Combating Corruption in Kosovo
A Report by
Operation Kosovo[1]
Chicago-Kent College of Law
Illinois Institute of Technology
23 October 2006[2] - revised 29 October 2006
Table of
contents
E. Past Failures in Reducing Corruption
III. Best practices from the United
States and elsewhere
6. Synthesis from U.S. stories
2. Criminal intelligence must be turned into
admissible evidence
a) Cooperating witnesses must be recruited,
often by threatening prosecution
3. Electronic surveillance must be conducted to
produce compelling evidence for use at trial
5. Anti-corruption campaigns cannot
succeed without a professional criminal justice infrastructure
b) Investigative journalism can complement
official investigations but it cannot succeed on its own.
IV. Challenges in adapting best
practices to Kosovo
B. Application of Theoretical Models to
Kosovo
D. Differentiating Types of Corruption
and Setting the Right Priorities
1. Public corporation procurement:
member of the board bids, loses, causes re-evaluation
3. “If you give me ten thousand Euros,
the contract is yours”
2. Empower the right anti-corruption
champion
3. Give full legal authority to a
special prosecutor
4. Organize undercover investigations
and recruit cooperating witnesses
a) Authorize undercover investigations
b) Allow cooperating witnesses
5. Permit electronic eavesdropping
under appropriate conditions
6. Institutionalize governmental
monitoring
a) Model the Kosovo Auditor-General on
the U.S. GAO
b) Model the Kosovo Anti-Corruption
Agency on U.S. Inspectors General
9. Support investigative journalism
10. Reinforce anti-corruption norms
A. What’s possible in one year
B. What’s possible in three years
C. What’s possible in ten years
D. Finding Potential Informants and
Cooperating Witnesses to “Jam Up”
1. Fighting Corruption at the Municipal
(Local Government) Level
2. Fighting Corruption in Central
Government
3. Fighting Corruption at the
Parliamentary Level
4. Fighting Corruption in the Business
Sector
Kosovo, once prominent on Western TV screens and on the front pages of newspapers, is about to become independent. Whether independence, long dreamed of by most of its Albanian inhabitants, helps them realize their aspirations depends on whether their leaders can eliminate pervasive corruption.
Kosovo is legally a
Despite this history, Kosovo is today a modern society, at least in its cities. Street crime is almost non-existent. Kosovars are strongly patriotic to their long-standing dream of having their own country. They love Americans, who, they think, rescued them from Serb occupation through the NATO intervention of 1999. Four elections have been held since the NATO intervention, and were characterized as free and fair by all international observers.
Sovereignty is shared between an elected Albanian national government and a UN mission (“UNMIK”) which retains ultimate decisionmaking power in the executive, legislative and judicial realms. Both the UN administration and the elected local government have been largely ineffective and inattentive to the major domestic problem of 60% unemployment. Each level of government blames the other for inaction. Ordinary people cope through an extraordinary combination of entrepreneurship and patriotism. Many of their economic activities operate “under the radar screen” of formal government institutions. The most charismatic and effective indigenous leader is Ramush Haradinaj, former KLA commander, and Prime Minister until he was indicted by the International Criminal Tribunal for the former Yugoslavia (“ICTY”). A recent public opinion survey showed Haradinaj to be the second-most popular Kosovar, after former KLA chief-of-staff Agim Çeku, the current Prime Minister. Çeku is closely associated with Haradinaj, and, many observers believe, controlled by him.
Even those who support independence for Kosovo worry about the effect of corruption on its future. Smuggling with impunity, nepotism, and bribes at all levels are believed to occur regularly. More recently, a source of concern has been the unwillingness of Prime Minister Çeku to take action against ministers he inherited from his predecessor who are widely perceived to ineffective or corrupt or both, despite concrete charges against some of them. Despite early promises that he would “clean house,” he has backed away from that declaration and acceded to public statements by the heads of both of the parties in his coalition government that the political parties, and not the Prime Minister, will decide whether ministers should be retained.
A few critics of the government assert that the defense fund for Haradinaj, organized to defend him against the war-crimes accusations, is a cover for intensified corruption in public contracting. Most Kosovars, however, both publicly and privately, vigorously defend the fund as necessary to make sure that Haradinaj gets a fair trial of what are widely believed to be trumped up charges, motivated by the politics of the Tribunal’s desire to seem “even-handed,” by prosecuting Albanians as well as Serbs, Croats, and Bosniaks. The defense fund has announced a goal of raising 12 million Euros. There is no evidence that the defense fund receives money from illicit sources or spends it for improper purposes. Michael O’Reilly, senior adviser to Haradinaj, and leader of his defense team, informed the author that “I have already published the first annual accounts for the fund at a time (April of this year) when we had raised approximately E6.5m, I held a press conference to do so and that I made available to journalists a full list of donors and the amounts that they had gifted. Every cent of the fund is and will continue to be accounted for.” Nevertheless, many continue to be unaware of the names of contributors or the fund’s expenditures. The belief that the fund is insufficiently transparent, whether accurate or not, fuels suspicion in a society that embraces conspiracy theories. Haradinaj, attractive to the international community as a decisive and effective leader—and one of the few who has sufficient credentials as a fighter to tamp down public disappointment about the terms of independence—is also impulsive and domineering. Most internationals and locals believe that the international authorities block any serious investigation of Haradinaj’s widely-rumored ties and supervision of cigarette, drug, and human trafficking activities and of past political and witness-murders suspiciously linked to Haradinaj’s interests. Some outside experts also believe that the internationals blocked the arrest of the revered and recently deceased president, Ibrihim Rugova, for corruption.
There is no publicly available evidence to support any of these allegations or suspicions. The point is not to argue that the suspicions are correct, but to acknowledge that they fuel political alienation and undercut effective leadership.
The opposition political party, led by former KLA political director Hashim Thaçi, launched a major anti-corruption campaign against the Haradinaj/Çeku government about a year ago, making specific allegations against several ministers. The opinion surveys show that approval of Thaçi and his party has declined since he began the campaign. One reason may be that the public views Thaçi’s party as equally corrupt and not particularly interested in rooting out corruption when it was part of the previous coalition government and controlled the Prime Ministership.
Ordinary citizens in Kosovo complain about corruption, but their definitions of corruption are diffuse. Many of those who claim to have experienced it say they are afraid to complain lest they be killed. The public prosecution service and the judiciary are widely viewed as incompetent, corrupt, and scared. A new anti-corruption agency has no office facilities, no staff beyond the director, and no budget. Despite widespread complaints about corruption, there have been no high-profile corruption prosecutions in seven years of international administration.
As of late fall, 2006, the attention of internationals involved in Kosovo and of the Kosovar political leadership naturally is focused primarily on final status negotiations and the possibility of independence. Most participants and observers believe that a measure of independence will be the result, taking effect as early as mid-2007. Once Kosovo becomes independent, attention must shift to building an effective independent state, not only strengthening the democracy that already exists, but also demonstrating the capacity of an independent, locally elected government to solve domestic problems, particularly including stimulating economic growth and creating jobs.
