedures or rigid rules for accessing banking information that impede financial research and cross-border cooperation.
Issue of separation of powers
The former Minister of Justice refers to the history of the drafting of the bill, emphasizing that the process of appointment and dismissal of the commissioner and his assistants (of the Anti-Corruption Authority), as was the composition in the original bill, was the subject of intense reflection and extensive discussion with the then Attorney General Costas Clerides, as well as the concession of investigative powers to the Authority. Various options were proposed and discussed that could further ensure the Authority's independence, even if it did not have investigative powers, which were unfortunately judged by the Advocate General to be in conflict with the Principle of Discrimination. The regulation in the bill was a solution of necessity, knowing that it would cause reflection and discussion during the examination of the bill in the competent parliamentary committee. That is why any choice, apart from the consideration regarding the constitutionality, should ensure the guarantees of independence and the absence of political interventions, such as the participation of the House of Representatives in the process of electing its members, factors that according to the report affect the (temporary or long-term) success of anti-corruption services.
The EU report, which dealt with the appointment and dismissal of law enforcement officials, states: “There is no single standard that can be used as a model for the appointment and dismissal of law enforcement officials. or prosecution services. These decisions are taken, in most Member States, by governments as an expression of political responsibility and reflect the position of law enforcement authorities within the executive. “Regardless of the procedure followed, the procedure must be credible and meritocratic in order to avoid any impression of political bias and to allow the Police and prosecutors (investigators) to investigate corruption cases wherever they find them.”
Although the success of the Anti-Corruption Authority as a control mechanism and not as a law enforcement authority could, according to the report above, be judged “as an expression of political responsibility within the executive”, nevertheless Nikolaou considers that due to the extent and nature of corruption in Cyprus, the operation of the Authority as a central control mechanism is strengthened by the trust and independence it must enjoy and the avoidance of defamation attempts. The regulation of a transparent selection process of its members and the necessary safeguards for their non-objective reason for termination, offer added value to its operation and efficiency.
Therefore, setting up a selection process from a list of candidates, three times the number of its members, to be proposed by an Advisory Council and appointed by the Council of Ministers is perhaps the best possible transparent procedure. The Advisory Board will be composed of non-political persons, such as former judges, representatives of trade unions and NGOs, academics and personalities of the scientific world, and will prepare evaluation reports for each of the candidates, which it submits in alphabetical order to the President of the Republic.