Twinning Project for the Fight against Corruption.                                 Jorge Espina

                                   AND POSSIBLE SOLUTIONS

                                                                                  Jorge ESPINA.
                                                                               Spanish Prosecutor.
                                        EU Pre-Accession Advisor for the Fight against Corruption.

                                                “We must hate corruption and be honest by nature.”
                                                                           Erasmus of Rotterdam

    1. Introduction

    In the general sense, the mission of the Criminal Law, as the last thing to which we can
resort to regulate coexistence in the society, has a particular importance when we refer to
controlling those conducts that in a direct way attack the bases of that coexistence. We are
referring to those conducts which by their own nature, by their organized character, or by how
they undermine the principles of a welfare state, are the ones that can seriously endanger not
only the normal coexistence but also the proper survival of the rule of law.

        In order to prove the above-mentioned, it is sufficient to read the initial paragraphs of
the Action Plan for the Fight against Organized Crime adopted by the Council of the
European Union on 28 April 1998 where it refers to this phenomenon with the following
eloquent words:
               “The organised crime is developing progressively and becomes a threat
      for the society as it is and as we want it to remain. Such criminal behaviour
      includes not only controlling individual actions but also controlling organizations
      that in general corrupt various structures of the civil society. Criminality is
      organized progressively in a supranational form, taking advantage of the
      freedoms of free circulation of goods, capitals, services and persons. The new

Twinning Project for the Fight against Corruption.                               Jorge Espina

      technologies like Internet and operations through the electronic banking are
      turning into extremely useful instruments for committing crimes, as well as
      achieving transfers of the profits resulting from their apparently legal activities.
      Fraud and corruption are getting massive proportions attacking the citizens, as
      well as institutions themselves.”

      This type of delinquency means and introduces a series of problems that can hardly be
faced by using the instruments developed during the previous periods for facing radically
different situations. The Spanish prosecutor Mr. Fernando Gómez Recio has recently stressed
this topic within the framework of an international seminar on the procedural aspects of the
fight against corruption, organised by the PHARE Twinning Project for the Fight against
Corruption in Slovakia. As he puts it, Fundamental Rights were originally created in order to
protect the citizens from the possible interference of the State, being the State an element that
could interfere in various spheres of the citizens’ lives. However, in present times
      “the real danger regarding security and personal liberty is represented by
      terrorism and organized crime, while now the State seems as the only one capable
      to protect the citizens from this danger. The challenge that is open now for
      countries is to have at their disposal efficient weapons in the fight against
      organized crime, while respecting the essence of the old procedural guarantees, is
      a challenge that is open for the following years.”         (“The Principles of the
      Criminal Process in Jurisprudence of the European Court for Human Rights” on

    Basically, we must recognize that the main problem to be solved is how to perform an
efficient fight against corruption and organized crime without letting the criminals hide
themselves in the environment of freedoms provided by the State to its citizens. But at the
same time, there is also the need for maintaining a scrupulous respect for the essential and
inevitable core of the fundamental human rights. To achieve this, we can propose various
concrete steps, which we will be focusing on later, but before that it would be good to reflect
briefly on the conditions of the battlefield in the sector of fighting corruption and organised
crime. And take notice of our intentional use of the expression “battlefield”, which is
common in the national and international legal instruments. This expression is fully justified
by the fact that the organized crime represents in the area of criminology and criminal policy
new qualitative challenges, that must be answered by new control mechanisms under the rule

Twinning Project for the Fight against Corruption.                               Jorge Espina

of law. This kind of delinquency makes rule of law tensioned to the extreme by putting in
constant danger its political and institutional values.

    2. The peculiar situation in the Slovak Environment.

    The issue of corruption and crime on a large scale, to which we have referred, are
perfectly applicable to any country. However, in case of the countries that belonged to the
Soviet block there is a series of added conditions obstructing even more the already difficult
aim to control corruption and organized crime.