Eliminating or reducing the effects of public corruption is an essential part of this undertaking. As long as public corruption is widely perceived to be a significant reality, foreign investors will be reluctant to invest in Kosovo, local businessmen will have an incentive to evade responsibilities imposed by the law, and ordinary members of the public will become further alienated from the democratic political process.
This report, prepared without outside financial sponsorship, seeks to define the public corruption problem in Kosovo more precisely than previous public reports have done, and to consider what “best practices” from the United States and other developed democracies can be adapted to the realities of Kosovo’s history and political situation. It offers concrete recommendations for a major anti-corruption initiative to be undertaken after independence.
The report draws upon Professor Perritt’s eight years of
close involvement in Kosovo. That involvement began during the conflict as the
KLA was gaining strength, and more recently has included more than 100
interviews and other research for his forthcoming book on the KLA. Under
Professor Perritt’s leadership, several students from Chicago-Kent and Illinois
Institute of Technology have worked in Kosovo and in
Several outside institutions have collected data on
corruption in Kosovo. The United Nations Development Program (“UNDP”) conducted
a public opinion survey in April, 2004. The United States Agency for
International Development (“USAID”) conducted a survey in the summer of 2003.
The government of
The UNDP survey labeled Kosovo as an area of high corruption possibility, due to its developing economy, transitional government, and young institutions. Kosovars labeled low wages as the primary source of petty corruption in the survey.
Ordinary Kosovars, however, expressed a low tolerance for corruption in society. Most responded that corruption was the greatest evil in their society. Yet, more respondents accepted corruption when it dealt with receiving basic needs, such as jobs and healthcare services. Kosovars blame the KEK (the electricity provider), hospitals, customs, the coalition government, and the presidency for most corruption in society. Healthcare claims come from actual experience while claims regarding the KEK and customs seem to be based more on news stories than on experience. There is a high perception of corruption in government institutions although no such evidence leads to this conclusion. Most survey respondents did not report personal experience with corrupt conduct by governmental officials but nevertheless perceive such conduct to be widespread.
The survey shows differences of opinion about what constitutes corruption.[3] Although eighty percent of survey respondents identified bribes and other illegal procedures as corrupt,[4] fewer labeled preferences based on personal or family relationships as corrupt.
The younger generation in Kosovo is more optimistic about fighting corruption than older generations.[5] In order for progress to occur, the survey suggests that accountability must increase, simplification of government processes must occur, and that prevention, enforcement, complaint, and coordination procedures must be clearer and more responsive. Thirty percent of Kosovars feel that the Assembly of Kosovo should take the lead to fight corruption in Kosovo after the full transfer of power from the UNMIK, by far the largest level of support for any one institution to take the lead.[6]
A USAID survey in Kosovo was conducted over a four month period from May through August 2003. Levels of political, institutional, economic, and social stability were measured as well as inter-ethnic relations and public and personal security.
The survey showed a general downward trend regarding public
opinion about the economy in Kosovo.[7]
Organized crime and corruption contributed to this pessimism. The public
perceived a moderately high to high level of organized crime in Kosovo,[8]
focused on trafficking of human beings, drug smuggling, and other economic and
violent crimes. Many Albanians felt that the business community was connected
to organized crime. Corruption as a whole in Kosovo was perceived as second in
importance behind unemployment, followed by low incomes, and high prices.[9]
Data compiled from surveys of Kosovo’s neighbors including
Corruption problems may intensify in Kosovo as a result of more powers being transferred from UNMIK to the PISG (Provisional Institutions of Self Government-the locally elected government). The report suggests that corruption be fought at its roots, with a focus on the development of fundamental judicial and legal institutions as a top priority. It also suggests that the government in Kosovo must become more transparent in order to gain trust from the public.
The government of
An August, 2006, news story in the major German newspaper Berliner Zeitung cited German intelligence-service reports as backing up some of these claims. The motive and validity of the story are open to question, however, and its allegations have not generally been repeated by other German press and media.
If the perceptions and allegations of corruption are even partially true, corruption will cripple the effort to build a democratic and prosperous society in the context of independence. The challenges for an independent Kosovo would be daunting even if corruption were altogether absent. The transformation of a political culture that has been focused for 100 years or longer in criticizing the dominance of outside “occupiers” into one that can forge effective political coalitions focused on delivering results is incomplete. In the economic arena, Kosovo depends on expenditures by internationals associated with the UN civil administration or with the many NGOs now present in Kosovo for close to 50 percent of its GDP. A viable economic program must include plausible steps to prevent a sharp depression as these expenditures are reduced—as they surely will be after independence is achieved. Even after privatization is completed, it is far from clear what sectors of the economy offer comparative advantage to Kosovar producers of goods and services. Considerable insight and experimentation will be necessary to find Kosovo’s place in the regional and world economy.
When one adds corruption to this equation, the likelihood of meeting these challenges is low. If local businessmen and outside investors discover or perceive that substantial amounts of their capital must be diverted to bribe public officials, the threshold for investing will increase significantly. If tax revenues are diverted for the private advantage of public officials, the relationship between the burden of taxes on economic activity and governmental contributions to sound economic growth will be adverse. The capacity of public institutions will be reduced if government positions are given to relatives or political cronies without regard for performance or ability. To the extent that a culture of corruption also infects law enforcement personnel, public prosecutors, and the judiciary, rooting out corruption elsewhere will be more difficult.
Politically, widespread corruption or the perception of widespread corruption erodes trust in democracy and the rule of law. If an ordinary Kosovar believes that government agencies and courts exist primarily to obtain bribes and private advantages, he will avoid participating in democracy and will evade the law.
Despite widespread reports of corruption in Kosovo since the beginning of the UN civil administration of the territory, few high profile corruption investigations have been pursued, let alone concluded successfully. The reasons for this are not entirely clear. One distinct possibility is that top UN officials, and the major powers working through the Contact Group and the UN Security Council, have not been interested in attacking public corruption aggressively because they fear it would destabilize the political structure. A serious anti-corruption initiative could reduce the effectiveness or actually remove from the scene the most effective and influential political leaders.
Another possibility is that the political will to attack corruption is absent in the Kosovar Albanian community, and without such political will, foreign prosecutors and judges cannot be effective in any anti-corruption campaign.
Another possibility is that the foreign investigators, prosecutors, and judges introduced into Kosovo simply lack the expertise, work ethic, and results orientation to mount an effective anti-corruption campaign.
The reality is probably some combination of all three possibilities.
Public corruption is not, of course, a problem unique to
Kosovo; it is a problem everywhere, including in the most developed,
democratic, and law abiding societies. In the
This section begins with a summary of relevant theoretical observations and then offers a number of case studies including one from Italy and several from the United States that support 10 “axioms” about best practices in anti-corruption campaigns. It will be difficult to operate a successful anti-corruption campaign in Kosovo without taking these axioms into account.
