Corruption expertise – stage 3

19 April 2008

General

“Corruption Proofing” Project is implemented by the Centre for the Analysis and Prevention of Corruption (CAPC) within the framework of the Joint Project of the European Commission and the Council of Europe against corruption, money laundering and terrorist financing in the Republic of Moldova (MOLICO), co-financed by the European Commission, the Swedish International Development Cooperation Agency (SIDA) and the Council of Europe.
The contents of this publication are the sole responsibility of the CAPC experts and can in no way be taken to reflect the official opinion of the European Union, SIDA and the Council of Europe.

The Project „Corruption Proofing of the Draft Legislative Acts and Dissemination of Best Practices”, is envisaged to last throughout the period of April 2008 – January 2009 (hereinafter referred to as „Corruption Proofing – stage 3”) is a follow-up to the Project „Corruption Proofing – stage 2”, implemented in the period October 1, 2006 – October 1, 2007.

Project Mission: Promotion of the Corruption Proofing Methodology and advancing the CAPC and CCECC corruption proofing best practices.

The Project was carried out in the framework of the Joint Project of Council of Europe and European Commission against Corruption, Money Laundering and Terrorist Financing in the Republic of Moldova (MOLICO), co-financed by European Commission, Swedish International Development Cooperation Agency and Council of Europe, supporting a series of activities divided in 4 Modules:

Module I. Joint CAPC and CCECC training of the central and local public authorities on corruption proofing of draft legislation and draft regulatory acts of the Government

Module II. Promotion of the corruption proofing methodology as best practice in preventing corruption

Module III. Supporting the legislative process by submission of corruption proofing expert reports on draft laws of the Parliament

Module IV. Developing an electronic template to facilitate the writing of the corruption proofing expert reports and subsequently transferring it to the CCECC

Training of local authorities

The training sessions “Corruption proofing of the draft regulatory acts” in the districts of were envisaged to be carried out in 8 Southern regions of the Republic of Moldova.

Training Objectives
The overall objective of the training is to provide support to the local government for the improvement of the local regulatory activity. The trainings will aim to:

promote the corruption proofing methodology at the local level
training up to 160 persons involved in developing, advising and approval of draft regulatory acts at the local level
developing skills of identifying and avoiding corruption risks’ elements in the regulatory acts at the local level

Target audience
Representatives of the local government (mayors of villages, district counsellors, secretaries of district councils and village administrations’ secretaries, as well as other persons involved into the process for elaboration of draft decisions on the local level)

Expected Outputs:

local public authorities familiarized with the corruption proofing methodology;
better awareness of the corruption phenomenon and consequences;
improved quality of the regulatory acts passed at the local level.

Training Contents:

Development and justification of the draft local regulatory acts
Addressing this subject in local trainings is of particular interest to representatives of local authorities (based on the CAPC experience), because in this training the local authorities were trained how to prepare a draft regulation: the general law-making requirements, regulations governing this process, the necessary preparatory procedures; the need to substantiate regulations; the consequences of non-observance of rules for the drafting and approval of the draft regulations. Teaching this issues was accompanied by review of some case studies distributed to participants.
Corruption and other risks to be avoided in the drafting of the local regulatory acts
Corruptibility elements are examined in parallel with other errors made in the development and promotion of draft laws. Consideration of this subject is aimed at informing participants about the concept and categories of corruptibility elements, the negative impact of these elements. The training participants reviewed also some case studies and were requested to identify and qualify certain elements of corruptibility in cases distributed by the trainer.
Concept and regulation of the corruption proofing of regulatory acts
While reviewing this topic, participants are informed about the mechanism of corruption proofing of draft laws: the causes that led to the promotion of this mechanism, the institutions involved in this process. Participants are explained about the purpose of the Methodology of corruption proofing, the practical application of this Methodology, they are shown the results of implementation by CAPC of corruption proofing etc.
National anticorruption mechanisms
This theme covers topics on legislative and regulatory acts in the field of preventing and combating corruption, more attention being given to new regulations (Law on Preventing and Combating Corruption (new version), Law on the conflict of interest, Code of conduct for public officials, Law on public service and the status of public servant, etc.). Also, participants are familiarized with new initiatives in preventing and combating corruption and anti-corruption projects carried out in Moldova, both by national, as well as by regional and international agencies. Another subject of this theme relates to agencies involved in preventing and combating corruption, the competencies of each authority. While teaching this theme, trainers use the results of surveys assessing the perception of corruption by the population, statistics on the number of corruption offences, elaborating on hypothetical situations or real cases (by observing confidentiality of identity), etc.

Expertise report (archive)

Methodology

The methodology for corruption proofing of draft laws (hereinafter referred to as Methodology) was developed to establish procedures and mechanisms for expert review of corruptibility of the draft legislation.

The expert review of corruptibility of draft legal acts carried out by independent experts, serves as a contribution of the civil society to the establishment of a modern legal framework compliant with the European legal framework. The Contribution of the Centre for Analysis and Prevention of Corruption (CAPC) is put into value in accordance with the Concept Paper for Cooperation between the Parliament and the civil society, approved by the Parliament Decision No. 373-XVI of 29 December 2005.