    In these countries, the civil society seems to be particularly badly structured as a
consequence of the years suffered of dictatorship to which we must add the practical absence
of transition periods to the new situation arisen after the collapse of the wall. This unexpected
break of the wall and the following disintegration of the power apparatus maintained by the
Soviet Union that covered these countries, brought many of these nations from one extreme to
another. Thus to the structural problems typical for the socialist countries, there was
accumulated almost immediately another series of problems inherent in the capitalist
countries. These new problems did not substitute, but were added to the already existing ones
forming a kind of stratification of negative influences which affected in an intensified harmful
way the possibilities of development and democratisation of these countries, some of them
recently established, as it was in the case of Slovakia.

    As regards concretely to the case of corruption, we can see a clear example of the above-
mentioned. In the countries that are presently in the process of integration to the EU, we find
space not only for a high level corruption but also we come across another type of corruption
that we could qualify as “minor” which is extended to all levels of the society. This causes
that almost all citizens of these countries have had constant concrete pieces of experience with
unofficial but obligatory payments in various sectors as e.g. the public health system, the
educational system, the judiciary, etc. Thus, indications of the corruption perception are
especially high and, as an additional problem, the fight against it is especially complicated,
since a number of members of the Law Enforcement Agencies that should be in charge of this
fight are precisely the ones who are affected the most by corruption. It is possible, considering

Twinning Project for the Fight against Corruption.                                Jorge Espina

the magnitude of the phenomenon, to talk here about the need of restructuring the State in
order to fight against corruption.

    3. General reforms to be carried out

    It must be pointed out that there are two pillars on which any serious attempt to fight
against the evil of corruption and organized crime must be based: on one hand, the
responsibility of the authorities, and on the other hand, the pressure of the public opinion on
the political leaders, as well as on the delinquents.

    From one point of view, the public powers must establish sufficient preventive
instruments to stop creation of positive environment for corrupt practices. This must
obviously be done through an adequate transparency in the management. The citizens by
themselves or through organizations or institutions (the press, NGOs, associative movements,
lobby groups, etc.), must have adequate access to the contents of the governmental projects
and actions. It is the only effective way to control public activities and avoid hardly justifiable
acts or corrupt practices. The new technologies, and especially the adequate use of the
Internet, offer excellent opportunities for maintaining a due level of communication,
information and transparency for the population in general.

    On the other hand, we cannot forget about the repression authorities. Without prevention
policies, it would be difficult to put an end to corruption, but in the same way it would be
utopia to try its eradication without an appropriate repressive policy. Bringing efficient
instruments for this fight – from the viewpoint of the procedural, as well as material law – and
adequately funding the security forces so that they can execute this fight in a due manner must
be priorities for any government.

    And we can say concretely that there are two types of instruments that are necessary. As
regards to the material equipment, it is normal that criminal organizations dispose of means
and material equipment fully exceeding those that can be put at disposal of the Police Forces
by the States. Thus, the investments in this field are not based only on the modernization
efforts but also on an imperative and urgent need. The means for wiretapping of
communications, phone tapping, etc. are inevitable instruments for those who seriously intend

Twinning Project for the Fight against Corruption.                               Jorge Espina

to face the problems of corruption and organized crime. Without such means not only that the
fight would be executed in worse conditions, simply it could not be executed because it would
be practically inefficient.

    But we must also emphasise the need to provide the Law Enforcement Agencies with an
adequate legal framework which would enable performance of their office with a guarantee
that all the executed work could be later on used in trials in order to achieve the corresponding
condemnatory sentences related to the investigated entities.

    As an example of these technical instruments we can first refer to a whole series of
international treaties designed to combat the supranational crime, within the United Nations,
Council of Europe and European Union frameworks. This is not the right place or moment for
listing the almost uncountable treaties related to the issue, however it is obvious that
corruption and organized crime is a phenomenon of an international nature that cannot be
controlled if the efforts are not made at a global level. Similarly, the national legislation must
introduce all the institutes proposed internationally like the undercover agent or controlled
delivery of drugs so that efficiency is on a maximum level.

    Slovakia has ratified most of these treaties and has introduced amendments to the
legislation in order to admit these new tools. Nevertheless, efficiency against corruption and
organised crime requires more than mere signatures of international treaties. Sometimes we
see reluctance in the executive or in members of the judiciary to admit such institutes. We
must drop the short-sighted or narrow-minded attitudes related to the use of this type of
instruments and institutes and try to admit them with an open and innovative spirit, and of
course always with absolute respect for fundamental human rights. Otherwise, we would be
only playing in favour of the criminals.

