Corruption prevention in respect of members of parliament, judges and prosecutors

8/10/2019 Corruption prevention in respect of members of parliament, judges and prosecutors

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GRECO SecretariatCouncil of EuropeF-67075 Strasbourg Cedex

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%%%&coe&int'greco(irectorate General )

*u an Rig,ts and Rule of a%)nfor ation Societ. and /ction

against Cri e (irectorate

/doption #0 October $0#" Public 1ublication $# 2o3e ber $0#" Greco E3al )4 Rep $0#" E

FOURTH EVALUATION ROUND

Corruption pre3ention in respect of e bers ofparlia ent 8udges and prosecutors

EVALUATION REPORT

IRELAND

/dopted b. GRECO at its 65 t, 1lenar. 9eetingStrasbourg 6-#0 October $0#"

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TABLE OF CONTENTS

EXECUTIVE SUMMARY ..................................................................................................................................... 4

I. INTRODUCTION AND METHODOLOGY ..................................................................................................... 5

II. CONTEXT .................................................................................................................................................. 7

III. CORRUPTION PREVENTION IN RESPECT OF MEMBERS OF PARLIAMENT ..................................................

O4ER4)E: OF ;*E 1/R )/9E2;/R< S2ER/;)O2 /2( ECO2O9)C ?E2EF);S &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& CO2F )C;S OF )2;ERES; &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& 1RO*)?);)O2 OR RES;R)C;)O2 OF CER;/)2 /C;)4);)ES &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Gifts ............................................................................................................................................................. 16 Incompatibilities and accessory activities, post-employment restrictions ................................................... 17 Financial interests, contracts with State authorities, misuse of public resources, third party contacts

lobbyin!" .............................................................. ................................................................ ....................... 1# $isuse of confidential information ................................................................... .......................................... 1% ( EC /R/;)O2 OF /SSE;S )2CO9E )/?) );)ES /2( )2;ERES;S &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& S>1ER4)S)O2 /2( E2FORCE9E2; &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& / (4)CE ;R/)2)2G /2( /:/RE2ESS &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

IV. CORRUPTION PREVENTION IN RESPECT OF !UDGES ............................................................................... "#

O4ER4)E: OF ;*E @>()C)/ S);9E2; C/REER /2( CO2();)O2S OF SER4)CE &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& C/SE 9/2/GE9E2; /2( 1ROCE(>RE &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& E;*)C/ 1R)2C)1 ES R> ES OF CO2(>C; /2( CO2F )C;S OF )2;ERES; &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& 1RO*)?);)O2 OR RES;R)C;)O2 OF CER;/)2 /C;)4);)ES &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Incompatibilities and accessory activities, post-employment restrictions ................................................... &' (ecusal and routine withdrawal .................................................................................................. ................ &' Gifts ............................................................................................................................................................. &6 )hird party contacts, confidential information ....................................................... ..................................... &6

S>1ER4)S)O2 /2( E2FORCE9E2; &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& / (4)CE ;R/)2)2G /2( /:/RE2ESS &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

V. CORRUPTION PREVENTION IN RESPECT OF PROSECUTORS .................................................................... $#

O4ER4)E: OF ;*E 1ROSEC>;)O2 SER4)CE &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& RECR>);9E2; C/REER /2( CO2();)O2S OF SER4)CE &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& C/SE 9/2/GE9E2; /2( 1ROCE(>RE &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& E;*)C/ 1R)2C)1 ES R> ES OF CO2(>C; /2( CO2F )C;S OF )2;ERES; &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& 1RO*)?);)O2 OR RES;R)C;)O2 OF CER;/)2 /C;)4);)ES &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

Incompatibilities and accessory activities, post-employment restrictions ................................................... *1 (ecusal and routine withdrawal .................................................................................................. ................ *1 Gifts ............................................................................................................................................................. *+ )hird party contacts, confidential information ....................................................... ..................................... *+

( EC /R/;)O2 OF /SSE;S )2CO9E )/?) );)ES /2( )2;ERES;S &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& S>1ER4)S)O2 /2( E2FORCE9E2; &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& / (4)CE ;R/)2)2G /2( /:/RE2ESS &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

VI. RECOMMENDATIONS AND FOLLO%&UP ................................................................................................. 4'


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EXECUTIVE SUMMARY

1. Despite substantial reforms in the past relating to public administration including,for example, the adoption of the Freedom of Information Act, the Ethics Acts and theestablishment of connected accountabilit mechanisms, there is gro!ing concern aboutcorruption in Ireland. From rather lo! percei"ed corruption le"els, Ireland#s ran$ingaccording to %ransparenc International#s perception index fell significantl in 2&12. %hedrop could possibl be connected !ith the findings of a domestic en'uir , the ( MahonTribunal ), in"estigating corruption allegations in relation to planning permission andre*oning issues, in"ol"ing the business sector as !ell as politicians.

2. +imilar to the trends in se"eral other countries, political parties and politiciansha"e lo! le"els of trust in Ireland, according to international sur"e s. %he Irishauthorities are !ell a!are of this and reforms are under!a . a"ing said that, thelegislati"e process in the Irish -arliament is "er transparent a culture of openness hasbeen de"eloped, built on a solid legal frame!or$, !ithin !hich modern communicationtechni'ues are used to a large extent in order to pro"ide for broad public access andparticipation. Furthermore, the conduct of parliamentarians is go"erned b a !ide range

of standards, including constitutional principles, norms in the Ethics Acts and se"eralcodes of conduct and guidelines. o!e"er, the complexit of this structure is stri$ing andthe "arious norms are not al!a s full compatible !ith each other. As a result,interpretation of the standards can be challenging and a consolidated "alues/basednormati"e frame!or$ / for ethical principles and conduct of 0-s in "arious situations ofconflicting interests / !ould be beneficial. 0embers of parliament are obliged to pro"ideasset declarations ho!e"er, these obligations also need to be broadened, for example,to co"er liabilities as !ell as the interests of persons connected to members. 0oreo"er,the monitoring of 0-s# adherence to standards, codes of conduct and other obligationsalso need to be consolidated, made more uniform and preferabl gi"en a higher degreeof independence "is/ /"is -arliament and its members.