Public corruption is a creature of history, custom and
self-interest. Three bodies of theory are helpful in structuring a framework
for understanding public corruption in Kosovo. The broadest is offered by
Robert Neild,[11] a
retired professor of economics and a fellow of
Neild turns the usual analysis of public corruption on its head, noting that corruption in government has been the norm in most societies for the last several centuries. Accordingly, he suggests that the most useful question is how, in exceptional cases, corrupt societies have been able to become less corrupt. He emphasizes that the definition of corruption differs among societies and has changed over time in each society.[12] He defines public corruption as “the breaking by public persons, for the sake of private financial or political gain, of the rules of conduct in public affairs prevailing in a society in the period under consideration.”[13]
He then posits
that the amount of corruption in a society depends on the gap between (1) the
number of decisions to be made by public officials, which in turn depends upon
the intensity of government regulation and (2) the extent to which those
decisions are made dishonestly.[14]
He reinforces his conclusions by close historical studies of
Neild emphasizes the necessity of political will to reduce corruption. His conclusions in this regard are worth quoting:
“1. Changes in the quality of government, i.e. rules and their enforcement, will take place only if rulers introduce them.
“2. Politicians whose prime aim is to gain office will not advocate reforms unless they believe that by doing so they will improve, or at least not damage, their prospects of acquiring power.
“3. Once in power, rulers, regardless of how they got there—whether by inheritance, force or election—and regardless of what they promised in election campaigns, will not introduce reforms unless they believe that by doing so they will improve, or at least not damage, their chances of retaining or enhancing their power.”[15]
This presents the conundrum of why any pragmatic political actor would ever embark on a serious anti-corruption campaign, whereby he would disadvantage himself vis-ŕ-vis his corrupt competitors.[16] Neild explains how a kind of prisoners’ dilemma operates on political actors. If B is corrupt, A risks losing power if A is not also corrupt. Only if A can expose B’s corruption and publicly denounce him on those grounds is there is a possibility of gain through an anti-corruption initiative. But the possibility of such a gain is dependent on two factors: first the electorate must not be so cynical as to be indifferent to B’s corruption; second, A must be able to establish that he himself is not corrupt; otherwise B, accused of corruption by A, can show that A is equally corrupt, thereby equalizing the damage to both in public esteem.[17] Therefore, political will at the top depends on the existence of a popular will opposed to corruption and the ability of political actors to benefit from that popular opposition.
Public scandals are important opportunities to reduce corruption.[18] Neild’s review of the British experience reveals that repeated scandals over decades are necessary to overcome the resistance of beneficiaries of corruption to take action to stop it.
National or ethnic solidarity is an important consideration. It can be helpful in reducing corruption within a particular nation or group, if corruption is antithetical to cooperation that enhances the welfare of the group. On the other hand, it may further corruption when the group mobilizes to resist what it sees as oppression by another group.[19]
Neild suggests that three social forces created the circumstances under which political advantage historically could be gained by mounting a serious anti-corruption campaign. Those forces were the Enlightenment, Religion, and the Pursuit of Efficiency.[20] According to Neild, the Enlightenment particularly, reinforced by the Protestant Ethic, spawned political philosophies that emphasized enhancing the public good rather than private gain.[21]
Efficiency frequently became a goal in the past in order to
improve the capacity to wage effective military campaigns—offensive or defensive.
More recently, efficiency has become a goal in order to ensure the delivery of
public services while mitigating the burden of taxation. Corruption is a dead
weight on governmental productivity, and reducing or eliminating it improves
efficiency.[22] The
efficiency variable is important if one adopts a Darwinian view of the
evolution of society. In this regard, social evolution favors societies which
can mobilize their resources for war and military domination better because
they are efficient and relatively uncorrupt.
Neild also identifies two mediating factors: the evolution of a professional, elite civil service, and governmental transparency. Transparency cuts two ways, however: “it is helpful if the media and public is critical of corruption and able to call effectively for reform; it is unhelpful if it causes the behavior of a rotten ruler or rulers to be imitated by the people of the country so that corruption and cynicism spreads.”[24]
He identifies the institutional apparatus necessary to eliminate corruption: a well paid military, police and civil service selected by merit; an independent judiciary; laws and economic regulations that inhibit corruption, or at least do not induce it; good audit systems; and a press that is uninhibited in exposing corruption.[25]
An independent, corruption-resistant judiciary is essential
for controlling and reducing public corruption.[26]
International involvement usually increases corruption, because of competition by major powers for natural resources, leading to corrupt deals with the rulers of resource-rich countries in order to obtain concessions. The growth of the post-Cold War arms trade also fuels corruption, as arms suppliers bribe rulers in order to get orders.[29] Neild extends this analysis to construction contracts.[30]
Moreover, the “internationalization of government” has spread corruption because of temptations associated with the dissemination of subsidies from the EU and UN-based international organizations.[31] The tendency is reinforced by jockeying over positions in international organizations.[32] Neild admits, however, that growing international attention to the need to eliminate corruption may prove to be helpful, especially due to public pressure from organizations like Transparency International.[33] Even as the international community announces opposition to corruption and establishes standards for non-corrupt behavior, however, Neild finds it difficult to identify incentives “that would cause corrupt rulers to say to themselves ‘if I do not attack corruption I may be punished so severely that I shall lose power, whereas if I attack it I shall be rewarded so generously that may hold on power will be maintained or enhanced.’”[34]
Neild is pessimistic about the prospects for reducing public
corruption in
Two other factors influence the dynamics of corruption in
developing countries. First, the drug trade produces enormous revenues and can
operate only by corrupting officials. At the same time, “public corruption may
have beneficial effects by liberating enterprise from ill-judged government
regulations and can certainly be consistent with rapid economic growth: the
United States in the Nineteenth Century, Italy and a number of Asian countries
in the second half of the Twentieth Century are examples.”[36]
On the other hand, he observes that if it goes too far, public corruption can
cause economic collapse because it sucks away too many resources from the
government and makes commerce-enhancing law ineffective.[37]
“In those countries, principally in the
Stanford Professor Bernard Black has identified corruption
as the most important barrier to economic development in countries in
transition, focusing on his experience in
Though Black places anti-corruption initiatives at the top of his list of reforms necessary for economic development, he is very general in his suggestions for elements of a successful anti-corruption program. “This must involve an attack on the preconditions for corruption, including underpaid and poorly paid officials and judges; discretionary enforcement authority, the aggregate license and permit burden, oppressive taxation, high tariff barriers to competition, organized crime, and on and on and on, as well as a direct attack on corrupt officials.”[45] Despite their generality, however, Black’s recommendations do sketch some basic directions for governmental policies that reduce corruption. It is particularly important to restructure regulations to reduce the opportunities for bribe seeking and payment, and actually to prosecute, convict and sentence corrupt businessmen and governmental officials.
