Working PaperEuropean No. 53 Research Centre for Anti-Corruption and State-Building Hertie School of Governance Working Paper No. 53 Immunity or Impunity? The effects of immunity provisions on national levels of control of corruption Jon Vrushi ERCAS WORKING PAPERS COLLECTION ERCAS WORKING PAPERS Berlin, December 2018 www.againstcorruption.eu 1 Working Paper No. 53 Working Paper No. 53 Abstract1 Immunities or jurisdictional privileges provide persons or groups of persons some degree of protection against civil or criminal rules that do not apply to all citizens. However, immunities can also be used by public officials as a shield from liability for criminal offences, including corruption. For this reason, interna- tional bodies have been pushing, over the past two decades, for a set of legal standards to ensure that im- munity does not translate into impunity. The international standards and best practice can be summarised in the following four recommendations promoted globally: 1) Reducing the range of officials provided immunity; 2) Reducing the scope of criminal offences for which immunity can be invoked; 3) Introducing clear guidelines and procedures for lifting immunities; 4) The specification of a time limit for the duration of legal protection. This study tests empirically whether these legal standards are associated with better control of corrup- tion in practice. The results show weak to no evidence that the set of international standards recommen- ded to countries around the world are associated with better control of corruption. The only evidence of this association, albeit only significant at the 90% level of confidence, is that immunity provisions for MPs which are aligned with international standards are associated with lower levels of bribery. Furthermore, case studies from Greece and Belgium have shown that impunity can be countered without legal changes and that a practice of impunity can be observed even in countries that have robust legal frameworks. 1 A shorter version of this working paper, mostly contained in the literature review section, was first published by Transparency International’s Anti-Corruption Helpdesk. 2 3 Working Paper No. 53 Working Paper No. 53 Table of Contents Abstract. 2 Introduction . 5 Immunity for public officials . 6 Types of immunity provisions 6 Control of corruption. 7 Corruption risks associated with immunity for public officials 8 International standards and recommendations on immunity provisions . 9 Council of Europe 9 United Nations Convention against Corruption (UNCAC) 10 Combating corruption through legal interventions . 11 Constructing an index to measure the quality of immunity provisions . 11 Index of Immunity Provisions – Descriptive Statistics 12 Immunity Provisions for MPs – descriptive statistics 15 Testing the relationship between the quality of immunity provisions and control of corruption . 16 Quantitative analysis 16 Case Studies: Greece and Belgium 21 Limitations . 23 Conclusion . 24 Bibliography 25 Appendix 1: Immunity Protections for MPs and Ministers 29 Apendix 2: Group of States against Corruption Recommendations on immunity provisions 30 3 Working Paper No. 53 Working Paper No. 53 4 5 Working Paper No. 53 Working Paper No. 53 Introduction In 1982, Pablo Escobar, one of the most murderous criminals and narcoterrorists in recent his- tory was elected to Colombia’s House of Representatives. Election to the highest chamber of his nation represented both a political aspiration for Escobar and an insurance policy to shield him from prosecution or extradition to the United States; a high profile case of parliamentary immu- nity being used to evade criminal liability. However, one need not look back as far as 1982 to find such an example on the international stage. In 2006, an Egyptian MP used his immunity to protect himself from legal sanctions after the customs service found 1700 kilograms of Viagra imported illegally under the name of his company (The Economist, 2016). In Mexico in 2010, a newly elect- ed member of the Chamber of Deputies with an outstanding warrant for his arrest, managed to evade police checkpoints and secretly enter Parliament to take the oath, thus ensuring immunity from prosecution or arrest (CNN, 2010). Such examples are countless, and given the secretive na- ture of crime, most of them are not even known or documented yet. When confronted with instances like those described above one wonders whether immunity as a legal concept makes sense at all, particularly since it has been used to engender impunity for serious crimes and it jeopardises a basic human right such as the right of access to justice for victims. The answer lies in one of the cornerstones of modern democracies – the separation of powers. Politicians require a degree of independence to ensure the unimpeded performance of public functions and to be protected from targeted prosecutions or political persecution. Immu- nity therefore enables a better diversity of opinions and approaches in public policy and at times could be instrumental in matters as important as keeping democracy alive in the face of govern- ments with authoritarian tendencies. By juxtaposing the sins and virtues of immunity provisions, a clear tension emerges: on the one hand politicians need independence to fulfil their public functions and on the other hand they ought to be held accountable for wrongdoing. The incredibly diverse provisions one can find at the national level illustrate the result of this tension perfectly. Some countries provide immunity only for votes and opinions cast in parliament, others for any crimes committed during the term of the official function, others provide no immunity at all and others provide absolute immunity for life for any crimes. Some countries make exceptions to the immunity provisions when the subject is caught in the act of committing the crime, or for serious crimes such as murder, treason or in many cases also corruption. The possibility, authority and procedures to lift a politician’s immunity are also regulated very differently in different contexts. For those interested in the causes of corruption, the natural question that follows is wheth- er this degree of legal protection enjoyed, and at times abused by politicians, is associated with higher levels of corruption due to the culture and practice of impunity that it engenders. This is an important question, because as this study will show, most countries in the world provide some degree of immunity protection for politicians. International and inter-governmental organisations such as the United Nations (UN), the Council of Europe (CoE) and the Organisation for Cooperation and Security in Europe (OSCE) have promoted standards and best practices for immunity provi- sions to ensure those provisions do not create corruption risks through a culture and practice of impunity. Therefore, the question whether immunity provisions are associated with national levels of corruption is also an important question to test empirically, given the time and resources that go into amending immunity legislation for the purposes of controlling corruption. 5 Working Paper No. 53 Working Paper No. 53 Immunity for public officials Immunities or jurisdictional privileges provide persons or groups of persons some degree of protection against civil or criminal rules that do not apply to all citizens (UNODC, 2009; Venice Commission, 2014). In criminal law, immunities are considered exceptions to the compulsoriness of criminal law, whose final effect is to exclude the coercive State power (Iovene, 2017). Immunity provisions help ensure a better separation of judiciary, executive and legislative powers. They are in place to ensure the unimpeded performance of public functions and to avoid targeted judicial proceedings or political persecution. The first registered cases of legal protection for public functions date as far back as theRoman Republic where it was punishable by death to attack citizens participating in tribunes of the peo- ple or to hinder their functions (Venice Commission, 2014). The real codification of immunities for politicians started in the late 17th century, when the Bill of Rights passed by the British House of Commons proclaimed that “the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament” (Joint Com- mittee on Parliamentary Privilege, 2013, p.7). Exactly 100 years later, the duly ratified American constitution extended an exemption from arrest to Senators and Representatives “during their At- tendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place” (Congressional Research Service, 2017, p.138). Two years later, the French Constitution, mandated “The representatives of the nation are inviolable; they cannot be enquired of, accused, or judged, at any time, with respect to what they may have said, written, or performed, in the exercise of their functions of representatives” (National Assembly of France, 1791). Today, most countries around the world provide some degree of legal protection for public officials. The Organisation for Security and Cooperation in Europe (OSCE), in its recent Handbook on Fighting Corruption, lists the following legitimate purposes for immunity provisions (OSCE, 2016, p.194): – to ensure that the elected representatives of the people can speak in the legislature without