Family Courts in Crisis
Judicial Corruption, Human Rights
Violations & Organized Crime: Connecting the Dots
An ideology is a conceptual framework with the way people deal with reality. Everyone has one. You have to -- to exist, you need an ideology. The question is whether it is accurate or not. (Alan Greenspan)
In other words, you found that your view of the world, your ideology, was not right, it was not working? (Rep. Henry Waxman)
Alan Greenspan's - House of Reps Com. on Oversight & Govt Reform, Oct. 2008
Countries… have systematically denied the existence of organized crime. Believing that in this way the danger will disappear, like an ostrich that hides its head under its wing when danger approaches…
Know your enemy, because if you do not know what you are up against, you will have a hard time confronting it, a hard time combating it. And, if you [try to fight them] without knowing what you are facing, they will always have the advantage, that is to say, they will always be two steps ahead of you. That is what has happened in the world… and has been this way for a very long time, even today.
A World Without Fear, Baltasar Garzón
The Impact of Corruption on the Rights to Equal Access to Justice & Effective Remedy
THE INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY
The Impact of Corruption on the Rights to Equal Access to Justice & Effective Remedy
Corruption in the judicial system undermines democracy and human rights as well as diminishing economic growth and human development. The judicial system is the cornerstone of democracy: the enforcer and interpreter of the law passed by the legislature and implemented by the executive. It is also the final arbiter of disputes between parties. If a justice system is corrupt public officials and special interest groups can act in the knowledge that, if exposed, their corrupt and illegal acts will go unpunished. Public confidence in governance and the institutions of state is eroded as judicial corruption facilitates corruption across all sectors of government and society. Human rights are debased as citizens are not afforded their rights of equal access to the courts, nor are they treated equally by the courts. The international business community is reluctant to invest in countries – often developing countries that most need investment – where there is no certainty in the rule of law and no guarantee that contracts will be respected because the judicial system is in the service of those in power or with the deepest pockets rather than in service to the rule of law.
International Instruments that Oblige States to Combat Corruption in the Judicial Sector
Human rights lawyers and activists are familiar with the range of rights that international and national bodies, notably the UN but also the Council of Europe, increasingly the EU, many regional bodies as well as national systems, have agreed that citizens should enjoy vis-à-vis access to justice as well as the obligations these bodies have conferred on states to provide fair, effective and prompt access to justice. They are perhaps less familiar with the “daily bread” of anti-corruption activists: the international obligations on states to prevent and combat corruption throughout all institutions of state and sectors of society and to prosecute private sector companies that bribe foreign officials as well as a menu of international and national criminal laws and soft laws tackling corruption. There exist also myriad international instruments that regulate the behaviour of judges and the judicial system. Unfortunately many of these standards have not been fully implemented. However with strong political will they are ready and waiting to be invoked. These standards include the Bangalore Principles on Judicial Conduct (2002); UN Basic Principles on the Independence of the Judiciary (1985); UN Basic Principles on the Role of Lawyers (1990); UN Basic Principles on the Role of Prosecutors (1990); Council of Europe Recommendation no. R(94) 12 of the committee of Ministers to Member States on the Independence, Efficiency and Role of Judges (10/13/93); Council of Europe European Charter on the Statute of Judges (07/08-10/98); Latimer House Guidelines for the Commonwealth Judges (1998) & Latimer House Principles on the Accountability & Relationship Between the Three Branches of Government (2003); The Limassol Conclusions for Commonwealth Judges (2002); the International Bar Association, Code of Minimum Standards of Judicial Independence (‘New Delhi Standards’) (1982) amongst a great many others.8
As indicated in the preceding paragraph, the international legal community has developed a great body of standards on judicial independence but it has been less active in developing standards on judicial accountability. In this regard anti-corruption conventions offer much to the promotion of accountability in the judicial sector.UN Convention Against Corruption (UNCAC) is of particular significance to those seeking to tackle corruption in the judicial system. Its provisions encompass a holistic understanding of the underlying causes of corruption and the myriad opportunities for corruption to fester and grow. It allows for countries to assess, promote and implement anti- corruption and judicial reforms and to measure the progress of their reforms. UNCAC covers a range of corrupt activities with the main focus on preventing and punishing the bribery of public sector officials including judges. Bribery encompasses payment and receipt of bribes, as well as diversion of property by public officials. UNCAC also covers the bribery of private sector employees and embezzlement by them. Apart from these criminal offences, corruption addressed by UNCAC includes nepotism and favouritism in public sector recruitment and promotion. Related offences covered include laundering the proceeds of corruption, aiding and abetting corruption and obstruction of justice.