See the text of the Methodology.

Instruction

Guide

“Guide on corruptibility expert review of draft legislative and other regulatory acts” (hereinafter referred as “the Guide”) was developed by the CAPC in December 2006 and was assessed by the Council of Europe experts.

The Guide aims to contribute to the activity of preparing the expert review reports to identify the legal norms with risks of favouring corruption, being a legal-theoretical basis for the activity of corruption proofing of draft legislative acts. This document is useful also for the process of legal and regulatory acts’ drafting, as it provides information about the normative constructions and omissions generating negative effects. This Guide was drafted in accordance with the provisions of the Law No.780-XV of 27.12.2001 on legislative acts and the Law No.317-XV of 18.07.2003 on the regulatory acts of the Government and of other authorities of public and local administration, being also the first ample methodology for corruption proofing of the draft legislative and regulatory acts.

Publication available in Romanian (revised and updated version), Russian and English (initial versions) languages

Experts

Nagacevschi Vitalie
Expert in Constitutional and administrative law, justice and home affairs, human rights and freedoms

Lawyer, attorney, President of the NGO “Lawyers for Human Rights”, member of the Board of the Lawyers’ Union of Moldova. Professional experience in prosecution, Ministry of Justice. Co-author of the report on compatibility of Moldovan legislation with the requirements of the European Convention on Human Rights, the draft law on refugees, the draft law on prosecution.

Gurin Corneliu
Expert in Constitutional and administrative law, justice and home affairs, human rights and freedoms

Lawyer. Professional experience within the Parliament Office, holder of the highest degree of qualification in public service. Co-author of the Law on legislative acts, the Electoral Code, the General classifier of legislation of the Republic of Moldova, the Law on procedure of repairing the damage caused by unlawful actions of the criminal investigation and preliminary investigation authorities, the prosecution authorities and the courts; Law on the status of refugees, the Consumer Co-operative Law, Law on the manufacture and circulation of ethyl alcohol and alcoholic products, numerous draft legal acts and legal expertise. Co-author of some publications in the field of constitutional law, fundamental rights and freedoms.

Rusu Eugen
Expert in Constitutional and administrative law, justice and home affairs, human rights and freedoms

Lawyer. Professional experience in prosecution. Former Member of Parliament (legislatures XIII and XIV), chair of the Legal committee for appointments and immunities of the Parliament of Moldova. Member of the Committee for Combating Trafficking in Human Beings. Member of the Working Group for promotion of reforms of the juvenile justice system.

Mirza Veaceslav
Expert in Constitutional and administrative law, justice and home affairs, human rights and freedoms

Master of Law, national expert of the Institute for Penal Reform, the EU-UNDP BUMAD programme . Professional experience in public sector (The Office of the President of the Republic of Moldova) and private sector. Author and co-author of many draft laws and by-laws (draft Enforcement Code (Book II), draft Administrative Offence Code, member of working groups for finalization of the Code of Criminal Procedure, the Criminal Code, improvement of justice efficiency, etc.). Experience in the expertise of legal acts in terms of constitutionality, compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Community legislation.

Rosca Nicolae
Expert in Economy and Trade.

Doctor of Law, Associate Professor, attorney. Member of the Commission for licensing notary activities and the and Commission for licensing of attorneys. Co-author of the draft law on real estate cadastre; draft Law on licensing; draft Law on Condominium, the draft law on the protection of small entrepreneurs, the draft law on limited liability company, the draft law on non-profit organizations; the draft Civil Code. Author of numerous publications on business law and civil law.

Baes Sergiu
Expert in Economy and Trade.

Doctor of Law, Associate Professor, attorney. Chair of the Commission for licensing of attorneys. Arbitrator in the Court of Arbitration at the Chamber of Commerce and Industry of the Republic of Moldova and the Romanian Association of Commercial Arbitration. Co-author of the draft law on real estate cadastre, the draft law on limited liability company, the draft Civil Code, the draft law on non-profit organizations. Author of numerous publications in the field of civil law and business law.

Pagoni Domnita
Expert in Economy and Trade.

Lawyer, doctoral student, senior university lecturer. Professional experience in private sector. Co-author of the draft Civil Code. Author of a large number of publications in the field of civil law.

Jigau Radu
Expert in Economy and Trade.

Lawyer, university lecturer, industrial property adviser. Professional experience in private sector.

Armeanic Alexandru
Expert in Budget and Finance.

Doctor of Law, Associate Professor, Head of Department at AESM. Professional experience in the Ministry of Justice and the Office of the President of the Republic of Moldova. Author of an impressive number of publications in the field of taxation and finance.

Ermurachi Victor
Expert in Budget and Finance.

Master of Law, university lecturer, attorney. Member of Board of the Fund for guaranteeing deposits in the banking system. Professional experience in private sector.

