Friday, 13 October 2017

Good legal article on asset declaration by politician and government servant

A great number of countries around the world have introduced systems of asset
declaration for public officials in order to prevent or combat corruption. Many believe that
asset declarations can be a powerful tool in this regard; however, the impact of such
systems on actual levels of corruption is not well known.
 The main aims of asset declarations may including
the following:
● to increase transparency and the trust of citizens in public administration, by disclosing information
about assets of politicians and civil servants that shows they have nothing to hide;
● to help heads of public institutions prevent conflicts of interest among their employees and to resolve
such situations when they arise, in order to promote integrity within their institutions;
● to monitor wealth variations of individual politicians and civil servants, in order to dissuade
them from misconduct and protect them from false accusations, and to help clarify the
full scope of illicit enrichment or other illegal activity by providing additional evidence.
 Asset declarations are one among
many tools that can help prevent corruption, but they cannot deliver alone, especially in
countries where democracies are not yet mature, corruption is widespread, tax systems are
dysfunctional and law enforcement is weak. However, a well-designed and operational
system of asset declarations can be an important element in the overall anti-corruption
and integrity system of a country.
Who should be obliged to declare assets?
There is no uniform standard regarding what circle of public officials should be
obligated to submit declarations. Countries should carefully debate and weigh the costs and
benefits related to broader (and more burdensome and costly) or narrower coverage. There
is no convincing evidence that covering the broadest possible circle necessarily leads to
more effective prevention of corruption.
● As said above, due attention should be paid in setting obligations separately in
accordance with the level and responsibilities of officials. While the obligations of MPs and
senior officials should be relatively heavy, those of ordinary, and especially middle- and
low-level officials, can be light.
● Obligation to disclose assets does not have to be linked formally to the rank of an official, but
rather to the extent of decision-making authority and managerial powers of officials, and the related
risks of conflict of interest and abuses of office. This obligation should also cover private
entities and individuals empowered to provide public services through outsourcing.
● It should be recognised that corrupt officials often hide their assets under the names of
their relatives, their spouses and other individuals. Therefore, it should be possible to
monitor the wealth not only of a public official, but that of close relatives and household
members. This can be achieved through the public officials’ declarations system or
through the tax system, or by law enforcement authorities. However, vis-à-vis relatives
and household members, a respect for the privacy of individuals is required.
The coverage of declarations systems should not result in a heavy burden on a vast number of
persons who are not public officials, especially if the declared information is subject to public
disclosure in light of the growing concerns related to privacy protection.
What information should be declared?
The scope of information to be declared depends on the purpose of declarations. Conflict of
interest control requires information about interests that have the potential to influence
the discharge of official duties, rather than a necessarily all-encompassing picture of all
income, assets, outside business and other activities. On the other hand, proper wealth
monitoring is possible only when the declared information truthfully reflects all of the
substantial income and assets, and fluctuations thereof.
Which information should be open to the general public
and other public institutions?
While there is a global trend towards greater disclosure, striking the right balance
between public disclosure and protection of privacy remains a subject of debate.
Article 7 (Paragraph 4) of the United Nations Convention against Corruption requires
states, in accordance with the fundamental principles of their domestic law, to endeavor
to adopt, maintain and strengthen systems that promote transparency and prevent
conflicts of interest. However, the concrete design of policies to control conflicts of interest
falls within their national competence.
Transparency and public accountability – Along with the prevention of conflicts of
interest, more general concerns for transparency, public accountability, trust and integrity
constitute the most commonly stated purposes of the declaration systems.
In Wypych v. Poland (October 25, 2005, application no. 2428/05), the European Court of Human Rights rejected the complaint of a local council member in Poland who refused to submit his asset declaration claiming that the obligation to disclose details concerning his financial situation and property portfolio imposed by legislation was in breach of Article 8 of the European Convention of Human Rights.
The Court found that the requirement to submit the declaration and its online publication were indeed an interference with the right to privacy, but that it was justified and the comprehensive scope of the information to be submitted was not found to be excessively burdensome:
The Court “considers that it is precisely this comprehensive character which makes it realistic to assume that the impugned provisions will meet their objective of giving the public a reasonably exhaustive picture of councilors’ financial positions ... that the additional obligation to submit information on property, including marital property, can be said to be reasonable in that it is designed to discourage attempts to conceal assets simply by acquiring them using the name of a councilor’s spouse.”
The European Court of Human Rights also endorsed the publication and internet access to declarations arguing that “the general public has a legitimate interest in ascertaining that local politics are transparent and Internet access to the declarations makes access to such information effective and easy. Without such access, the obligation would have no practical importance or genuine incidence on the degree to which the public is informed about the political process.”
Print Page

No comments:

Post a Comment