    And we are insisting once more: the fact that some of these criminals have an apparently
respectful position in the society does not make them less dangerous or rejectable than the
ones living in the under-world. It is exactly the other way around because these white-collar
criminals are the ones undermining the bases of the proper existence of democracy and the
rule of law.

Twinning Project for the Fight against Corruption.                              Jorge Espina

    Following these principles, and concentrating on the Slovak case, we will quote now some
concrete actions that could be taken in the field of improving the legal framework for the fight
against corruption.

    4. Breaking personal links in the investigation, prosecution and trial of crimes.

    This is one of the most important sectors: breaking personal links in order to achieve
better efficiency in investigation of crimes of corruption and organized crime. Thus, various
initiatives can be considered, as well as creation of the special Police units, special
prosecutor’s offices to repress this type of crimes. It could equally be effective if there were
established courts charged with centralizing the knowledge on this type of cases. Benefits of
such measures are clear and evident, and we will offer a general view of some of them.

    4.1. The Special Anti-corruption Prosecutor Unit
    The mere existence of corruption as such a widespread phenomenon in the Slovak
Republic indicates that exceptional and innovative measures are badly needed. The necessity
of the Special Anticorruption Prosecutor Unit is not derived of the fact that the current
General Prosecutor's Office had been idle in the fight against corruption, but precisely of the
fact that, despite the efforts made by the General Prosecutor's Office and other Law
Enforcement Agencies, it is still insufficient for combating effectively the means, tools and
strength shown by criminal organizations and individuals in this field. It is not a matter of
how many cases of corruption there are per year, but of how complex and difficult these cases
are, of how many more can be disclose every year, and of the need for specialized prosecutors
and experts to solve them.

    The Special Anti-corruption Prosecutor Unit enhances particularly the principles stated in
the Constitution, granting the Special Prosecutor a particular field for developing its task of
protecting the rights and the legally protected interests of natural persons and legal entities
and the state (Article 149 of the Constitution). This institution would not affect at all the
superior role of the General Prosecutor, and would not by any means imply that there are any
changes in the hierarchical pyramid established within the Prosecutor’s body. The General
Prosecutor would still be the superior and would be able to issue as many orders and
instructions as he wants to, in order to organise better the function of the Special prosecutor

Twinning Project for the Fight against Corruption.                              Jorge Espina

and to direct and supervise the work of the Special Prosecutor. It is also important to
emphasize that the unity of the Prosecutor‘s Office is not at stake, because this new Unit
would be fully integrated within the building of the General Prosecutor‘s Office.

    Establishment of this Special Anti-corruption Prosecutor Unit will not mean either that the
correct measures already taken should be forgotten. Since the General Prosecutor’s Office has
already assigned certain regional prosecutors to deal with corruption cases, it would be
advisable to maintain the existence of these regional prosecutors. They would depend on the
Special Prosecutor in this particular field, so that those cases in which personal links are not
so relevant can be dealt with by these prosecutors. This would allow the “central” anti-
corruption prosecutors to focus on the biggest and most complex cases.

    It is of the greatest importance the fact that the Special Prosecutor counts on an effective
team to achieve the degree of specialisation and efficiency that society demands from such
institution. Apart from Police Units, other types of experts such as economic experts, tax
experts, etc., should be attached to the Special Anti-corruption Prosecutor Unit. The
attachment of these experts should be done by placing them directly and physically in the
office of the Special Prosecutor, so that the relationship and the information flow is as smooth
and fast as it can be.

    One of the major consequences of this new prosecution office Act will be establishment of
a legal institution which will remain as it was designed unless some legislative measures are
taken against it. It means that, even if we accept that the current structures organised by the
General Prosecutor (the Organised Crime Department: “Oddelenie boja s organizovaným
zlocinom”) is efficient enough for the fight against corruption, there is still a danger that we
cannot be blind to. And this danger is represented by the fact that, in the end, the whole
structure is depending on a mere act of sheer will of the General Prosecutor. Therefore, it
could be eliminated overnight by another decision of the General Prosecutor, be it now or in a
couple of years, when another General Prosecutor is in the office. Legal certainty and stability
of institutions are always important in the Rule of Law, but beyond that, these features
become a conditio sine qua non in the field of the fight against corruption, for they produce a
double effect: first, deterring the criminals and prevent them from acting, and second, giving
support and relief to ordinary citizens who get to know who to address in case of need.