3.

%he udiciar and the -rosecution +er"ice are among the most trusted publicinstitutions in Ireland. %he independence and professionalism of udges is undisputed.o!e"er, recent measures ta$en to reduce public salaries, follo!ing the financial crisis,

ha"e been of particular concern for udges as their constitutional safeguard for theprotection of financial benefits has been amended. %his has triggered a discussion !ithinthe udiciar on ho! to uphold the historicall high ethical standards of an independentand professional udiciar in the future. In this connection, the establishment of a udicialcouncil and reforms of the current s stem of appointing and promoting udges, are in thefocus as necessar measures to maintain udicial integrit and independence.Furthermore, there is a need to establish a code of conduct ethics connected to anaccountabilit mechanism for udges and to institutionalise ongoing training. +uchmeasures, !hich en o strong support from the udiciar itself, re'uire substantialadditional resources. %he administrati"e situation in respect of prosecutors in Ireland is"er different to the one concerning udges for one ma or reason5 prosecutors aresub ect to !ell/de"eloped legislation, codes of conduct, guidelines, appointmentprocedures etc. of the ci"il ser"ice, complemented b dedicated measures targeting theparticularities of the profession of prosecutors. %hat said, it !ould appear that the-rosecution +er"ice in Ireland needs to enhance the organisational structures forrecei"ing and handling complaints concerning the integrit and ethical conduct ofprosecutors and also to be more transparent "is/ /"is the general public in this respect.


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I. INTRODUCTION AND METHODOLOGY

4. Ireland oined 78E9: in 1;;;. +ince its accession, the countr has been sub ect toe"aluation in the frame!or$ of 78E9:#s First

?. @ithin the Fourth E"aluation 8ound, the same priorit issues are addressed inrespect of all persons functions under re"ie!, namel 5

ethical principles, rules of conduct and conflicts of interest prohibition or restriction of certain acti"ities declaration of assets, income, liabilities and interests enforcement of the applicable rules a!areness.

. As regards parliamentar assemblies, the e"aluation focuses on members ofnational parliaments, including all chambers of parliament and regardless of !hether themembers of parliament are appointed or elected. 9oncerning the udiciar and otheractors in the pre/ udicial and udicial process, the e"aluation focuses on prosecutors andon udges, both professional and la udges, regardless of the t pe of court in !hich thesit, !ho are sub ect to national la!s and regulations.

B. In preparation of the present report, 78E9: used the responses to the E"aluationCuestionnaire


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1&. %he main ob ecti"e of the present report is to e"aluate the effecti"eness ofmeasures adopted b the authorities of Ireland in order to pre"ent corruption in respectof members of parliament, udges and prosecutors and to further their integrit inappearance and in realit . %he report contains a critical anal sis of the situation in thecountr , reflecting on the efforts made b the actors concerned and the results achie"ed,as !ell as identif ing possible shortcomings and ma$ing recommendations for furtherimpro"ement. In $eeping !ith the practice of 78E9:, the recommendations areaddressed to the authorities of Ireland, !hich are to determine the rele"antinstitutions bodies responsible for ta$ing the re'uisite action. @ithin 1B months follo!ingthe adoption of this report, Ireland shall report bac$ on the action ta$en in response tothe recommendations contained herein.


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II. CONTEXT

11. Ireland has o"er the ears, despite not ha"ing been considered as particularlaffected b corruption, according to "arious perception indices, underta$en substantialreforms including anti/corruption policies. As 78E9: noted pre"iousl


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parties top the list of least trusted institutions in Ireland, according to the European9ommission#s +pecial Eurobarometer on corruption 2&13 the stud indicates that 6 Oof those sur"e ed in Ireland thin$ that corruption is !idespread among politicians !hichcorresponds !ell to the current EG a"erage of those sur"e ed. As far as the udiciar isconcerned, the picture is much the opposite, udges in Ireland ha"e for a long time beenmuch respected for a high degree of independence and integrit and therefore en o ed a"er high degree of trust from the public the Eurobarometer 2&13 indicates that onl16O of those sur"e ed in Ireland thin$ that corruption is !idespread !ithin the courts,!hich is !ell belo! the EG a"erage of those sur"e ed. %he perception in respect of thepublic prosecution ser"ice is similar to that of the udiciar according to theaforementioned Eurobarometer 16O of those sur"e ed in Ireland belie"e that thecorruption is !idespread in this area, !hich is lo!er than the EG sur"e a"erage.

1 . It is the aim of the present report, !ith its anal sis and recommendations, toassist the Irish authorities in their efforts not onl to regain but also to raise the le"el ofintegrit of, and the public#s trust in, some of its fundamental institutions and theirindi"idual members. %he report is timel considering that the 7o"ernment#s currentreform programmes N lin$ed, inter alia , to the findings of the ( Mahon Tribunal ) as !ell as

on/going discussions in respect of reforms of the udiciar N need to addressshortcomings in se"eral of the areas targeted b this report.


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III. CORRUPTION PREVENTION IN RESPECT OF MEMBERS OF PARLIAMENT

:"er"ie! of the parliamentar s stem

1B. %he 8epublic of Ireland is a parliamentar democrac based on the @estministermodel !ith a !ritten constitution and a popularl elected president !ho has mostlformal po!ers. -arliament


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the da !hich is polling da generall throughout the +tate in relation to the electionconcerned, or ills to amend the constitution must also be appro"ed in a general referendumbefore being presented to the president. %he president is effecti"el obliged to sign allla!s appro"ed b parliament, although s he has the po!er to refer bills to the +upreme

9ourt for a ruling on the constitutionalit . :nce signed b the president, the bill becomesan act of the :ireachtas.