Cojocaru Cristina
Expert in Education and training, culture, cults and media

Lawyer. Master of private law. Teaching experience as a lecturer at the English-speaking division of the Law Department of MSU. Professional experience in the EU-supported Project “Civil and Commercial Judiciary” in Moldova, the U.S. Embassy in Moldova and the Centre for Analysis and Prevention of Corruption. Co-author of publications in preventing and combating trafficking in human beings and justice.

Meresevschi Vladislav
Expert in Education and training, culture, cults and media

Licentiate of history and law. Professional experience in pre-university education and local public administration.

Marian Silvia
Expert in labour law, social insurance, health and family

Doctor of Law, Licentiate of economics, Associate Professor. Professional experience in Administration of AESM, higher education and private sector. Represented AESM in civil and criminal cases in the courts; Territorial Cadastral Office, Ministry of Justice, State Registration Chamber of the Department of Information Technology, Ministry of Education, Youth and Sports, etc. Author of publications in the field of civil law, land law, business law, labour law, tax law.

Apostol Lilian
Expert in labour law, social insurance, health and family

Lawyer. Lecturer at the Centre for retraining of the prosecution staff. Professional experience in prosecution.

Effectivness

In October 2007, CAPC released the “Effectiveness of the Corruption Proofing Mechanism Study” (hereinafter referred to as” Study “).

The Goal of the Study is to identify the effectiveness of the mechanism for corruption proofing of the draft legislation. A summary of the main findings of the study is presented below.

In the period of October 2006 – October 2007 CAPC put under corruption proofing expertise a total of 202 draft legislative acts placed on the website of the Parliament. In their reports, the CAPC experts formulated objections about 2256 elements found in the drafts subjected to expertise. Upon writing of this study 117 of 202 draft laws put under expertise were passed by the Parliament and published in the Official Gazette.

Categories of corruptibility elements most frequently identified in draft laws are: faulty reference and allocation-of-regulatory-authority norms, conflict of laws and lacunas (35,6%), excessive or ambiguous discretionary powers of the public authorities (28,6%) and defective linguistic formulations (21,9%).
Effectiveness of the corruption proofing reports drawn up by the CAPC experts was measured by verifying the acceptance of 1064 objections about concrete corruptibility elements found in 117 draft laws put under expertise, which have been passed by the Parliament. Of 1064 objections 562 were accepted, representing an output of 52,8% of the corruption proofing reports presented by the CAPC experts.
Transparency of the legislative process. The failure to publish the informative notes on the website of the Parliament together with the text of the draft legislative acts was constantly criticised in the expert reports of the CAPC. Following these critics the practice of placing the informative notes on the Parliament’s website was influenced considerably. The effectiveness of these critics became visible after the first 6 months. Since May 2007 the frequency of making the informative notes public started to increase and as of July 2007 there were no more cases in which the informative notes were not made public along with the text of the drafts.
Justification of the drafts. Most of the informative notes to the draft laws put under expertise were general and formal, without going into the details of the need of promoting the new draft laws. Contrary to the requirements of the Law 780/2001, the draft laws were promoted absent an outline in the informative note of the “new elements, social, economic and other effects of their implementation”.Implementation of 75,7% of all the draft laws considered by the CAPC experts implied financial and other types of costs, meaning that according to the Law 780/2001 the economic-financial justification was mandatory. Only 3,9% of these drafts were accompanied by such a justification.References to the compatibility of the draft laws with the acquis communautaire and international standards were made in the text of the informative notes and of the drafts themselves in only 17,3% of the cases, leaving 83,7% of the draft laws developed contrary to the requirement of the Law 780/2001 about including in the informative notes “references to corresponding regulations of the European Community legislation and level of compatibility of the draft legislative act with these regulations”. The presence of direct references to the acquis communautaire and other international standards in the text of the draft laws did not involve on every occasion a genuine alignment of the national legislation to the EU and/or other standards.
Promoting and damaging of some interests contrary to the public interest through draft laws submitted to the Parliament. The promotion of interests/benefits through draft legislative acts was found in 43,1% of the cases. 70,1% of the drafts promoting some interests/benefits were qualified by the experts as contrary to the public interest. 20,8% of all the drafts put under expertise were assessed as generating damages, contrary to the public interest. A clear tendency was remarked in initiating draft laws promoting/damaging interests/benefits by parliamentary deputies (65%), tendency which is almost double in manifestation if compared to the draft laws initiated by the Government (35%).
Broadening of discretionary powers of the public authorities through draft laws submitted to the Parliament. Including in the draft laws provisions about the activity of the public authorities by which their discretionary powers are broadened is a typical trend of the drafts initiated by the Government, noted in 43% of the cases, while the initiatives of the deputies refer to this aspect thrice less, only in 17% of the cases. Bringing of legislative initiatives by the Government aiming at extension of their powers can also be qualified as a variety of promotion of interests, but this time it is a promotion of the departmental interests of the central public authorities, which are also the authors of the drafts promoted by the Government.

Publication available in Romanian and English languages

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