Twinning Project for the Fight against Corruption.                                 Jorge Espina

       To finish with this issue it is important to remark that certain international regulations
give enormous support to these types of Special Units. Recommendations of the Council of
Europe –R (2000) of 6th October, 2000- are particularly relevant, and specifically
Recommendation Nº 8, which makes clear that all members of Prosecution bodies must have
solid knowledge in most legal fields. In this sense, they must be generalists more than specialists.
However, for efficiency reasons, specialisation is inevitable in highly specialised sectors (e.g.
economic and finance delinquency) as well as in the field of organised crime. This is why the
Council of Europe promotes two types of specialisation:

        -    One, the classical type, which consists in creating a series of specialised teams
             inside the existing structures of prosecution bodies.

        -    However, the Council of Europe promotes another one, to be particularly
             enhanced by the States, consisting in creation of Special Multidisciplinary
             Teams, composed by experts of different origins, under control of specialised
             prosecutors. The union of these different competencies under the same control
             and direction is considered to be one of the main conditions for efficiency of the
             system. This is the model which was followed in countries like Italy and Spain.

     It is eminently clear that only the existence and development of a Special Anti-corruption
Prosecutor Unit can fulfil the expectations of Recommendations of the Council of Europe. In
addition to that, we have to point out that, from the point of view of the public opinion, both
national and international, it could be hardly understood that a consistent fight against
corruption can be properly carried out without such technical tools as the Special
Anticorruption Prosecutor Unit.

    Luckily, the responsiveness of the Government and of the General Prosecutor‘s Office are
properly tuned to this needs. Le us hope that the newly elected Parliament will share their
concern on the topic so that Slovakia will be able to count on this important institution in the
near future.

    4.2. The Specialised Centralised Court
    But a proper general regulation of the institutions designed to fight against corruption
should include the existence of highly specialised institutions, not only in the prosecution, but
also in the judicial field. This goal could be achieved by changing slightly the current system
established by the Criminal Procedure Code, and by creating a new judicial office for dealing

Twinning Project for the Fight against Corruption.                                 Jorge Espina

with cases of a higher relevance or complexity. That means that for certain cases of serious
crimes related to corruption, organised crime and terrorism the competence should belong to a
central judicial body in Bratislava or any other major city, extending its competence all over
the country.

    Two different consequences would derive from this. First, personal links would be more
effectively disrupted (particularly if we consider the institutional framework including the
existence of a Special Anti-Corruption Prosecutor's Unit); and second, a higher degree of
specialisation could be achieved, in order to be able to cope with those complex and
overwhelming cases of major corruption and organised crime.

    In addition to this, and this argument is equally valid for the Special Anti-corruption
Prosecutor Unit, the existence of this central judicial unit would make it easier for the
Government to grant the means for an effective protection of judges and other officials. It is
an obvious fact that creation of the judicial unit would inevitably increase the pressure on
their components. But if the Government is aware of this and reacts properly, granting an
adequate protection to members of these central institutions, the confluence of competence
will make it harder –if not impossible- for criminals to try to influence their decisions.

    It is also important to emphasise that this proposal is just about changing the competence
of the already existing bodies within the judiciary. In fact it would not be necessary to create a
new unit or body, as long as this confluence of competencies is attributed to a certain unit or
body already functioning. In the Spanish model, we have the so called “Audiencia Nacional”
(National Court, in opposition to Regional or District Courts) which is competent for all major
crimes whose range affect several districts or regions, as well as for those whose seriousness
makes it advisable to concentrate in such a specialised body (e.g. terrorism cases). Following
this line, it is clear that most of the major corruption cases should be dealt with by this judicial
unit, for usually they go beyond the local level, and in addition to that, certain specific
circumstances concur in corruption issues that make them particularly suitable for this type of
special judicial units.