Actors in the Judicial System
There are many actors in the judicial system who can contribute to corruption in the judiciary. Judges, magistrates, prosecutors and judicial officers work in a complex environment, interacting with a range of other actors who can affect the way in which they perform or are perceived to have performed their duties. These other actors include judicial associations, politicians, citizens and businesses, journalists and other media actors, academics and NGOs as well as donors who support judicial reform programmes. In this section each actor is examined in turn in order to assess what duties or responsibilities they have to perform in order to challenge corruption in the judicial system. In so doing the kinds of obstacles they face – as duty-bearers to provide fair justice for all– are eked out.
Responsibilities of Judges
Judges, as individuals, have many responsibilities and with these come a range of risks of corruption. Their responsibilities pertain to the following areas, which map up to principles of good, clean judiciaries: “independence and impartiality”, “integrity”, “education”, “legal accountability”, “administrative accountability”, “judicial office is not to be abused”, “conflicts of interest must be avoided”, “freedom of speech and association” and “discipline and removal from office”…. Human rights lawyers and activists will no doubt recognise these responsibilities and be able to re-cast them in terms of rights and obligations of citizens and states vis-à-vis access to justice requirements (including administrativeprocedures)under international human rights law.
Responsibilities of the Judiciary
The judiciary as a whole, as distinct from individual judges, has particular responsibilities regarding several key areas that are essential to the overall integrity of judicial systems… which are the principles of “judicial independence”, “ethical conduct”, “clean appointmentssystems”, “accountability and transparency” and “discipline”.
Responsibilities of Politicians (Legislature and Executive)
As mentioned at the outset of Part 3, actors beyond the justice system play a key role in its fair and clean operation. The relationship between political actors both within the executive and the legislature and the judiciary is finely calibrated.Where the legislature is involved in determining whether or not a judge should be suspended or removed, it must carry out its functions fairly and transparently without undermining judicial independence. The executive can play a vital role in bringing transparency to the workings of judicial systems and educating the public about the law, legal and court systems, legal rules and procedures, as well as legislation and judicial information.
Responsibilities of Judges’ Associations
Judges’ associations have responsibilities in three main areas that pertain to a healthy fair justice system: that of protecting “judicial independence”, “promoting judges’ training and public education” and ensuring “judicial accountability”.
Responsibilities of Prosecutors
Prosecutors must protect their independence. They should submit themselves to appropriate oversight of the prosecution service. They are obliged, like judges, not to accept or seek gifts or allow threats or any improper inducements to influence a decision about when to prosecute. They should never withhold evidence so that they only mount an ineffective challenge to defences or weaken arguments in favour of conviction or penalty.
Responsibilities of Lawyers
Lawyers have a role in protecting the independence and enhancing the accountability of the judicial system. They can also represent corruption risks if their behaviour is not carefully considered. Lawyers should not seek to influence the decisions of judges in any way that is improper or outside the bounds of the law and legal procedure. They should not mislead the court or clients, nor should they accept gifts, bribes or inducements of any kind.Lawyers have a responsibility concerning the work they take on and carry out. They are responsible for the management of their caseloads and must not overstretch themselves otherwise they run the risk of cutting corners and impeding justice. They should not accept new cases knowing that a hearing will clash with an ongoing case or seek adjournments unnecessarily or for the sake of their own convenience or personal gain. They also have a duty to report any unethical behaviour to the relevant professional body that is uses settled complaints procedures. Indeed should they be privy to criminal behaviour or anything that improperly influences judicial decisions, they have a duty to report it to the relevant law enforcement body.