Political will to make such changes depends, as Neild argues, on popular attitudes toward public corruption. Popular attitudes depend in turn on what ordinary people consider as “right” and “wrong.” Norm theory explains the tendency of most people to adhere to social norms, culturally developed rules that have not—and may never—migrate into law.[46] People adhere to social norms because they fear sanctions ranging from dirty looks and unfavorable gossip to loss of job opportunities and business relations. When norms are long-established, individuals tend to internalize them—to adhere to them automatically without consciously assessing the costs and benefits of compliance or non-compliance.
Social norms may be more influential than law in shaping behavior relative to corruption. If it is customary in a particular society to kick back some of the revenue available from a public contract, if “everyone does it,” such conduct is difficult to end merely because the law says that it is impermissible. Conversely, if relevant norms say that one must never provide favors to a decision maker from whom one hopes to obtain a benefit, corruption in the form of kickbacks is unlikely, and the necessity for criminal investigations and prosecutions will be low.
Norm theory provides the crucial insight that having good laws is insufficient for anti-corruption efforts to succeed; indeed good laws may be of only marginal importance. What matters far more is having cultural norms that operate within the business community, the professional legal community, including the judiciary, and the civil service, and within the political class that sees corruption as wrongful and unethical. It also is essential for the broader society to find corruption to be abhorrent rather than part of the national culture.
Changing norms within a distinct professional or political class or within the society generally is not impossible, but it is difficult and takes time. It certainly takes a sophisticated understanding of existing norms and how they operate, and of the likelihood that alternative strategies with a sharp focus can succeed.
This subsection offers five case studies of successful and
not so successful anti-corruption undertakings, as well as a synthesis of
From two of the case studies, Appendix I reproduces extensive portions of trial transcripts of witness testimony or recorded conversations in order to show how the evidence gathered in even the most effective public corruption cases often requires interpretation by the fact finder in order to draw inferences of illegal conduct.
Giovanni Falcone, born May 18, 1939 in
Falcone grew up in the Magione district, a poor neighborhood
of
Unfortunately, due to relaxed penal codes, most convicted
Mafiosi were released. Regardless, Falcone’s actions started a wave of
anti-Mafia sentiment in
The Watergate investigation, named after the office complex where agents of President Richard Nixon’s 1972 reelection campaign (CRP[49]) broke into the offices of the Democratic National Committee (DNC), resulted in the only resignation of a U.S. President in history, in August, 1974. The Watergate experience shows how high-level opposition to investigation of misdeeds by government officials operates to thwart the efforts by ordinary criminal justice authorities, but also shows the power of the press, of legislative hearings and investigations, and of public opinion to accelerate the momentum of high-profile investigations. This enables an investigation to “follow the money,” and eventually to turn insiders into confidential informants or cooperating witnesses as they are threatened with prosecution themselves.
The investigation began on June 17, 1972, with the arrest of five burglars inside the DNC offices, who initially were processed as ordinary criminal defendants. Police, however, were curious about the notation in a notebook found on defendant James McCord, “Howard Hunt– WH.” McCord, the leader of the break-in team, was Director of Security for CRP. He reported to Howard Hunt, a White House consultant, who, in turn reported to G. Gordon Liddy and Chuck Colson, both Special Counsels to the President. Liddy, Hunt and the burglars were indicted on September 15, 1972.
The burglars had in their possession large sums of cash,
which had originated with Hunt and Liddy, who drew on CRP funds. The FBI traced
the money to
White House staff, and the President himself, scrambled to
raise hundreds of thousands of dollars to buy silence from the arrested
burglars.[52] Public
interest intensified in the money angle after Howard Hunt’s wife was killed in
a plane crash at
Two unknown Washington
Post reporters, Bob Woodward and Carl
Bernstein, supported consistently by the Managing Editor of the Post, Benjamin Bradlee, undertook a
painstaking, two year investigation of the Watergate affair. Their stories
appeared regularly in the Post, which
kept allegations against the Nixon Administration alive in the public mind.[55]
Woodward and Bernstein got tips from confidential sources indicating that money
found on the burglars was linked to CRP through a bank account in
On May 18, 1973, President Nixon yielded to public and congressional pressure fueled by the Woodward and Bernstein stories and agreed to appoint a Special Prosecutor, free of supervision by the Justice Department, Archibald Cox, a distinguished law professor from Harvard, and mentor of Attorney General Elliott Richardson, was appointed. Cox called top aides to the President before the federal grand jury in the spring of 1973. Most of them lied about the White House involvement in the break-in and other illegal activities, but the experience and the threat of prosecution began to dissuade more and more of them from participating further in the cover-up, and raised temptations to go over to the Special Prosecutor’s side and betray the President. [58]
Ultimately, the President was brought down by audio recordings of his private conversations, revealing that he orchestrated the Watergate cover-up and by the probability of impeachment by the House of Representatives and conviction by the Senate. A recording widely believed to show that the President had advance knowledge of the break-in itself, was mysteriously erased, under circumstances suggesting that the President erased it himself.[59] The recordings had been made secretly at the direction of the President, apparently for archival purposes. Their existence was discovered through testimony before a Congressional committee by Alexander Butterworth, one of the President’s top personal aides, one of a handful of people who knew about the White House taping system.[60]
The President ordered the Attorney General to fire Cox on October 20, 1973 after he pressed too hard for the tapes and for other evidence in possession of the White House that the President claimed was privileged.[61] The firing, known as the “Saturday Night Massacre,” was accompanied by FBI agents taking control of the facilities and files of the Special Prosecutor. Attorney General Richardson and Deputy Attorney General William Ruckelshaus resigned rather than carrying out the President’s orders to fire Cox. Robert Bork, later a nominee to the Supreme Court and then the number three person at the Justice Department, agreed to become Acting Attorney General and to carry out the President’s orders. Another special prosecutor was appointed and continued to insist on disclosure of the tapes, resulting in a Supreme Court decision that the tapes must be disclosed,[62] with which the President complied.
As the investigation proceeded, several CRP executives and high-level White House aides were prosecuted and convicted of obstruction of justice, including the Attorney General, the White House Counsel, the Acting FBI Director, the Chairman of CRP and former Secretary of Commerce, the President’s Chief of Staff,[63] and his Chief Domestic Adviser.[64] In indicting seven of these individuals, on March 1, 1974 the federal grand jury named the President as an unindicted co-conspirator.
The success of the Watergate investigation shows the interaction of many strands of a commitment against official wrongdoing. If the CIA director had not refused to interfere in the FBI’s investigation, if Woodward and Bernstein had not pursued their investigation and received confidential tips from dozens of knowledgeable individuals, if Judge Sirica had not succeeded in “breaking” McCord and Hunt, if the Democratically controlled Congress had not aggressively pursued hearings on Presidential involvement in Watergate, if the President had destroyed the tapes, or refused to accede to the Supreme Court’s decision, the investigation would have run aground, at least before the President was driven from office.