26. 9onstitutional, legal and procedural pro"isions in relation to consideration of draftla!s b parliament concern themsel"es primaril !ith setting out a formal frame!or$ forthe consideration of legislation. %he constitution defines the constitutional relationshipbet!een and respecti"e roles of go"ernment, the president and each house ofparliament, in relation to legislation as !ell as in other matters. Articles 2& to 2 of theconstitution deal specificall !ith legislation. %he procedure for the consideration of draftla!s b parliament is set out in the procedural rules


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considered to be a public document and is published on parliament#s !ebsite and alsomade a"ailable as a printed text. % picall , a bill is accompanied b an explanatormemorandum that pro"ides information on the purpose of the bill and explanations inrespect of its indi"idual pro"isions in more accessible language. As the bill passesthrough each house, amendments tabled b members


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33. In general, members of parliament are appointed to committees so that the partor group strength of the committee reflects relati"e strengths in the house in 'uestion.0embers are nominated b their parties or groups for appointment to ser"e oncommittees on this basis. Appointments of members to ser"e on committees anddischarge of members from committees re'uire an order of the house. %he order formspart of the official report of the debates of the house, published as pre"iousl described.Each committee also has a !ebpage on !hich the membership of the committee is listed.As a general rule


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in respect of "ouched entertainment expenses. %he authorities ha"e submitted details ofeach benefit.

4&. 0embers of parliament are not exempt from the ordinar income taxes, pensionrelated and the (uni"ersal social charge) deductions from their salaries. Jo special taxrate exists in respect of members.

41. @hile salar is paid until the election, in general, members# parliamentar benefitsas referenced in paragraph 3; are no longer pro"ided !hen a person ceases to be amember. %his includes the period bet!een the dissolution of parliament and a generalelection, !hether or not the member is re/elected.

42. 0embers of parliament ma supplement the budget for their offices from theiro!n resources, including from donations the recei"e. Donations ma be financial or in/$ind. Donations ma onl be used for political purposes as defined under section 4; ofthe Electoral


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encompass regulation of the conduct of members of parliament. %he 7E% shares theseconcerns and !as therefore pleased to learn that the ethical frame!or$ and standards inrespect of public officials, including parliamentarians, !ere in the process of beingo"erhauled and reformed b the 7o"ernment. An ethics legislati"e pro ect is beingpursued b the Department of -ublic Expenditure and 8eform !ith the aim of de"elopingan integrated ethics bill in"ol"ing a comprehensi"e o"erhaul and modernisation of thecurrent legislati"e frame!or$ for ethics, including anti/corruption measures 13. %hesereform efforts / to a large extent responses to the findings and $e recommendations ofthe (0ahon %ribunal) referred to abo"e/ merit support. In this context, the 7E% is of theopinion that the expected conduct of 0-s cannot be completel separated from theexpected conduct of their emplo ees. @hile 0-s in Ireland are considered, as a mainrule, to be responsible for the conduct of their emplo ees under general emplo mentlegislation, the normati"e ethical standards of 0-s do not expressl appl to 0-s# staffmembers. %his situation ma lead to discrepancies and different considerationsdepending on !ho is carr ing out a particular tas$, the 0- him herself or the emplo eeon behalf of the 0-. %he 7E% ta$es the "ie! that staff !or$ing on behalf of 0-s need tobe go"erned b the same standards as the 0- in that particular function. In "ie! of theabo"e, GRECO recommends !" !e e#$s $n% e !$cs &r"me'or( )e re*+"ced '$ !" ,n$&orm "nd conso+$d" ed -"+,es )"sed norm" $-e &r"me'or( encom*"ss$n%

!e e !$c"+ cond,c o& mem)ers o& *"r+$"men $nc+,d$n% !e$r s "&& "s"**ro*r$" e co-er$n% -"r$o,s s$ ," $ons o& con&+$c s o& $n eres /%$& s "nd o !er"d-"n "%es0 !$rd *"r 1 con "c s $nc+,d$n% +o))1$s s0 "ccessor1 "c $-$ $es "nd*os em*+o1men s$ ," $ons e c.2 '$ ! !e "$m o& *ro-$d$n% c+e"r r,+esconcern$n% !e$r e#*ec ed cond,c .

9onflicts of interest

61. %he Ethics Acts 1;;6 2&&1 aim at pre"enting both potential and actual conflicts ofinterests through disclosure. -otential conflicts of interest are to be disclosed, accordingto +ection 6 of the Ethics Act, !hich re'uires members to pro"ide annual statements of

their registrable interests, follo!ing a standard list of items, such as remunerations and"arious interests


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conflicts of interest arising and must ta$e all reasonable steps to resol"e an such conflict'uic$l and in a manner !hich is in the best interests of the public.

64. %he 7E% !elcomes that the Irish s stem of regulating conflicts of interest is builton a complementar approach in that it co"ers both potential conflicts, !hich are to bedeclared follo!ing a standard format at regular inter"als, and actual conflicts, !hich aresub ect to ad hoc reporting


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are unnecessaril complex and confusing. For example, the 9odes of 9onduct of the t!ohouses of parliament prohibit gifts that ma interfere !ith 0-s# honest and impartialexercise of their official duties and at the same time the rules ma$e exceptions forincidental gifts and customar hospitalit , !hich, in the "ie! of the 7E%, potentiallopens the !a for !ide interpretation. Furthermore, 0-s


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?3. %o sum up, in addition to the rules on eligibilit to parliament,