Role of Individuals and Businesses
Litigants and defendants have a responsibility not to undermine the independence of the judicial system. They must respect the legitimacy and authority of the courts. Indeed they must accept the decisions of the courts and submit to any enforcement procedures. They should not seek to improperly influence the decisions of judges whether by words, acts of violence or the paying of bribes.10
They also have a responsibility to enhance accountability in the justice system. Individuals should report suspected or actual breaches of the code of conduct, or corruption by judges, court administrators or lawyers, using formal complaints procedures that are safe, confidential and rigorous. They must not seek to influence the outcome of any disciplinary proceeding or initiate vexatious or malicious proceedings.
Role of the Media and Journalists
Journalists need a safe working environment in which to report on the activities of the judiciary and legal proceedings. They have a role in bringing transparency to the workings of the judicial system and informing the public of the work of the judiciary. Journalists must take care to respect judicial independence and not use their publications and media outlets to seek to influence or intimidate judges. However this principle is not to be used to prevent journalists from commenting fairly on legal proceedings, and reporting suspected or actual corruption or bias. Journalists should not be prevented in law from reporting on legal issues, nor should they themselves be intimidated or prevented from operating. Should defamation charges be brought against journalists and media outlets and proven, the amount of damages awarded should not be punitive. Steps should be taken to ensure that journalists are trained in legal reporting so that reports of cases, judicial activities and anti-corruption procedures or inquiries are fair and accurate. Journalists should be encouraged to comment on any complaints or disciplinary procedures where they are made public, holding to account those involved on either side of disciplinary procedures by making transparent their workings.
Role of Civil Society
Civil society in this context refers to academics and NGOs. They too have a significant role in shedding light on the workings of the judiciary thereby helping to mitigate any risks of corruption that are fostered by shady dealings in secret places...They can also contribute to the understanding of issues relating to judicial corruption by monitoring potential indicators of corruption, such as the incidence of corruption, engineered delays and the quality of decisions and by commenting on the decisions of judges. Their expertise can be shared with judges in developing training strategies for judicial actors.
Role of Donors Supporting Judicial Reform Programmes
Judicial reformers, whether they be international institutions such as the World Bank, the International Bar Association, the American Bar Association, bilateral donors or indeed national institutions such as Ministries of Justice or national bar associations, have traditionally focused their reform efforts on bolstering judicial independence against interference from other organs of state, particularly the executive. While this is right and proper this emphasis has meant that less attention is given to the role of accountability measures in tackling corruption. Indeed accountability mechanisms can themselves serve to strengthen judicial independence since they are not just a means of holding the judiciary to account for its actions and decisions, but they are also a way of making transparent the relationship between the judiciary and political power and guarding against undue political interference in the judicial system.11
This essay makes the plea to the human rights community: demonstrate and explain to those in the anti-corruption community where and how human rights principles can be used to advocate for the systemic changes that are outlined above in order to tackle corruption. Inform anticorruption activists which human rights can be invoked in order to bolster the common concern, of human rights and anti-corruption activists alike, for a corruption-free judicial system which enables access to justice for all especially the most vulnerable of citizens in countries across the world.
Examining the Links between Organised Crime & Corruption
by the Center for the Study of Democracy
The European Commission (EC) contracted the Center for the Study of Democracy (CSD) to analyse the links between organised crime and corruption. The main objectives of the study were to identify:
> causes and factors that engender corruption by organised crime (including white-collar criminals) within the public and private sectors,
> the scope and the impact of that corruption on society and institutions;
> organised crime’s main corruption schemes, the areas or risks they create, and the related differences amongst European Union (EU) Member States (MS);
> best practices in prevention and countering corruption linked to organized crime;
> framework for a future assessment of trends in the link between organized crime and corruption, as well as corresponding counter measures.