The FBI's 1980's "Operation Greylord" resulted in the
indictment of 17 judges, 48 lawyers, 8 policemen, 10 deputy sheriffs, 8 court
officials and one state legislator in
Judge Thomas J. Maloney was convicted on April 16, 1993 of fixing four cases, three including murder indictments, and for attempts to persuade a witness not to cooperate with the FBI.[66] Former associates of the judge, who served as "bag men" for passing bribes to the judge from two lawyers, later became key cooperating witnesses against Judge Maloney.
The role of one of these cooperating witnesses in the investigation was popularized in Scott Turow's 1999 novel, Personal Injuries, in which the protagonist is a successful personal injury lawyer who bribes judges, gets caught, and agrees with the FBI to wear an eavesdropping device as he continues the bribery. Turow was the lead Assistant U.S. Attorney in prosecuting judges caught in the Greylord scandal. Cooperating witness Robert Cooley wrote a book of his own: When Corruption Was King.[67] The bribe charged in the Maloney indictment occurred after Cooley was approached by a Democratic alderman and ward secretary who wanted a "guaranteed" not-guilty verdict for a hit man for organized crime.[68]
The FBI already had been suspicious of Judge Maloney and had agents monitoring trials in which bribes were taken. Early investigations showed that Maloney's expenditures could not be supported by his legitimate income. After the Greylord Investigation obtained evidence against the judge, his trial lasted more than six weeks, involved more than forty witnesses, historical testimony, undercover audio and video recordings, documentary proof and financial analysis.[69]
Among other things, the FBI told Cooley to file a fake
lawsuit to create an opportunity for the judge assigned the case to accept a
bribe.[70]
An FBI special agent from
The United States Court of Appeals for the Seventh Circuit approved the investigative techniques used in Operation Greylord in United States v. Murphy,[74] including the use of "bait" money offered by cooperating witnesses, and the use of phantom cases. It is a practical necessity, the court observed, to use undercover agents and cooperating witnesses who take part in bribe transactions. Without them no victims are likely to come forward and testify, even if they know about the bribe.[75]
The fruits of the Operation Greylord investigation can be appreciated by quoting the trial judge in the Shields case. The electronic surveillance was crucial in the cases:
“In the final analysis, it was Shields' own words which convicted him. The evidence disclosed that on the morning of September 2, 1988, Cooley contacted DeLeo [the judge’s co-defendant and bag man] to inform him that he had been served with an emergency motion by the defense in the Nichols case seeking release of the partnership funds which Cooley had succeeding in freezing. The motion was noticed for hearing later that morning. Cooley told DeLeo that if the motion were denied and the money not released, the defense would be forced to settle the case.” (See Appendix I for surveillance transcripts.)
In the end, Cooley put himself in a witness protection
program of his own design for a while, but could not resist the temptation to
make phone calls and travel to
The FBI's ABSCAM investigation began in 1978 and resulted in
the conviction of a United States Senator, six members of the United States
House of Representatives, the mayor of
The investigation proceeded through a bogus business called
"Abdul Enterprises, Ltd." FBI undercover agents posed as Middle
Eastern businessmen who offered money in exchange for favors to a fake Arab
sheik named Abdul, who wanted to purchase asylum in the
The eventual defendants were attracted by claims that the
imaginary sheik contemplated large projects, such as a hotel in
The ABSCAM operatives, once they had evidence of corruption of certain public officials, sought to target others. (See Appendix I for surveillance transcripts.)
The success of the ABSCAM investigation shows the essentiality of audio and video recording, the utility of a sophisticated cover story, and complicated, sustained relationships among undercover law enforcement personnel, cooperating witnesses, corrupt intermediaries and targeted public officials themselves.
Operation Silver Shovel occurred from 1992 to 1995 and
resulted in the conviction of 18 public officials and co-conspirators,
including six then current or former
John Christopher was the owner of several excavation and trucking companies
in
The defendants routinely accepted cash payments from either Christopher or the undercover Agent and in return channeled work to a sham Minority Business Enterprise. A city commissioner accepted a cash bribe in exchange for placing the undercover Agent's company on the city's snow removal work list and concealed the fact that the undercover Agent's company was a sham Minority Business Enterprise (MBE).
An Alderman agreed to help the company find work, in return for a $10,000 contribution to his campaign.[82] When Christopher said that many of the names of those "contributing" would belong to dead people, the city official replied, "the more dead the better." In January 1995, the official accepted the $10,000 contribution, along with a list of 15 fictitious contributors. That same day, Christopher's business was placed on the city's roster of minority snow removal contractors.[83]
An Alderman accepted cash bribes totaling over $36,000 in exchange for using his political power to benefit Christopher and the undercover Agent. This official interceded with several elected officials to assist Christopher's company for favors such as: getting Christopher's company falsely certified by the city as a woman-owned contracting company so that it could receive woman- owned set-aside business; obtaining a city liquor license for a proposed liquor store site to be operated by the undercover Agent; and gaining the support of several city officials for their assistance for various projects operated by Christopher and the Agent's company.
Christopher and an Alderman met in a restaurant in 1993, during which time Christopher gave the official $3,000 in small bills and further discussed aspects of Christopher's business.
Christopher told the associate of a former city commissioner that he was willing to pay a percentage of the value of an excavation subcontract in exchange for the official's influence in helping Christopher's company obtain the subcontract work. Christopher then paid the men many times during the next several months, once giving one of the men a cigarette pack containing $4,000.[84]
“On May 4, 1994, Fuller met with Blassingame [a middleman]
and Agent Sofia at Marche Restaurant in
Some of the targets were suspicious:
“On May 10, 1994, Fuller, Blassingame and Christopher met at Chez Paul Restaurant to discuss potential problems with the permit due to Marlboro's dumping history. Nine days later on May 19, 1994, Christopher, Fuller and Blassingame again met at Chez Paul, this time without Agent Sofia. There, Fuller expressed his discomfort with Agent Sofia: ‘I don't even know this man. . . . A man becomes very generous and I get nervous . . . . Hey, get very nervous.’ Fuller also told Christopher that “I'm gonna get you it, help you get a permit. After that, I'm through.”