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bet!een office holders and lobb ists should be conducted so that the do not gi"e rise toa conflict bet!een public dut and pri"ate interests. %he 7E% is pleased that the 9odes of9onduct of both houses deal !ith 0-s# contacts !ith third parties, but again, the rulesrelating to office holders go further than those of ordinar 0-s. In this context, the 7E%notes that the Department of -ublic Expenditure and 8eform published the 8egistrationof obb ing >ill 2&14 on 2& une 2&14. %he purpose of this >ill is to establish a !ebbased register of lobb ing acti"it and deli"er appropriate transparenc on (!ho iscontacting !hom about !hat). According to +ection ? of the >ill all members of DLilMireann and +eanad Mireann are to be classed as designated public officials or Vthelobbied#. %he >ill ma$es pro"ision for the obb ing 8egistrar to produce a code of conductfor persons carr ing out lobb ing acti"ities !ith a "ie! to promoting high professionalstandards and good practice. %he +tandards in -ublic :ffice 9ommission !ill be the

obb ing 8egistrar. A re"ie! of the legislation N once adopted N one ear after itscommencement !ill pro"ide an opportunit to ensure that the legislation is meeting itsob ecti"es. @hile general lobb ing regulations are not central to the issues beinge"aluated in the current report, lobb ing is an increasingl important phenomenon !ithclear lin$s to corruption pre"ention in respect of members of parliament. %he 7E% refersin this respect to the recommendation in paragraph 6&.

Misuse of confidential infor!ation

?B. %here are pro"isions in the 9odes of 9onduct for members of the DLil and +eanad!hich deals !ith the use of official information or information obtained in confidence


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from +ection 111 b= +ection 1&? authorises a person ma$ing a confidentialcommunication to disclose it !ithout "iolating +ection 111 c= an 0- ma authorisedisclosure of a pri"ate paper to a third part pursuant to +ection 1&6


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?. 0embers# statements of registrable interests are entered into a registerestablished b the cler$ of each house and are laid before each house and published inIris :ifigiYil and on the :ireachtas# !ebsite. Furthermore, a cop of the registers isfurnished b the 9ler$s to the +tandards in -ublic :ffices 9ommission.

. In addition, the Ethics Act pro"ides that a member !ho proposes to spea$ or "otein parliament and !ho has actual $no!ledge that s he or a (connected person) 1B has amaterial interest in the sub ect matter shall ma$e a declaration about this interest beforeor during the speech and, in relation to "oting, before the "ote, in !riting. +ection 14 ofthe same Act pro"ides a similar obligation upon office holders !ho propose to perform afunction of their office and !ho ha"e a material interest to report this to, in the case ofthe prime minister, the chair of the +tandards 9ommission in the case of an otherminister of the 7o"ernment or a minister of +tate to the prime minister and the9ommission and, in the case of an other office holder, to the 9ommission 0embers maalso submit "oluntar statements at an time during the ear if their interests change, ifthe recei"e ad"ice that the must disclose an interest or if the ha"e failed to compl!ith a re'uirement to disclose an interest


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+uper"ision and enforcement

B2. %he Ethics Act foresees t!o main a"enues for challenging suspected breaches ofits regulations b members of parliament5 i= in respect of 0-s !ho are not office holders,the 9ommittee on 0embersT Interests of DLil Mireann 1; and the 9ommittee on 0embersTInterests of +eanad Mireann 2& ma , in addition to their other functions 21, carr outin"estigations concerning their respecti"e members and ii= complaints against 0-s !hoare also office holders, are to be submitted to the +tandards in -ublic :ffice 9ommission

there is insufficient e"idence to establish a pri!a facie case. If the complaint passesthese tests it is to be referred to the 9ommittee, !hich has to consider !hether the casemerits an initial in"estigation


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b a +ecretariat comprising nine staff. :ne of the principal functions of the 9ommission isto pro"ide ad"ice and guidelines on compliance !ith the Ethics Acts to office holders.

;?. 9omplaints ma be made b an one concerning a member of parliament !ho isalso an office holder, concerning an alleged contra"ention of the disclosure pro"isionsunder the 1;;6 Ethics Act. 9omplaints must be made in !riting and complainants cannotbe anon mous.

; . %he +tandards 9ommission can appoint an In'uir :fficer to assist it in itsconsideration as to !hether an in"estigation is !arranted


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9omplaints made b members in respect of 0-s !ho are not office holders are to be filed!ith the 9ommittee on 0embers# Interests of the DLil or the e'ui"alent 9ommittee of the+eanad, depending on to !hich house the 0- concerned belongs. In respect of those 0-s!ho are also office holders, the +tandards in -ublic :ffice 9ommission is the mechanismfor in"estigating alleged complaints. %he 7E% !as informed b the Irish authorities thatthis di"ided approach, reflects an interpretation of the constitutional position. E"en so,the 7E% does not find the current di"ision of the super"isor functions "er con"incing. It!ould appear that onl "er fe! complaints are filed in an of these s stems and thatone single bod , for example, the +tandards 9ommission, !ould appear !ell placed tocarr out the super"ision in respect of all members of both houses and regardless of!hether the 0-s are office holders or not, if sufficientl resourced. +uch a consolidatedapproach !ould at least from the "ie! of the !ider public appear much clearer.0oreo"er, a consolidated approach !ould pro"ide better o"ersight and ha"e the potentialto bring a coherent approach into the decision ma$ing. It !ould also be more con"incingfor the public that complaints against 0-s are not being in"estigated b other 0-s but ban independent bod . Furthermore, the 7E% notes !ith concern that the currentcomplaints mechanisms do not allo! for anon mous complaints and that the +tandards9ommission is not allo!ed to appoint in"estigators !ithout a formal complaint being

filed, !hich de facto pre"ents it from in"estigating misconduct e# officio. 0oreo"er, the7E% ta$es the position that all complaints, !hether the lead to decisions of earldismissal, dropped in"estigations or final decisions should, to the extent possible, bemade a"ailable to the public. -ublic scrutin is alread a !ell/established component inthe Irish s stem ho!e"er, that !ould be further reinforced if all decisions !ere madepublic. Finall , the 7E% belie"es that a consolidated independent monitoring mechanismneeds to be "ested !ith sufficient po!ers to carr out in"estigations