Colin Nye, speaks of corruption as the abuse of public power not solely for private profit or wealth but also for “status gains” (Nye 1967), and Khan (1996) who defines corruption as the misuse of public power for motives such as wealth, power, or status. ... Heidenheimer (1989), categorises corruption according to social acceptance, positing ‘shades’ of corruption from ‘white’ (socially acceptable) to ‘grey’ to ‘black’ corruption (socially unacceptable)...Spencer at al. (2006) describe corruption as “many kinds of “irregular” influence, the objective of which is to allow the participants to make profits they are not entitled to, the method being the breaking of internal or external rules”. .. Spencer et al. (2006) differentiate between the following levels of corruption:
> systemic, when corruption is incorporated within the entire or particular aspect (e.g. border control) of the rule of law system (multiple institutions: judiciary, police, customs, tax, etc.);
> institutional, where the institution affected is tolerant of corrupt practices;
> individual, where the person is prepared to undertake illegal actions because their employment provides them with an opportunity to exploit their position for gain.
All these levels are relevant when the links between corruption and organized crime are discussed. While some limit the term ‘corruption’ only to the public sector, private sector corruption will also be considered in this report. Private sector corruption is most often referred to as ‘fraud’.
For the purposes of the present report, the focus will be on cases in which outsiders (criminal groups or companies) corrupt someone within a private firm in order to facilitate a crime, launder money, or abuse the targeted company in some way. Further aspects of private sector corruption and some of the possibly grey areas are further discussed in the chapter on private sector corruption.One complex issue that spreads across both definitions ‘corruption’ and ‘organised crime’ is the question of how to treat the direct participation public officials in criminal activities: particularly in cases where they are not simply abusing their ‘public powers’, but engaging in a range of criminal activities, or managing a criminal enterprise. Examples could be:
> cases of police officers running their own prostitution rings or drug distribution networks;
> politicians covertly controlling companies that engage in criminal behaviour;
> cases where criminals have managed to accumulate sufficient legitimate power than to directly participate in local politics (‘state capture’).One important aspect of explaining the links between corruption and organised crime involves determining the extent to which the two are interrelated… The perceived link between corruption and organised crime prompted the UN General Assembly to adopt resolution 55/61 in December of 2000 recognizing that an effective international legal document against corruption, independent of the Convention against Transnational Organised Crime, was necessary. The UN Convention against Corruption adopted consequently declares that States Parties to the convention are “concerned also about the links between corruption and other forms of crime, in particular organised crime & economic crime, including money-laundering”The Council of Europe has also acknowledged the existence of links between corruption and organised crime. One of the 20 Guiding Principles for the fight against corruption, adopted in 1997 seeks “to ensure that in every aspect of the fight against corruption, the possible connections with organised crime and money laundering are taken into account”. The link between corruption and organised crime has received some, although not yet sufficient attention at EU level. In 2004, Europol recommended that “the vulnerability to corruption of the public and the private sector needs to be properly evaluated… [given that a] clear-cut picture on the use of corruption by OC groups does not exist”
The lack of information and understanding of the issue is reflected in the fairly limited attention that it has received in EC policy documents and legislation. In 2003, Council Framework Decision 2003/568/JHA on combating corruption in the private sector was adopted, mandating the criminalization of corruption and establishing that legal, in addition to natural, persons could be held responsible for corruption offenses.