“On June 3, 1994, Blassingame called Agent Sofia for an
advance of $2,000 as ‘a little financial help to hold me over while I'm working
on this stuff.’ Agent
Convictions for public corruption in the
The first pattern relies heavily upon the actions of the
person who has been offered a bribe. The briber approaches the public official
with an offer, to which the official responds in a non-committal manner.[86]
Immediately following the encounter, the official reports it to a law
enforcement officer.[87]
The official then contacts the original corruptor and arranges for a meeting at
which the official wears a wire.[88]
The official then proceeds to participate in the corruption scheme until it
nears completion, at which point the authorities intervene and apprehend the
criminals.[89]
Whenever the official meets the briber, their meetings are recorded by audio,
video, or both.[90] These
recordings serve as the primary evidence at trial, and are supplemented by the
testimony of the official and a variety of other evidence that corroborates
what is in the recordings.[91]
For example, evidence of recording the sale of an apartment can be used to
verify testimony that the apartment was bought at an inflated price in order to
buy off an official.[92]
This same sequence of events can also lead to the conviction of an official who
is soliciting a bribe. In
In this pattern the official is motivated to report the bribe offer by one of two things. One, the official morally objects to the attempt at corruption and agrees to help in the investigation in order to rid the system of it. Two, the official is motivated by fear. The fear can come from the unknown consequences of having an illegal relationship with unsavory characters, buttressed by a fear of the legal consequences that could one day await him. In none of these cases is witness protection an issue. This is probably so because in none of these instances were the stakes so high that the criminal would have an incentive to threaten the official. Generally, those who have been convicted have only faced a couple of years in prison.[95] In United States v. Dansker, the bribers did threaten to publicize damaging information about the official’s administration, but this did not deter the mayor from continuing to assist in the investigation.[96] These threats may be less powerful than usual because the good press the official would get from his/her involvement with the investigation would likely offset any bad press created by the bribers’ accusation.
The second pattern for unearthing corruption relies upon a cooperating witness (“CW”) who is in trouble with the law. The CW is either previously aware,[97] or becomes aware of an attempt at bribery.[98] The CW agrees to continue his relationship with the corrupt person under the supervision of the investigators.[99] The target of the investigation is recorded either by audio, video, or both while participating in corrupt behavior and transactions.[100] Once the target has sufficiently tied his own noose, then the arrest is made.[101]
The CW’s primary motivation is to alleviate his/her own legal troubles. Sometimes this comes in the form of immunity,[102] while other times it is in the form of reduced sentences.[103] One characteristic distinct to this pattern is the desperation of the CW. Since the CW is already in trouble, he/she risks less by going to the police. The increase in danger that the CW faces may oftentimes be outweighed by the benefits received from the government.
The third pattern is based upon an active investigation or
“sting” operation into corruption by a law enforcement agency. This can be a
large, coordinated investigation such as ABSCAM,[104]
or a smaller investigation aimed at a specific government activity.[105]
The issue of entrapment may become a problem in situations like ABSCAM, but so
long as officials are not targeted and they become involved by their own will,
then the operation is legal.[106]
One common feature of all three of these patterns is the role that audits of government funds and private finances can play in initiating these investigations. Suspicion is created by the audit, and then followed up by an investigation into the parties and dealings connected to the money.[107] If nothing else, this forces the criminals to operate in a more complex manner, and increases the number of opportunities for them to make a mistake.
A synthesis of the characteristics of the investigations and
successful prosecutions in the case studies, supplemented by discussions with
An investigator cannot successfully investigate and a prosecutor cannot successfully prosecute that which he or she does not understand. A threshold requirement for any anti-corruption investigation is to master the informal networks in which corruption occurs, including the formal relationships and authorities of the participants, the content of the laws that apply to their dealings, less formal friendship and family relationships, when and how they interact with each other and with outsiders, and the language and expressions that they use. Rarely within such networks is everyone corrupt. Some actively participate in illegal conduct; some oppose the conduct; some simply turn away. Gradually, as an investigator builds an understanding of the network, the identity of suspects crystallizes.
Investigators and prosecutors almost always are outsiders to the corruption networks they investigate and prosecute. They need insiders to educate them on who is who and who does what. A common first step in any anti-corruption investigation is to build relationships with confidential informants who have the requisite knowledge. Sometimes such persons come forward through hotlines or direct telephone, email or visits. Otherwise they must be approached by the investigative team in ways that do not scare them off. Many confidential informants are paid for their information; others are motivated by moral outrage at the corrupt conduct they witness; others are motivated by internal rivalries with those they accuse of corruption. Because of the diverse and not always-apparent motivations of potential informants, good investigators rarely rely on a single informant, but instead develop a set of informants whose information can be checked against the information received from other sources. Some informants develop into cooperating witnesses; the cooperation of others is never revealed.
Good anti-corruption investigation includes routine or ad-hoc monitoring of the relationship between the apparent wealth of public officials and known legitimate sources of income. A public official who drives expensive cars, lives in opulent homes, or takes high-priced vacations, beyond what could be afforded on the official’s salary and other legitimate sources or income or family wealth, are natural targets for further investigation. Access to financial transactions by such potential targets through bank-account records or otherwise is helpful.
An important difference exists between criminal intelligence activities and investigations aimed at successful prosecution. The former is intended to develop an understanding by law enforcement personnel of corruption patterns and networks. The latter is intended to result in convictions of wrongdoers. Both are necessary. As criminal intelligence activities identify promising targets, investigators and prosecutors must shift their focus to the development of admissible evidence against wrongdoers. Confidential informants must be supplemented by undercover agents and cooperating witnesses who will testify. The elements of specific crimes must form a template for collection of evidence. Investigators and prosecutors must conduct themselves so that they do not compromise the admissibility or persuasiveness of useful evidence by violating laws on eavesdropping or entrapment.
A distinction must be drawn between testifying witnesses and
"informants." Most informants are “confidential informants” (“CIs” in
Informants may be recruited by spreading money around. Cooperating witnesses generally need some other form of motivation, such as being confronted with prosecution themselves, or having been betrayed by those they accuse. Rare is the successful investigation and prosecution that does not turn on some kind of special vulnerability of cooperating witnesses.
Typically,
In occasional cases, potential witnesses come forward
because they are afraid for their physical safety and want protection from law
enforcement personnel or because their consciences no longer permit them to
remain silent, as in the case of lawyer Robert Cooley in the Greylord
investigation of
The credibility of cooperating witnesses at trial is an important consideration. Payments to cooperating witnesses will surely be used by the defense to attack their credibility at trial. Similarly, personal antagonism toward those they accuse, or expectations of favorable consideration by prosecutors also can undermine the effectiveness of the evidence they give. Judicial fact finders usually are unwilling to convict based on testimony by such witnesses alone. They require some form of corroboration, which can be achieved if a large number of cooperating witnesses testify, if good forensic evidence is available, such as financial records, or most commonly by evidence in the form of audio or video recordings of illegal conduct by others. Cooperating witnesses often assist in obtaining such electronic evidence by wearing “wires.”