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interests to the +tandards 9ommission and


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in criminal cases, replacing the current 9ourt of 9riminal Appeal

egislation has pro"ided for t!o courts of local and limited urisdiction, "i*. the circuit

court and the district court.11;. %he 9ircuit 9ourt is the intermediate first instance urisdiction. It consists of apresident, 3 ordinar udges and six specialist udges. %he president of the circuit courtis ex/officio a member of the court. %he court operates in eight regional circuits, at leastten udges being assigned to the Dublin circuit, three to the 9or$ circuit, and one udgeeach to the remaining circuits. %he 9ircuit 9ourt, generall , has a ci"il urisdiction incases in"ol"ing claims not exceeding S3B &&& and a criminal urisdiction in respect of alloffences triable on indictment except those !ithin the exclusi"e urisdiction of the igh9ourt, mentioned abo"e. egislation has been enacted, raising to S 6 &&& the monetarthreshold of the 9ircuit 9ourt#s general ci"il urisdiction and S?& &&& the monetarthreshold in personal in uries actions.

12&. %he District 9ourt is the lo!est first instance urisdictional tier, being thee'ui"alent of a magistrate#s court. It consists of a president and ?3 ordinar udges. %hecourt operates locall in 24 districts, one udge being assigned to each district !ith theexception of the Dublin 0etropolitan District


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12?. All udges of the ordinar courts are appointed b the president of the republic onthe ad"ice of the go"ernment. %he udicial Appointments Ad"isor >oard < AA>= !asestablished b statute in 1;;6, charged !ith (identif ing persons and informing the7o"ernment of the suitabilit of those persons for appointment to udicial office.) %he

AA> acts on the re'uest of the 0inister for ustice and E'ualit !here a udicial officestands "acant or before a "acanc in a udicial office arises. %he AA> consists of the9hief ustice ar9ouncil a practising solicitor nominated b the -resident of the a! +ociet of Irelandand not more than three persons appointed b the 0inister for ustice and E'ualitengaged in or ha"ing $no!ledge or experience of commerce, finance, administration, orpersons !ho ha"e experience as consumers of the ser"ice pro"ided b the courts. Jone#)officio members are appointed for a period not exceeding three ears and are eligiblefor re/appointment.

12 . %here are no statutor pro"isions specificall pro"iding for assessment of integritof the AA> as a bod . An indi"idual member of the AA> ma be sub ect to statutordisclosure re'uirements under the Ethics Acts b "irtue of the office the hold, as in the

case of the Attorne 7eneral. olders of udicial office are not sub ect to the Ethics Acts.%he secretar to the AA> N the 9hief Executi"e :fficer of the 9ourts +er"ice N is alsosub ect to the Ethics Acts regime.

12B. %he AA> is re'uired to chec$ !hether a candidate satisfies the eligibilitre'uirements for the particular udicial office concerned fromrecommending a person to the 0inister for ustice and E'ualit for appointment to

udicial office unless the person has furnished to the AA> a tax clearance certificate anda declaration that all taxes, interest or penalties ha"e been paid.

12;. %he AA> must submit the names of at least se"en persons for each position itrecommends for appointment


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emplo ment N the are not classed as public or ci"il ser"ants and are not sub ect to themanagement and reporting structures, nor do the en o incremental salar scales, asapplies to public or ci"il ser"ants. Appointments of ser"ing udges to other udicial officesare made b the -resident of the 8epublic on the ad"ice of the go"ernment and are notsub ect to the process conducted b the AA>. @here the go"ernment proposes to ad"isethe -resident on an appointment to the office of 9hief ustice, -resident of the igh9ourt, -resident of the 9ircuit 9ourt or -resident of the District 9ourt it is to ha"e regardfirst to the 'ualifications and suitabilit of persons !ho are ser"ing at that time as

udges.

132. %he 7E% discussed the current structure for recruitment of udges !ith "ariousinterlocutors, including the udiciar itself, representati"es of the executi"e branch, the>ar, the a! +ociet , the -rosecution +er"ice, representati"es of ci"il societ and media.:n the one hand, the all seemed to agree that udges in Ireland


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136. %he constitution pro"ides that a udge of the +upreme 9ourt or the igh 9ourtcannot be remo"ed from office except for stated misbeha"iour or incapacit , and thenonl upon resolutions passed b each house of parliament calling for the udge#s remo"al.

(+tated misbeha"iour) !ould appear to extend be ond beha"iour in the course of one#sduties as a udge. In arri"ing at such a resolution, members of the houses of parliament!ould be re'uired to act in accordance !ith the rules of procedural fairness guaranteedb the constitution. udges of the lo!er courts ha"e been gi"en b statute tenuree'ui"alent to that of their counterparts in the superior courts.

13?. %he gross annual salar of udges ranges from S12 234 in respect of a udge at adistrict court to S2&2 ?22 for a udge at the +upreme 9ourt. o!e"er, for udgesappointed as of 1 anuar 2&12 the e'ui"alent remuneration rates are S114 11 in theDistrict court and S1B2 B;6 in the +upreme 9ourt. %he annual salaries of the presidentsof the respecti"e courts are some S2& &&&/3& &&& higher than the salaries of ordinar

udges. >esides co"erage for tra"el and subsistence expenses and a udicial allo!ance forcosts incurred in the carr ing/out of their udicial functions, udges do not recei"eadditional benefits.