MAPPING CORRUPTION AND ORGANISED CRIME IN THE EU
Several clusters of EU countries could be hypothesized to have their roots in history as well as geography: Southern Europe (Italy, Southern France, Southern Spain), Eastern Europe (the Balkans, the Baltic region and Poland) and the Netherlands and UK. The southwest hub, characterized by the oldest traditions in organized criminal activities, is centred around Southern Italy. It affects the whole of Italy and is connected to Corsica, Southern France and Spain, although its influence spreads to places in Germany or the Netherlands. The prehistory of this cluster’s hub dates to the establishment of the Italian state… Following acts of violence against magistrates at the beginning of the 1990s and the introduction of new Italian policies aimed at crushing organised crime, there was a tangible reduction in the range of activities and the forms of influence exerted by big traditional crime groups… there is a tendency at present by traditional criminal structures to apply ‘softer methods’ that involve less violence, cronyism, the use of immigrant crime organizations, etc. At the same time, the old methods still persist. There is clear evidence of extortion and racketeering in efforts to influence local authorities and public tenders…. new collaborations with other criminal structures from the Balkan countries, China, Latin America and Russia. The Italian- Spanish criminal networks established during the period of the ‘French connection’ got their golden chance for money laundering with the explosion of the real estate market in Spain. Taking of advantage of the Spanish state’s preoccupation with terrorism, organised crime invested in construction and tourism. Simultaneously, organised crime groups based in Corsica, Southern France and Spain have maintained their presence, despite the expansion of immigrant involvement in organised crime and despite the emergence of flourishing new criminal markets in cocaine, prostitution, and money laundering via real estate.
Four key factors from the recent history of EU-10E countries should be taken into account:
> The informal networks of former communist elites, particularly law-enforcement agents;
> The significance of privatisation process and the opening of borders in the origins of organised crime;
> The impact of criminal structures from the former Soviet Union at the beginning of the 1990s, and the ongoing instability in the Caucuses, Moldova and Ukraine;
> the wars in former Yugoslavia and the Yugoslav embargo in particular for Western Balkan countries, but also for countries neighbouring Serbia; and the ongoing instability in Bosnia and Kosovo…
The number of law-enforcement officers and police informants in Eastern Europe before 1990 was at an entirely different scale than in Western Europe. With the dissolution of secret police services, many of them turned to various criminal activities (e.g. protection rackets, cross-border smuggling, and embezzlement in the massive privatisation process). These criminal networks from the 1990s eventually lost their power but were transformed into networks of companies that presently manage to influence both the formal economy and various grey areas of the criminal economy, in either case actively resorting to corruption. During the past two decades, the communist-era law-enforcement origins of these individuals provide them with law-enforcement connections that allow them to avoid prosecution.
Former MoI or special services officers use the specific law-enforcement culture of loyalty to form networks that allow former officers access to police information, often resulting in competitive advantage in business projects or bids for public contracts. Many former officersturned to being lawyers and became intermediaries between organised crime, law enforcement and the judiciary. The networks consist of current MoI / law nforcement officers, prosecutors, or judges, as well as their families that often enter similar professions.
The historic legacy of privatisation of state assets: in the early 1990s, between 70% and 100% of property in EU-10E countries was state-owned. Instead of guarding the legality of this process, law enforcement and the judiciary often profited from it. As a result, today’s economic elites are often part of the above described networks. The abuses of privatization processes, much like public tenders today, attracted organized crime and provided it with opportunities to accumulate economic power and legitimacy. In a period when access to capital was limited and foreign investors wary, criminal profits were invested in privatisation.
The opening of borders in former communist countries allowed former security officers with connections to border police and customs to quickly assume key roles in controlling cross- border smuggling of consumer and excise-tax goods. Again, access to corruption networks was instrumental in assuming this role. The Basque Country (Spain), Northern Ireland (UK), and Corsica (France) are the three regions where terrorism and independence movements are a continuing problem. The long history of terrorist activity has created networks of loyalties between terrorists, parts of law enforcement and local politicians. With the signing of peace accords in Northern Ireland, many former terrorists turned to organised crime, controlling the drugs trade or providing protection rackets of prostitution networks, occasionally drawing on historic loyalties from law enforcement to avoid prosecution (CS-ES, UK). The case study on France also shows in detail how the various independence groups have used (and continue to use) criminal activities to fund their operations. It also shows how under the guise of independist movements certain groups facilitate their criminal operations.