Witness protection is an important tool in anti-corruption
investigations, depending on the perception that those turning against corrupt
officials will face physical threats to themselves or their families. But
witness protection is difficult to administer, even in the
When cooperating witnesses live in tightly-knit communities, protecting them may require relocating them to a foreign country. Offers of cross-border relocation as witness-protection measures depend on international cooperation; states where witnesses are to be relocated must be willing to grant visas and citizenship or long-term residence permission. Getting another country to take them is a huge problem, particularly if they have been involved in a criminal enterprise. Current restrictions on immigration because of terrorism concerns and growing xenophobia exacerbate the problem.
Overly attractive witness-protection opportunities, however,
especially relocation possibilities, may induce perjured testimony by
individuals desiring a sure way to emigrate to the
Finally, and most importantly, witness protection programs are enormously expensive. Even when they do not involve relocation, but merely provide enhanced local security for witnesses, they require around the clock security personnel. This equates to at least a half dozen full time equivalent positions of the protecting agency. Witness protection involving relocation involves significant expenditures for travel, subsidy of living expenses, and possibly the purchase or rental of a dwelling for the witness. These expenses are ongoing.
Fact finders in
Wiretaps, wires and bugs are not silver bullets, however. Audio and video recordings often are difficult to interpret. Speakers may speak indistinctly against background noise. Even when their words and sentences can be discerned, they may be open to varying interpretations. People talk in slang and interrupt each other before thoughts are completed; people do not dictate perfect sentences and paragraphs over the telephone or in conversation. Electronic surveillance is far more useful to collect evidence of ongoing criminal enterprises, when the participants can be caught in the act of offering or accepting a bribe, than to obtain evidence of past crimes. Sometimes, informants will try to induce suspects to talk about past events on tape, but it rarely works. The transcripts of the electronic surveillance from the case studies quoted in Appendix I show how evasive the recipients of the bribes were and how forcefully the undercover agents had to coax them into saying something or doing something incriminating.
Electronic surveillance is also labor intensive. Someone has to listen to every conversation. It takes as many minutes to listen to a conversation as it did for the conversation to occur. Producing transcripts is even more time-consuming, and if the quality of the recording is not good, it can take a very long time indeed. Often, two listeners will disagree on what they hear; one may hear something clear as a bell while the other hears only noise.
Moreover, with the advent of audio and video editing software, usable on any small computer, the reliability of recordings obtained through surveillance easily may be drawn into question. Professionalism and rigorous chain-of-custody are essential.
Despite the difficulties inherent in electronic surveillance, it is extremely difficult to get a conviction in a corruption case without it. Electronic surveillance is most effective if it is deployed against specific targets and classes of transactions. It is more likely to be successful if deployed in ongoing criminal enterprises, and it must be narrowly targeted to make the workload of processing the results tolerable. In addition, of course, as in all of the case studies, electronic surveillance cannot occur unless undercover agents and/or cooperating witnesses participate in obtaining it and are available to authenticate it at trial.
As the preceding axioms suggest, successful anti-corruption investigations require effective design and execution. Confidential informants and cooperating witnesses cannot do it on their own. Success depends on undercover agents and case managers. Undercover agents are almost always more skilled and persistent than cooperating witnesses in steering conversations with suspects that produce admissible and convincing evidence on video or audio recordings. Undercover agents are more likely than cooperating witnesses to place themselves in physical danger. They are likely to be more believable at trial.
Undercover agents can be effective only, however, if they
share ethnic and socio-economic characteristics of targets, or have a cover
story that explains their interest in dealing with the targets. Ethnicity often
binds criminal enterprises together, and someone of a different ethnicity or
language background stands out like a sore thumb, and is a target for suspicion
and mistrust. Infiltration of the Ku Klux Klan was possible only because FBI
agents with Southern backgrounds were available to work undercover. Success in
the Silver Shovel investigation in
In some cases it may be possible or necessary to introduce an undercover agent of a different ethnicity. In the ABSCAM investigation, for example, the imaginary sheik was presented as an Arab while the defendants were Americans of various non-Arab nationalities. The use of such an undercover agent effectively depends upon the nature of the cover story for the “sting,” if one is used. For example a sting premised on penetrating human trafficking rings might plausibly involve an undercover agent from a region other than the region targeted by the investigation if the other region is supposed to be part of the supply chain of human victims of the trafficking—either the source or destination.
Investigators must have the requisite expertise and must not depend on targets or friends of targets for job tenure or resources.
Public corruption investigations are more challenging than investigating street crime. Some members of an effective investigation team must be good sociologists to understand how corruption networks operate through extra-legal channels. Others must be empathetic enough to build trust of confidential informants and cooperating witnesses. Others must understand the technology of eavesdropping equipment. Others must know the law. Some of them must have the discipline, acting ability, courage, and credibility to operate undercover and to testify about it afterwards. In many investigations, accounting knowledge is necessary. Auditors and accountants are important, but the number of cases in which they are needed varies with the sophistication of the criminal enterprise. It does not take much training to confront someone making €10,000 a year with the fact that he has €1 million in the bank.
Rarely are all of these skills found in a single investigator; they usually are possessed by specialists comprising a multi-investigator team. Assembling and managing such a team requires good administrative skills, knowledge of best practices in anti-corruption investigations and the kinds of leadership qualities that earn a team leader the respect of team members.
But skill is not enough. Investigators also must be brave
enough to endure actual or perceived threats to their future economic welfare
and to their own physical safety and that of their families. Giovanni Falcone
was, after all, killed. They must have sufficient character to resist offers of
substantial amounts of money from those they are investigating. Their loyalties
must be to the investigation and not to the targets. Resources for the
investigation must not be controlled by those being investigated.
Prosecutors must have the requisite skills and not depend on targets or friends of targets for job tenure or resources. Anti-corruption prosecutors and investigators must work closely together from the beginning to the end of an anti-corruption investigation. Any idea that investigative agencies work on their own to develop a complete package to be delivered to a separate prosecutorial agency at the end of the investigation is fatally flawed. Prosecutors must provide investigators with guidance throughout an investigation on what can obtain a conviction. Both investigators and prosecutors must collaborate on selecting lower level targets to be threatened with prosecution in order to recruit them as cooperating witnesses.
Once an investigation is complete, some members of the prosecution team must be good enough trial lawyers to present the available evidence in a way that will convince a judicial factfinder to convict.
Prosecutors must have the same levels of persistence, bravery, and incorruptibility as investigators. A perfect investigative team is worthless if the prosecutors to whom they deliver their investigative results compromise the prosecution by not pursuing it aggressively or by leaking the results to the targets.
And, of course, none of this does any good unless a competent, courageous and honest judiciary will apply the law to the facts uncovered by the investigation and convict when conviction is warranted. Judicial forums deciding the case must not depend on targets or friends of targets for job tenure or resources.