    It is also important to point out that creation of this unit or the attribution of this
competence to an existing unit would not affect any of the principles stated in the
International Treaties signed by Slovakia, in the Constitution or in the Criminal Procedure

Twinning Project for the Fight against Corruption.                                Jorge Espina

Code, due to the fact that the usual criterion of “forum delicti commissi” (as followed by
Sections 16 to 18 of the Slovak Criminal Procedure Code by stating as a general rule that “the
proceedings shall be held by the court in whose district the crime was committed”) is nothing
but one choice among the many other possible legal criteria to take into account in order to
decide about the judicial competence. Therefore, this measure will not affect either the
contents of Article 6(1) of the European Covenant for Protection of Human Rights and
Fundamental Freedoms or of Article 48 of the Slovak Constitution, for in both cases they
refer to the right to be judged by a law-assigned judge, without any further reference to the
criteria to be followed in determination of such competent judge.

    One more thing is to be said to define the real need of such legislative measure. The
Spanish “Audiencia Nacional” had an opportunity to express its opinion on the subject in its
Writ (Judicial Resolution) of 10th of January 2000, by saying:

          “The need for a judicial body different from the Supreme Court whose
      jurisdiction would be over the whole country for criminal cases is sufficiently
      justified and it is because the omnipresence of criminal activities or results,
      especially those concerning criminal organisations, exceeds the provincial
      territorial district or because it would be difficult to find a body that would be
      “naturally” more adequate. As the European Commission for Human Rights has
      admitted in its report of 16 October 1986 (199/87 of December 16), there exists
      an opinion, in relation to the character of these cases, to the related issues, to the
      extent of the territory where they are produced and to their importance for the
      whole society, that could reasonably lead the legislator to a conclusion that the
      preliminary investigation and proceeding of these cases could be executed
      through a centralised judicial body such as the Central Court for Preliminary
      Investigation or the National High Court.”

    In short, the creation of this new sphere of competence attributed to a specific central
judicial body would help to concentrate efforts in the fight against corruption, allowing a
better specialisation of judges and officials, enhancing the efficiency of the courts, breaking
any personal links that might disturb the normal and fair course of Justice, and permitting a
better protection of those in charge of the fight against corruption in the Slovak Republic.
Since this goal could be achieved by simply changing the ordinary laws, such as the Criminal

Twinning Project for the Fight against Corruption.                                  Jorge Espina

Procedural Code being currently under revision, it is a legislative measure that could be taken
without excessive problems and that would bring immediate relief and help to the Slovak
judiciary in the fight against corruption and organised crime.

    4.3. Regulation on amnesty and pardon.
    The Article 102 Letter j) of the Constitution of the Slovak Republic contains the power of
the President of the Slovak Republic to grant amnesty or pardon, as well as to reduce
punishments inflicted by the court. The legal development of these provisions takes place in
Article 366 and the following of the Code of Criminal Procedure, in which few controls or
restrictions are stipulated for the exceptional power granted by the Constitution to the
President of the Republic. Thus, it only seems that Section 368 contains a limitation of the
President’s power by requiring, for granting an amnesty, a report in its favour issued by the
sentencing court (this Article stipulates that the mentioned court shall decide on the eligibility
of the person for an amnesty, and in what amount and extent). Nevertheless, it seems that this
article would only affect the possibility of the court to propose the measure for remitting but it
could not impede the President to grant an amnesty.

    If in certain historic moments these types of amnesty and pardon were in some cases
considered as a manner of softening and humanising the strictness of the criminal law, as it
results from its application by the courts, it is obvious that the actual characteristics of the rule
of law with a true separation of powers, (which is the case of the Slovak Republic, especially
after the last constitutional reforms) suggest the need of a series of legislative changes in this
field, especially in connection with criminal cases related to corruption. The recent history of
Slovakia, with decisions related to amnesties that were not much connected with arguments of
the material justice, justifies the necessity to introduce legal limitations of this power in order
to prevent unjust decisions that would not be easily justifiable before the national and
international public opinion.

    Indeed, the principle of division of powers that is essential to the rule of law has an
important exception in the existence of amnesty and pardon itself, provided that in the end
there exists an interference of the Executive Power in the sovereign sphere of the Judicial
Power. This exceptional possibility therefore should be subject to a series of conditions that
would prevent its incorrect use in such way that would prohibit favouring the persons that are
inclined to, or favourable to any actual Executive. This danger is particularly obvious in

Twinning Project for the Fight against Corruption.                               Jorge Espina

matters related to crimes of corruption, especially when corruption scandals involve persons
in high political positions.