> The significant differences in economic development and national institutions in the EU, especially since the latest enlargement in 2007, is one of the most important factors affecting clustering. The most affluent country in the EU is anywhere from three to five times richer than the poorest Member State, depending on whether nominal GDP per capita or GDP PPP29 per capita figures are used. The differences are even more striking if regional disparities within and between countries are taken into account, as well. That is, if one were to compare the richest EU regions in some EU-17 countries to the poorest regions in Northwest Bulgaria, Northeast Romania, Southeast Poland, etc. Such disparities create conditions, where low-paid public officials in poorer countries are much more likely to engage in corrupt behaviour. The disparities, on the other hand may influence the size of illegal markets. EU-17 illegal markets for drugs, illegal cigarettes, or prostitution are much larger than those in EU-10E countries.
>Other socio-economic factors, such as the absolute size of a country’s economy and its demographics, also influence the structure of organized crime markets. In this manner, large economies such as those of France, Germany and the UK generate high levels of overall consumption and demand for illegal goods or services. On the other hand, criminal organisations find countries with high per capita incomes, yet smaller overall population levels, (Denmark, Finland, Ireland or Luxembourg) as less profitable than big
On the other hand in smaller countries, resources are highly concentrated in small public administrations, and few public officials there fall under more corruption pressure. Thus, despite the fact that the overall size of a country’s economy drives levels of demand for illegal goods and acts as a significant factor in attracting organised criminals, highly affluent locations, such as big cities, act as magnets for the concentration of OC activities. For this reason, interviews indicated that organized criminal activity and corrupt practices were highly concentrated in cities like Amsterdam, Barcelona & London (CS-NL, CS-ES, UK).
> A more pronounced presence of multinational corporations (MNCs) in large EU economies also results in regular scandals and suspicions regarding white collar crime and private sector corruption. This rarely discussed topic relates to political parties that are dependent on corporations for their financing. All too often, arguments favouring MNC investments, because those are supposedly ‘in the national interest’, hide the reality of clientelistic relationships between transnational big business and national political elite. Differing taxation levels (of VAT or excise taxes) also lead to differing outcomes in organised crime markets. Thus, in countries such as Germany and the UK, higher excise taxes on cigarettes boost the market share of contraband cigarettes as well as corruption risks stemming from criminal networks engaged in the production or smuggling of the latter.
> Economic structures and the relative share of certain business sectors in overall MS economies also condition gray economic activities. Thus, tourism, construction, and transportation are characterised by high levels of grey or illegal economic activity, which naturally attracts criminal entrepreneurs who tend to utilize corrupt practices. In this manner, higher levels of gray economic activity are associated with higher corruption. Specific socio-economic developments may affect the dynamics of certain organised crime markets. For instance, growth in night-time industries may lead to correspondingly higher levels of drug use (e.g. marijuana, cocaine, synthetic drugs, etc) as well as an expansion of markets for sex services.
Social and demographic factors
The social and cultural factors are probably most difficult to capture and study, especially through quantitative methods. Although the case studies make some references to the role of family, ethnic, or social structures and norms, these issues do not lend themselves to the methods and short time-frames of the present study. Yet, these factors should neverbe discounted or overlooked.
> Family-and-friends social networks in South and Eastern Europe may become the basis of criminals’ influence over police, local authorities, magistrates (interviews and CS-BG, CS-EL, CS-IT, PT, RO).
> Worsening demographic situations are another significant socio-economic factor. Migration flows play a crucial role not only in EU-17, which is targeted by inflows immigrants, but also in EU-10E, which is often temporary point for immigrants who wish to relocate to the West.
> In EU-17 MS, immigrant communities have formed a sort of ‘parallel universe’, or a ‘safety zone’ for criminal organisations. In countries like Belgium, France, Greece, Italy, the Netherlands, Spain and the UK, organised crime networks that are mainly ethnic-based have emerged. Some of these are transnational in character and have operations in Africa, Asia, the Balkans, Latin America and the former Soviet Union. They organise their trans- border activities basing their ‘headquarters’ in highly corrupt countries. At the same time, since the cost of bribing public officials in low-corruption countries is high, and the risks involved are prohibitive, only ‘expendable’ lower-level foot-soldiers would operate.