13 . Jet udicial remuneration in Ireland has been cut significantl as a result of therecent financial crisis. -re"iousl protected b a constitutional pro"ision that their salariescould not be reduced, udges !ere initiall exempt from a pa reduction !hich applied toother public officials, and !hen the udiciar as a !hole did not agree to a "oluntar cut,a political bac$lash ensued the constitutional protection !as re"o$ed and amended 31 bpublic referendum and a series of pa and pension cuts !ere implemented. %hecumulati"e effect of these measures has been to reduce o"erall udicial compensation, insome cases b as much as 4&/6&O, according to udicial representati"es. It !asexplained to the 7E% that the most immediate impact has been on udges currentlser"ing, man are said to be demoralised follo!ing the go"ernment#s campaign for thereferendum, some are under financial stress and the ha"e no longer the sameconstitutional guarantee against further pa cuts at the same time as the far/going

constitutional restraints from recei"ing an other incomes pre"ail. 0oreo"er, the ne!s stem has introduced salar differences bet!een udges, depending on their entr intothe ser"ice. %hese circumstances are bound to ha"e a negati"e impact on the possibilitto recruit top 'ualit udges in the future, according to most interlocutors met b the7E%, at the same time as the need to recruit is li$el to increase as man ser"ing udgesare contemplating lea"ing the ser"ice on earl retirement, because of the changedconditions. %he 7E% ta$es note of the upcoming situation !hich is particularl difficult ina common la! countr , such as Ireland, !here udges are recruited from the practicingbar, ha"ing pro"en their 'ualities follo!ing decades of successful !or$ and thus enteringinto the ser"ice at a late stage !ith a rather limited pension "esting period.

13B. %o sum up, !hile the 7E% is full a!are that all public officials in Ireland ha"eexperienced pa cuts as a result of the financial crisis, it !ould appear that the udgesha"e been particularl affected not onl in financial terms, but also in respect of theirfuture constitutional guarantees. %hese measures go be ond the mere financial aspectsas the ha"e a principal impact on udicial independence. %he 7E% understood that thelac$ of a udicial council or other forms of associations on behalf of udges 32, made themparticularl fragile during the go"ernment campaign for the need to reduce udicialsalaries and benefits. %his further highlights the need to establish a udicial council as animportant lin$ bet!een the udiciar and the executi"e branch, as recommended inparagraph 124. o!e"er, the upcoming situation !ould also merit further measuresaiming at returning to a situation of long/term stabilit !ithin the udiciar and to

31 Follo!ing the amendment, the udiciar retains the general constitutional protection for their indi"idualprotection, but ma as a group ha"e their remuneration proportionall reduced !hen similar groups of publicser"ants ha"e their remuneration reduced in the public interest.32 %he Association of udges in Ireland !as established in late 2&11 to further the profession of udges and togi"e a collecti"e "oice to udges.


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reinforcing the respect for, and integrit of, an independent udiciar ustifiabl proud ofits histor and similarl able for the future. GRECO recommends !" "n "**ro*r$" es r,c ,re )e es ")+$s!ed '$ !$n !e &r"me'or( o& '!$c! 3,es $ons concern$n%cons $ , $on"+ s"&e%,"rds o& !e =,d$c$"r1 $n connec $on '$ ! em*+o1mencond$ $ons "re o )e e#"m$ned $n c+ose d$"+o%,e '$ ! =,d$c$"+ re*resen " $-es '$ ! " -$e' o m"$n "$n$n% !e !$%! +e-e+s o& =,d$c$"+ $n e%r$ 1 "nd *ro&ess$on"+3,"+$ 1 $n !e &, ,re .

9ase management and procedure

13;. %he presidents of all courts, or in their absence senior ordinar udges, areempo!ered to distribute and allocate the "arious cases ha"ing reached the particularcourt. Je! cases are listed b date and distributed to udges randoml . :nce a case hasbeen allocated to a particular udge and that udge has commenced hearing the case, the

udge ma not be remo"ed from the case sa"e in the circumstances mentioned belo!arising on a udicial re"ie! or appeal. %hat said, it is established practice for udges torecuse themsel"es in a case !here the ha"e an interest, see also belo!


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and to the best of !y "no$ledge and po$er e#ecute the office of *hief >ustice (or as thecase !ay be $ithout fear or favour, affection or ill)$ill to$ards any !an, and that I $illuphold the *onstitution and the la$s' May 6od direct and sustain !e' X

146. +tandards of conduct for udges are not currentl reflected in an formaldocument. As referred to abo"e


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paragraph 14?=. 7uidelines in this respect !ould bring clarit to the !ider public in suchmatters.

6ifts

16&. %he 7E% also notes that there are no specific rules on the acceptance of gifts b udges. %he authorities stress that acceptance of a gift as an inducement in relation tothe functions of a udge !ould constitute a criminal offence as !ell as grounds forproceedings for impeachment. 0oreo"er, the 7E% did not come across an indication thatgifts to udges represented a particular problem in Ireland ho!e"er, a clear reference tothe prohibition of gifts should be included in the future code of conduct


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16?. %he 7E%#s inter"ie!s !ith udges at all four court le"els confirm the udiciar #smindfulness of the need to establish a udicial council as a necessar lin$ bet!een the

udiciar and other po!ers of the state. +uch a bod !hich, according to informationpro"ided to the 7E%, should not onl be tas$ed to de"elop guidelines and codes ofconduct but also to act in order to enforce such rules. %he 7E% has alread expressed its"ie! in this report as to the need for establishing such a council it !ishes to add that thecurrent situation !ith no form of disciplinar bod of the udiciar ma lead to aperception that udges are incapable of in"estigating and policing themsel"es formisconduct short of an impeachable offence, !ar of a uniform code of conduct.

o!e"er, the 7E% found the opposite to be true. udges in Ireland !ant clear guidelinesto go"ern their conduct to be accompanied b a transparent process to in"estigate andad udicate allegations of misconduct. %he 7E% agrees !ith such a need and has alreadmade a recommendation for the establishment of a udicial council, tas$ed !ith suchfunctions, see paragraph 124.