    These are not measures that could be considered unconstitutional by being in opposition to
the wording of Article 102 of the Constitution relating to the powers of the President. On the
contrary, they would establish a precise legal development of these powers considered by the
Constitution. As it is not considered unconstitutional the existence of a legal regulation on
amnesty and pardon stipulated in Article 366 and the following of the Code of Criminal
Procedure, equally it should not be understood that the measures suggested here limit the
competencies of the President at all. They are only guiding and specifying these competencies
by establishing a regulation that is in a better compliance with the social sensibility and the
aims pursued in the fight against corruption.

    Therefore, and based on the concrete measures that we propose, we believe that an
adequate regulation of amnesty and pardon should subject to a series of minimum
requirements among which we could point out the following:

    A) The need to pay attention to the social susceptibility.
    In a democratic country open to society, it is necessary to be especially careful in order to
prevent creating an impression that the political power amends on the basis of political criteria
the resolutions that are legitimately declared by judges. This is the reason why legal
prohibition of the possibility to apply amnesty or pardon in determined crimes, especially the
ones related to the most serious forms of corruption, would be a highly recommendable
measure for obtaining a better credibility in the general fight against corruption

    This could be achieved by establishing a list of crimes, including the most serious cases of
corruption as well as any other serious crimes that could be committed by determined persons
with high political responsibilities, so that the execution of convictions could not be prevented
by any decision of the Executive through granting a pardon or amnesty. This offers a
guarantee a priori for citizens that there will be no extra-judicial settlements, nor personal
pardons that would be hardly understood by a society to which we are trying to explain the
importance of supporting the fight against corruption in all its forms.

Twinning Project for the Fight against Corruption.                              Jorge Espina

    B) The need to follow the opinion issued by the sentencing court on the applicability of
amnesty or pardon.
    As regards to this issue, the role conferred on the sentencing court should be increased, by
giving to its opinion a binding value in relation to the regulation stipulated in Article 366 of
the Code of Criminal Procedure. As regards to the Spanish legislation, only in cases of full
pardons or pardons for recidivists it is required that, in the opinion of the sentencing court,
there are arguments of justice, equity or public profit or convenience which justifies the
amnesty or pardon. This rule should be extended to all cases, because in a model of full
respect for the rule of law and separation of powers, the amnesty or pardon would only be
justified in those exceptional cases in which the courts, due to the strictness of the law and
unavoidable obligation to apply it, admit that there occurred an unjust situation that must be
remedied by using this exceptional measure.

    But, a sensu contrario, it has no justification that the Executive Power can change a
sentence in cases when the sentencing court expressly declares its opposition to the pardon,
and therefore ratifies the correction of the sentence and its compliance with the law; provided
that any arguments that could be alleged under the point of view of equity and justice will
have already been considered by the court, and there is no reason for favouring the evaluation
made by the Executive over the one made by the authorities in charge of considering,
pursuant to the law, the correction of the imposed punishments.

    Therefore, as a complementary measure of the one proposed in the previous item, it must
be established for all the cases in which pardon is allowed, they will not be granted unless the
report issued by the sentencing court agrees with granting of such pardons.

    C) The need of an adequate argumentation for decisions of the Executive.
    Finally, and as a manifestation of the respect for the public opinion and within fulfilment
of general duties of the administration, it would be interesting to introduce an obligation that
the Executive must adequately justify any granting of amnesty or pardon. Let us mention the
example of the present Spanish legislation in which the Royal Decrees granting pardons
issued by the Government are unfortunately not subject to any motivation and therefore they
constitute a true example not of discretion but of sheer arbitrariness of the Government,
especially if we consider the loose arguments that the very old but still valid Spanish Act on
Pardon of 1870 (slightly amended in 1983, 1988 and 1993) foresees for granting of pardons

Twinning Project for the Fight against Corruption.                              Jorge Espina

(that affect a person condemned by a final sentence who is at disposal of the court, as well as
that granting of pardon does not harm third parties).