> An interesting development has been observed in certain Northern European countries (FI, SE, DK) that traditionally have been characterized by low levels of organised criminal activity. There, immigrant communities have formed crime markets, while at the same time the social acceptance of corrupt practices in these (largely isolated) communities has lead to increased corruption pressures on public officials in the recipient countries. (FI, BG)
> In various EU countries, local organised crime has started playing the role of intermediary between immigrant criminal groups and public institutions (IT, UK). In countries that have traditions of separatist movements, former terrorist organizations have assumed a similar role (ES, UK).
ORGANISED CRIME, CORRUPTION AND PUBLIC BODIES
Political Corruption & Organized Crime
The scope and the level of complexity of corruption schemes targeting politicians, as well as the damage inflicted on the state or society, are usually far greater than when targeting other public institutions. Political corruption is the most effective and powerful tool that criminals could use, as it also enables them to influence the bureaucracy, law-enforcement, and the judiciary.
Interviewees from all Member States discussed the existence of political corruption in their country. Their views correlated with public perceptions that political and administrative corruption usually is perceived as most common and most problematic Politicians much more rarely associate with low-level criminals involved in activities related to illegal markets, such as drugs or prostitution, than, for example, police or customs officers. The higher the sophistication and complexity of the crimes and their seeming ‘cleanliness’, the higher the likelihood of association between criminals and politicians is. The range of corrupt relations starts from association with businessmen involved in excise tax fraud (smuggling of cigarettes, alcohol and oil), gambling and money laundering, and extends to connections with respected corporations involved in multi-million euro fraud schemes, rigged public procurement contracts, illegal party financing, etc.
The prevalent patterns of political/criminal links is determined both by the nature of organised crime & by the nature of political culture & the political system in a Member State. If & when criminals manage to extend their criminal activities from illegal (eg. drugs) into any legal markets, & acquire a respected public face, their ability to corrupt politicians increases. The “legitimate” face of a criminal provides him/her with the legitimacy to meet openly with public officials, to donate to their political campaigns, or use his/her economic clout to support political parties. Whenever one observes direct links of politicians & criminals involved in illegal markets, the latter also have acquired significant legitimate economic power, which allows them to also use corruption to commit more sophisticated ‘white-collar’ crimes.
In EU-10E, where many criminals started their careers during the chaotic period of privatisation fraud and cross-border smuggling of consumer or excisable goods in the 199 0s, they managed to transform themselves into significant economic actors (locally or nationally) in a position to influence politics directly. In Italy and Southern France, local criminal elites have a long history of collusion with local politics, while being involved in extortion, drugs smuggling, waste management fraud, and bank robberies.
Yet in recent decades their involvement in ‘white-collar’ crimes, such as EU funds fraud, public contract rigging, and real-estate fraud has allowed them to transform their relationship to politicians into a more socially acceptable form. Furthermore, there is a well pronounced tendency in EU-10E for political instability and frequent change of governments. Unlike EU-17, the countries of the former Soviet bloc experienced a series of restructurings of their political parties and the electorates that support them. Due to the lack of a well- functioning system of financing of political parties, both old parties from the beginning of the transition and newly emerged parties have resorted to funds provided by “gray sector” and criminal businesses (CS-BG). Large and legitimate companies have no incentive to offer financial support unless they expect some special privileges in return.
Our interviewees pointed out that much more motivated to make donations to political parties are companies from the gray zone, as they would be able later on to ask for some form of protection or assistance. The consequence is that ‘suspicious contacts’ are periodically elevated to political scandals, leading to a new cycle of disturbances and a new wave of searching for political financing (BG, HU, PL, RO). In countries where the banking systems were under a special regime (or where such a regime existed before but has now been cancelled) like Austria, Cyprus and Luxembourg, the state policy allows entrepreneurs who have been linked to white-collar crime, or even outright criminal businessmen, to use the financial system and invest in these countries. Usually, politicians turn out to be the middlemen assisting foreign gray entrepreneurs (AU, PL, RO, BG).