Ad"ice, training and a!areness

16 . Jo indi"idual or bod ma gi"e an directi"e in indi"idual cases to udges as to

ho! the ma determine a case. A procedure $no!n as the case stated procedureenables a udge from a lo!er court in certain circumstances to see$ ad"ice / a rulingfrom a higher court N at a formal hearing conducted inter partes / on a discrete point ofla! rele"ant to the case being dealt !ith at first instance.

16B. 9urrentl , udicial education is o"erseen b a 9ommittee on udicial +tudieschaired b the 9hief ustice and consisting of the presidents of the "arious urisdictionsand other members of the udiciar nominated for the purpose. udicial educationencompasses induction as !ell as continuing education.

16;. As regards induction training, e ach ne! appointee to udicial office is pro"ided !ithbriefing material !hich includes a cop of the >angalore -rinciples of udicial 9onduct

and Gnited Jations/authored material on udicial ethics and standards of conduct. Gnderthe auspices of the 9ommittee on udicial Induction and 0entoring


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-rosecutions consists of t!o legal di"isions, the directing di"ision and the solicitors#di"ision. %here is also an administration di"ision that pro"ides the organisational,infrastructural, administrati"e and information ser"ices re'uired b the office. 9urrentl ,there are some 1B6 permanent staff in the office of the D--.

1?B. %he Directing Di"ision comprises a small number of professional officers, bothbarristers and solicitors, !hose principal function is to ma$e submissions to the director,to ta$e decisions in relation to the initiation or continuation of criminal prosecutions andto gi"e ongoing instructions and directions to the +olicitors# Di"ision, local +tate +olicitorsand counsel regarding the conduct of criminal proceedings. %hese professional officersare di"ided into three units, each led b a unit head. A unit head, the head of thedirecting di"ision, the Deput Director or the Director are entitled to "alidate or in"alidatedecisions of professional officers. 0embers of the 7arda +PochLna or "ictims of a crimema see$, and !ill usuall recei"e, a re"ie! on an decision not to prosecute aprofessional officer.

1?;. %he !or$ of appearing for the director in court is carried out either b the full/timelegal staff in the +olicitors# Di"ision in Dublin, or b the local +tate +olicitors in courts

outside Dublin. %he +olicitors# Di"ision is headed b the 9hief -rosecution +olicitor, !hoacts as solicitor to the /Director, and is staffed b solicitors and legal executi"es. %heconduct of trials on indictment is handled b barristers !ho are nominated b thedirector on a case b case basis and prosecute in accordance !ith the director#sinstructions.

1 &. 0ost summar prosecutions brought in the district court are brought in the nameof the director. In practice the great ma orit are presented b officers of the 7arda+PochLna !ithout specific reference to the director#s office, except in cases !here 7ardaisee$ or are re'uired b general direction to see$, a direction. %he institution and carriageof such prosecutions are monitored generall b senior members of the 7arda +PochLna.%he director ma assume the conduct of a prosecution instituted b a member of the

7arda +PochLna at an time. 1 1. In addition there are specialised in"estigating authorities in relation to certainparticular categories of crime, including the 9ompetition Authorit , the in"estigationbranch of the 8e"enue 9ommissioners, the ealth and +afet Authorit and the :ffice ofDirector of 9orporate Enforcement, !ho retain po!er to prosecute summar offences!ithin their functional area.

1 2. %he 7E% met !ith the representati"es of the D-- in the head'uarters of thisconstitutionall independent state institution and !as generall impressed !ith its clearorganisational structure and dedicated staff.

8ecruitment, career and conditions of ser"ice

1 3. %he Director of -ublic -rosecutions ar of Ireland, the -resident of the a! +ociet ,the +ecretar to the 7o"ernment and the Director 7eneral of the :ffice of the Attorne7eneral. 3; %enure is a matter to be determined b the go"ernment on appointment, thecurrent office holder being on a 1&/ ear non/rene!able term. All other prosecutors,although not ci"il ser"ants, are appointed to the office under the rules appl ing to ci"ilser"ants on permanent contract sub ect to an upper retirement age. +tate solicitors arecurrentl appointed b the director, on the basis of a ten/ ear, rene!able, contract forser"ices.

3; +ection 2 of the -rosecution of all offences act, 1; 4.


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their official duties. %heir terms and conditions of emplo ment also re'uire that thea"oid conflicts of interest !hich might be inconsistent !ith their official positions orinterfere !ith the performance of their !or$.

1B1. Furthermore, the 9i"il +er"ice 9ode of +tandards and >eha"iour 4&, issued b the0inister for Finance pursuant to section 1& eha"iour, outlinesrestrictions on post/emplo ment acti"ities in respect of all ci"il ser"ants, outsideappointments as !ell as concerning post/emplo ment engagements. %here are noregulations that !ould prohibit prosecutors from being emplo ed in certainposts functions, or engaging in other paid or unpaid acti"ities after exercising aprosecutorial function ho!e"er, the 7E% did not come across an practical concerns inthis respect.

Decusal and routine $ithdra$al

1B?. -aragraph 1.


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outcome of a prosecution or !here a person, !ho is connected !ith the prosecutor, hasan interest in the outcome of the prosecution of !hich the prosecutor has actual$no!ledge.

1B . According to the same code a prosecutor is obliged to bring to the attention of thedirector an circumstances !hich might reasonabl lead a member of the public or partha"ing an interest in a case to percei"e an conflict of interest or lac$ of impartialit onthe part of the prosecutor.

6ifts

1BB. -aragraph 1. of the 9ode of Ethics for -rosecutors re'uires, inter alia , thatprosecutors ( !ust not accept any gift, pri e, loan, favour, induce!ent, hospitality orother benefit in relation to anything done or to be done or o!itted to be done inconnection $ith the perfor!ance of their duties or $hich !ay be seen to co!pro!isetheir integrity, fairness or independence' A prosecutor !ay, sub:ect to la$ and to anylegal require!ents of public disclosure, receive a to"en gift, a$ard or benefit asappropriate to the occasion on $hich it is !ade provided that such gift, a$ard or benefit

could not reasonably be perceived as intended to influence the prosecutor in the perfor!ance of his or her duties or other$ise give rise to an appearance of partiality.'

