Fines for corruption offences should be increased and correlated both with the income and property of the offenders, the value of the undue benefit obtained, as well as the damage caused. At the same time, the guilty of corruption offences should be deprived of the right to hold any public office.
These are the conclusions of the study “Effective sanctions for corruption offences. Specialized anticorruption courts/panels. International experience and proposal for Moldova”, developed with the support of the project “Curbing corruption by building sustainable integrity in the Republic of Moldova” implemented by UNDP Moldova, with the financial support of the Norwegian Ministry of Foreign Affairs. The recommendations of the study are based on the analysis of international standards and national legal framework in the field of fight against corruption. The authors of the study are Tilman Hoppe, international anticorruption expert and Lilian Apostol, national expert.
The authors of the study note that the legislation of most countries in the region provide for severe maximum punishment for serious corruption offences. At the same time, fines are seen to be more efficient than prison sentences. In the Republic of Moldova, according to some studies of the National Anticorruption Centre (NAC), the fines are applied in 71% of cases of corruption and “real” punishment with imprisonment is applied in not more than 16% of all cases.
At the same time, NAC studies found that the sanctions handed down in the past were disproportionate compared to the benefit obtained by the offenders. Hence, on average, it was more convenient to take/give a higher bribe because the offender would risk lower fines, and the higher the bribe the lower the fine.
The authors of the study recommend discontinuing the practice of “cutting in half” the fines, applied for milder or less serious crimes, if paid within 72 hours from the date when the judgment becomes enforceable. According to them, a reduction by 50% is excessive in the context of fight against corruption and it sends the message: “If you have to pay a fine for getting rich on corruption, you get a discount for paying it quickly” (which usually is not a problem for the “corruption business” that is run effectively).
At the same time, the study mentions that the fines may have an important role in preventing and curbing corruption, but any reform in this area, will have an impact only if the investigation, criminal prosecution and trials of corruption offences are fully effective.
Another aspect underlined by the study is disqualification (or loss of the right to hold public office) as complementary form of main punishments for corruption offences. This practice is foreseen both in criminal and contravention legislation. The highest time of prohibition is set to be no more than 15 years for aggravated forms of corruption offences and the lowest is no less than 3 months in administrative misdemeanors. Disqualification refers strictly to the position in which the offender committed the act of corruption. Criminal and contravention legislation prohibit holding a position or exercising an activity of the nature of the one used by the convicted person to commit the crime or misdemeanor. As a result, the disqualified offender may claim his/her right to apply for other, unrelated public positions.
The experts concluded that this practice is not compliant with the international standards. The case-law of the European Court of Human Rights and other international standards perceive disqualification as a prohibition to hold ”any public office or a position in the public sector”. Based on current provisions of the Criminal and Contravention Codes of the Republic of Moldova, the sanction of disqualification should be harmonized with this principle. Moreover, the disqualification should be equally applied to any corruption offence as well as misdemeanors.
The authors of the study refer to the possibility of creating specialized anti-corruption courts that are a relatively new phenomenon; most of such courts being established in the last decade. In many countries, this mechanism allows the selection of most capable judges to examine cases of corruption and/or those who are continuously trained in the area, and to speed-up the processing of corruption cases, many jurisdictions impose deadlines. These institutions permit reasonable distribution of cases per judge, which allows quicker examination of cases.
The study notes that Moldovan general courts are overwhelmed in particular with cases of large-scale corruption: prominent defendants in corruption cases hire on average six different lawyers. They use any possible way of delaying and obstructing a trial. In these circumstances, it is obvious that a general court with an overload of cases and a tight trial schedule is quickly overwhelmed and possibly inclined to give in to at least some of the tactics of the “army” of lawyers of defendants, the authors of the study claim.
On the other hand, the study underlines certain risks related to the creation of anticorruption courts. These include the fact that close relationships between specialized judges and other actors (lawyers, experts) may lead to dependencies, conflicts of interest or even facilitate targeted bribery. At the same time, the excessive pressure on the anticorruption courts could distract the public attention from the need to implement reforms in other institutions, such as police and Prosecutor General's Office and judiciary as a whole.
The project “Curbing corruption by building sustainable integrity in the Republic of Moldova", implemented by UNDP Moldova with the financial support of the Norwegian Ministry of Foreign Affairs has the objective to achieve a sustainable integrity and anti-corruption system in public and private sector entities, as well as in the civil society. The implementation period of the project is 2019-2021.