    In the case of Slovakia and with regard to the references we used for elaborating this
report, the Resolutions of the Presidency of the Republic do not mention concrete
circumstances in the application of amnesty or pardon. And when some reasons are given,
they are as general like “at the event of the end of the jubilee year 2000” (Resolution of the
President of December 14, 2000) or “at the event of my election for President” (Resolution of
the President of July 14, 1999). As we can see, there is no reference to concrete circumstances
of beneficiaries of the amnesty measures that could justify such exceptional measure. This
fact increases the lack of respect for lawfully issued judicial decisions, especially when we
consider that these decisions are not limited to condoning minor offences but they are
extended to the negligent and intentional crimes.

    Within this practice one of the arguments that is usually used for justifying the existence
of the right to amnesty, i.e. the possible correction of material injustice resulting from the
blind application of the law by judges, becomes absolutely meaningless: we cannot admit that
we are correcting injustice when we remit punishments and crimes of general nature without
paying attention to the concrete circumstances of those who committed them.

    5. The role of citizens.

    Common citizens have an important role in the fight against corruption. And only when
the general opinion definitely stops considering certain unofficial but compulsory payments as
something normal, then we will be able to find an environment to make proliferation of such
practices more difficult. Anyway, we must admit that the public authorities cannot expect the
citizens to play the main role in the fight against corruption if they first do not provide them
with an adequate legal framework and a due protection. For example, a citizen who decides to
denounce a case or come as a witness for the accusation should have means enabling that his
intervention does not turn into an absurd going back and forth to the Police, investigator,
Prosecutor’s Office and court in order to repeat the same words several times. In the same
way, the public authorities must guarantee him a status of protection when needed. That
would enable him to testify and have at least minimum guarantees. Otherwise we would ask

Twinning Project for the Fight against Corruption.                             Jorge Espina

the citizen to behave rather as a hero than a normal person, which is contrary to the terms of
logic. This again justifies taking strict measures of protection capable to face adequately the
phenomenon of the organized crime and corruption which counts on very strong mechanisms
of coercion, as it was intended in the environment of the European Union by many tools (see, /Justice and Home Affairs/Technical Data) and in the United States
through the program called Witness Security Program of the RICO Statute in the Act on
Organized Crime.

        Some of the recent amendments to the Criminal Procedural Code have been properly
targeting these types of problems.

    6. Conclusion

    As can be imagined, in the previous pages we could not present nothing more than a
general opinion on the problem. In order to be able to adjust maximally the measures to be
taken, concrete characteristics and problems of each of the countries must be focused on. In
no case we are talking about magic measures that would solve the problem overnight, or
about intending to export merely the legislative measures we could achieve in the EU member
countries because we insist that the most important thing is to satisfy concrete needs of each
place. The fact that in the EU there are specialists for the fight against corruption does not
indicate that we have an easily feasible solution. On the contrary, it indicates that it is a
problem that we share with the candidate countries and that is precisely why we can bring our
experience hoping that all together we will improve the present situation.

    Finally, there are no doubts that the stimulus of accession to the EU is one of the most
important for individual governments in this period of developing the corresponding
legislative measures designed to strengthen capacity of the institutions dedicated to the fight
against corruption. It would be good to make most of this extraordinary possibility and of the
evidently big inclination of majority of the involved governments and improve the structures
of these countries and make them be welcomed in the Union as soon as possible and in better
conditions for everybody.

Twinning Project for the Fight against Corruption.                               Jorge Espina

    To make a conclusion, we will come back to the reflections we made at the beginning of
this report to underline once more the evident danger that exists if measures are not taken
immediately. As has recently been emphasized by a member of the Spanish General Council
of the Judiciary, José Antonio Alonso (Daily El País of 15 April 2002):
      “attacking the legitimate institutions is the first task of the organized crime which
      dedicates one of its fundamental budgetary chapters to the political corruption
      due to a simple question of survival. This is very worrying in the countries with
      social and institutional systems that are developed and stable but decisive for the
      second or third world where it puts an end to the arising democratic institutions
      that are still weak.”

    Let us hope that our common effort will allow us to do what is needed in order to avoid
such dramatic consequences.


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