1B;. In addition, the acceptance of a gift as an inducement in relation to a case in!hich a prosecutor !as exercising a function !ould constitute a criminal offence.

Third party contacts, confidential infor!ation

1;&. -aragraph 1. of the 9ode of Ethics for -rosecutors re'uires, inter alia , thatprosecutors ha"e to a"oid impropriet and the appearance of impropriet and a"oidsituations !hich might reasonabl gi"e rise to the suspicion or appearance of fa"ouritismor partialit


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contracts, gifts, propert and ser"ice and other interests. %he form is accompanied bexplanator notes.

1;3. %he 7E% notes in this respect that the rules on asset declarations are !ea$ in thefollo!ing respects there is no re'uirement to disclose 'uantitati"e data about the"arious interests, liabilities and potential interests such as offers of remunerated non/remunerated acti"ities and agreements for future acti"ities interests are not to bedeclared. %he rules could !ell be strengthened in these respects ho!e"er, as these ruleson asset declarations are not particularl designed for prosecutors but to the ci"il ser"icein general, this matter ought to be addressed in a such a context. 9onse'uentl , the 7E%sees no need to single out prosecutors in this respect.

+uper"ision and enforcement

1;4. As a starting point, in Ireland, prosecutors are, li$e an other person, criminallliable for their actions. %here are no immunities or special procedures for prosecutorsunder Irish la! in relation to prosecution for criminal offences. -rosecutors are includedin the definition of (public official) for the purpose of corruption offences.

1;6. %he super"ision of the implementation of the Ethics Acts or the 9i"il +er"ice 9ode,as far as the prosecution ser"ice is concerned, applies in respect of all prosecutorsholding a delegated abilit to direct the initiation or course of a prosecution


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0a 2&13 and is currentl in operation. It follo!s, inter alia , from the polic documentthat complaints are to be registered and dealt !ith b the di"ision concerned

2&&. +tatistics about complaints filed !ith the D-- are a"ailable as of 2&13


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2& . %he authorities also refer to the issuing of notices and directi"es b the director,concerning sensiti"e matters, such as information sharing and access to personalinformation as a complement to the in/ser"ice training.

2&B. %he 7E% !elcomes the fact that the D-- has de"eloped dedicated and structuredtraining on a regular basis co"ering pertinent issues of the -rosecution +er"ice, includingmeasures aiming at fostering ethical conduct and pre"ention of corruption.


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VI. RECOMMENDATIONS AND FOLLO? UP

2&;. In "ie! of the findings of the present report, 78E9: addresses the follo!ingrecommendations to Ireland5

Degarding !e!bers of parlia!ent

$2 !" !e e#$s $n% e !$cs &r"me'or( )e re*+"ced '$ ! " ,n$&orm "ndconso+$d" ed -"+,es )"sed norm" $-e &r"me'or( encom*"ss$n% !ee !$c"+ cond,c o& mem)ers o& *"r+$"men $nc+,d$n% !e$r s "&& "s"**ro*r$" e co-er$n% -"r$o,s s$ ," $ons o& con&+$c s o& $n eres /%$& s"nd o !er "d-"n "%es0 !$rd *"r 1 con "c s $nc+,d$n% +o))1$s s0"ccessor1 "c $-$ $es "nd *os em*+o1men s$ ," $ons e c.2 '$ ! !e "$mo& *ro-$d$n% c+e"r r,+es concern$n% !e$r e#*ec ed cond,c


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-$$$2 !" "n "**ro*r$" e s r,c ,re )e es ")+$s!ed '$ !$n !e &r"me'or( o&'!$c! 3,es $ons concern$n% cons $ , $on"+ s"&e%,"rds o& !e =,d$c$"r1$n connec $on '$ ! em*+o1men cond$ $ons "re o )e e#"m$ned $nc+ose d$"+o%,e '$ ! =,d$c$"+ re*resen " $-es '$ ! " -$e' om"$n "$n$n% !e !$%! +e-e+s o& =,d$c$"+ $n e%r$ 1 "nd *ro&ess$on"+3,"+$ 1 $n !e &, ,re


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Ab(u) GRECO

;,e Group of States against Corruption GRECO onitors t,e co pliance of its "= 9e ber states

%it, t,e Council of EuropeAs anti-corruption instru ents& GRECOAs onitoring co prises an

Be3aluation procedure %,ic, is based on countr. specific responses to a Duestionnaire and on-site

3isits and %,ic, is follo%ed up b. an i pact assess ent Bco pliance procedure %,ic, exa ines

t,e easures ta en to i ple ent t,e reco endations e anating fro t,e countr. e3aluations& /

d.na ic process of utual e3aluation and peer pressure is applied co bining t,e expertise of

practitioners acting as e3aluators and state representati3es sitting in plenar.&

;,e %or carried out b. GRECO ,as led to t,e adoption of a considerable nu ber of reports t,at

contain a %ealt, of factual infor ation on European anti-corruption policies and practices& ;,e

reports identif. ac,ie3e ents and s,ortco ings in national legislation regulations policies and

institutional set-ups and include reco endations intended to i pro3e t,e capacit. of states to

fig,t corruption and to pro ote integrit.&

9e bers,ip in GRECO is open on an eDual footing to Council of Europe 9e ber states and non-

9e ber states& ;,e e3aluation and co pliance reports adopted b. GRECO as %ell as ot,er

Corruption prevention in respect of members of parliament, judges and prosecutors

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Transcript of Corruption prevention in respect of members of parliament, judges and prosecutors