Modes of association
Most interviewees in EU-17 described cases of political corruption as random and haphazard. In reality, however, while corruption networks could be ‘activated’ whenever they are needed (e.g. there is a public contract tender, or police starts an investigation), bonds of trust are developed over much longer periods of time. For white-collar criminals, this usually involves a long-term investment. They would make donations to support someone’s campaign, or do favours without the expectation for an immediate or short-term return, but for benefits in or over a number of years. This is particularly true for white-collar criminals, whose public image is usually untarnished. They might demonstrate ‘socially responsible’ behaviour and establish a positive image in the local community, and make their relationship with politicians seem perfectly legitimate. The common types of corrupt relations could be discerned from the interviews: sporadic and symbiotic.
When individuals with criminal past or presently involved in criminal activities enter into politics, then one can speak of corruption of the political process. Direct participation of criminals in politics is uncommon, and is rarely their preferred method of exerting influence. On the one hand, direct electoral participation inevitably would put them in the limelight. On the other hand, though, it could provide them with legitimacy, ability to influence the criminal justice process and the redistribution of economic resources.
At the national level, there are three more common examples:
> Members of Parliament: as the case-study of Italy shows (see box), such cases have been observed on a significant scale. In other countries (RO), businessmen under investigation have become members of parliament or have run for to be members of parliament, ensuring at least temporary immunity from investigation (BG).
> Executive branch: as the case-studies show, although this is rare (the case of Silvio Berlusconi is probably the only example at present) a businessman under investigation could manage to seize political power and steer a change in legislation ensuring some level of protection from effective investigation.
> Local level: direct participation in city councils or as town mayors is common. Depending on the set-up, such positions could give access to public tenders, or influence over local police. Such municipalities often could be described as ‘privately’ run, or at least in private interests rather than in the public one. The case studies on France (Corsica), Italy, and Bulgaria list a number of examples of such relations.
Modes of corruption
There are a number of ways to establish the above dependencies:
> Direct – bribes and favours/‘pantouflage’ are probably the most obvious ways. At the highest level, direct bribes were mostly dismissed, especially by EU-17 respondents. Exchanges of favours or trading in influence were deemed as much more common. The practice of ‘pantouflage’ in France is common, whereby after their term expires, officials responsible for public tenders would receive a job at a company for which a contract has been secured. Culturally the exchange of favours could differ: ‘arranging’ jobs/promotions for relatives is probably more common for southern/EU-10E MS.
> Elite networks. They exist throughout the EU. They may be built on different principles: family ties (mostly in southern Europe), classmates, club members, etc. Various forms of mediated corruption take place through these networks. Entrepreneurs can win a public tender, or legislation favouring their business may be passed, just because they belong to the right social network. The ‘favour’ may be returned after a long time. Favours may be balanced: i.e. obvious preferences to a single company, or respectively a single politician, are avoided. The most precious capital in this type of social networks is trust. In smaller countries, networks tend to have a smaller number of members and fewer power centres. Interviews revealed that in the former socialist countries agreements between businessmen and politicians are more direct, and their confidence in each other is significantly lower.
> The political investor: is probably the most common – long term support (financial or other) for political parties, and if needed through illegal political donations are most common (CS-IT, CS-BG).
> The vote provider: in areas where organised crime or white-collar criminals have influence over a significant number of voters, or could influence voters as employers, this type of ‘corrupt exchange’ is use (CS-BG, CS-IT, CS-FR).
> “Insistent lobbyism” (“eindringlicher Lobbyismus”) is another common form it takes. PR companies support the interests of certain politicians. These companies are paid by certain industries (DE).
> Threatening/blackmailing politicians has also been observed, particularly at the local level. (IT) Some cases were reported, where local politicians are offered a prostitute or a large bribe. Following this the criminals collect evidence of the misbehaviour of the politician, and use it for blackmail him/her (IT, DE). A similar tactic is used for other public officials.