All of the case studies show that an outside investigative,
prosecutorial and judicial force was necessary for success. In the
It is hard to imagine that the Philadelphia Police
Department would have successfully investigated the President of the
Philadelphia City Council, or that the corrupt state judiciary in
It is hard to imagine that the Watergate Investigation would have been successful if it had been left entirely to President Nixon, acting FBI Director Gray, and Acting Attorney General Kleindeinst. It was only because of the independence and the “foreignness” of Special Prosecutors Cox and Jaworski, the independence of the Washington Post, and the President’s democratic political antagonists in the Congress, that the investigation succeeded—and of course the professionalism of the FBI, including the decision by its Deputy Director to betray the Attorney General’s and President’s effort to thwart the investigation. Italian investigative magistrate Falcone, though formally part of the Ministry of Justice, attained independence because he was astute in building public support for himself personally.
It is extremely difficult to provide the conditions identified in this axiom and the two preceding ones absent a culture of professionalism, which takes a long time to establish, and political will at the top. The need for independent professionalism gives rise to the temptation to bring in outsiders to investigate, prosecute and judge, but outsiders usually lack the social and cultural connections to make an investigation successful, and they also the lack the legitimacy that is necessary to build public support.
Success in rooting out public corruption depends on political will. Political will, in turn depends on public support. Public support depends on press and media channels to inform the public about instances of corruption and about efforts to hold accountable those who engage in it. In other words, investigative journalism is an important part of the anti-corruption arsenal. In the Watergate investigation, the Washington Post stories built public support for the Special Prosecutor, even as President Nixon used all the powers of his office to undermine the investigation.
Investigative reporters also have access to sources not available directly to criminal justice authorities; they give informants another market for their information. If the media can protect its sources, it may be more attractive than regular law enforcement channels. It is not clear where else FBI number two man Mark Felt could have gone, except to the press. On the other hand, when informants go to reporters, they may be depriving law enforcement of the same sources. Moreover, investigative journalism is time-consuming and expensive. If it is done right and it really exposes something that would otherwise not be exposed, it is useful. But law enforcement has to follow up, or the exercise is fruitless, frustrating and potentially dangerous for reporter and source.
Anti-corruption teams cannot assemble the evidence necessary without tools for supplementing their human resources. State-of-the art eavesdropping equipment is essential. Criminal procedure must permit them to engage in eavesdropping, to deal with confidential informants and cooperating witnesses. They must be able to subpoena financial records. They must be able to execute search warrants before targets have notice and the opportunity to hide evidence. Evidence obtained through undercover means must be admissible at trial as long as the procedural requirements are followed.
In any society with officially reported 60% unemployment and
little street crime, a sizeable underground economy must be thriving. Any
underground economy thrives on corruption, at least of a petty sort. Such
corruption gets embedded in the culture. A broad anti-corruption campaign in
Kosovo premised on
This section takes the theory and experience from parts II
and III, and considers how they could be applied to corruption in Kosovo,
recognizing that conditions in Kosovo distinguish it in significant ways from
conditions in the
Consideration of the Neild framework[109] instills pessimism about the prospects for reducing or eliminating public corruption in Kosovo. His military-efficiency factor does not oppose corruption; it leads certain parts of the Kosovar public to embrace it. Kosovo’s progress toward independence occurred because of the KLA, which was not an efficient military machine, but instead was financed, organized, and operated in an informal manner in which corruption is widely believed to have played a necessary role. Most close Kosovar observers of the KLA criticize KLA financers for enriching themselves personally (whether or not they actually did so), but at the same time shrug and say they suppose that was a necessary price of raising money, at least some of which was put to effective use in arming and equipping the KLA.
Kosovo’s long history of resisting “oppression” by “occupying forces”—the Ottomans, then the Serbs, and then UNMIK—encourage a spirit of defiance, secrecy, and non-compliance with formal norms, including formal norms of honest government. In this context, reliance on informal family and friendship connections in order to survive and prosper also increases the reluctance to turn anybody in. Ratting out somebody in Kosovar society means betraying the bonds which have permitted everyone to survive.
In addition, there is a general mistrust of government, based on a belief that it is ineffective, not motivated by improving the lives of the ordinary people, and thoroughly corrupt. This leads to a preference for “informal” private enterprise, and the valid belief that some forms of corruption are necessary to provide space for informal entrepreneurship.
The international embargo on the former
Although facts are hard to come by, it is widely believed
that Kosovo is an important hub for drug trafficking tying together demand in
Western Europe and the
Kosovo also is believed by some outsiders to be a hub of
human trafficking, some of it aimed at supporting demand by internationals
stationed in Kosovo, and some of it transit traffic between
Kosovo, unlike
oil-rich nations, may less subject to internationally procured corruption aimed
at obtaining “advantageous access,” to use Neild’s term. Kosovo is not entirely
free from this threat, however, because of the belief that its large lignite
resources and potential as a supplier of electricity to
While the Neild framework provides little hope for short-term effective anti-corruption efforts in Kosovo, two of his observations may light a pathway. First, his emphasis on political self-seeking pragmatism suggests that a charismatic new political face might see the possibility of making a career and gaining power from a highly visible, results-oriented anti-corruption campaign. Such a campaign might resonate with the general public. In other words, the Falcone case study might be applied to Kosovo with good results. The possibility depends, of course, on such an ambitious and charismatic political figure emerging from the Kosovo population to lead an investigative and prosecution initiative.
Although the
Public resonance depends on whether the center of gravity of public opinion can be made to believe that the daily lives of most people would be better if corruption were lessened. One affirmative possibility is the belief that job creation, economic progress, and the social welfare safety net would be better if the government were less corrupt. In other words, an effective political entrepreneur might be able to convince the general public that the reason they do not have jobs, and cannot get good public service, or adequate pensions or healthcare is because old-style political leaders are stealing the resources, which otherwise would be adequate to provide what the public wants.
Balanced against this possibility is the countervailing belief by many in Kosovar society that they depend upon corruption in order to advance their own individual and family interests. As an effective anti-corruption effort takes shape, it is likely that Kosovo, like most other societies, would move from general public support for an anti-corruption campaign into resistance to any change in the status quo by concentrated interests with vested advantage in current styles of corruption. In other words, the fate of any anti-corruption campaign would require artful politics and a kind of high-wire balancing act to get something done before the steam of broad public support is overcome by the cold water of vested interests, which currently include most of the political elites.
In order to be successful, any Kosovo anti-corruption effort needs (1) a political will to fight corruption; (2) a willingness of victims to report corruption; (3) competent, honest, and courageous prosecution and investigation resources; and (4) a competent, honest, and courageous judiciary. Parts one and two can be grouped together and considered essential. Both of these primary conditions must be present for any anti-corruption campaign to be at all effective. Once political will and a willingness of victims to report corruption gains momentum, it then becomes possible for the political establishment to develop parts three and four.
The first precondition, political will, is broad in scope and refers to the credible intent of party leaders, public office holders, candidates for public office, civil society watchdogs, and journalists alike to attack corruption. Not everyone in government or civil society must have the political will to attack corruption, but some of them must, and those having the will must occupy strategic positions of power. The necessity of political will can be illustrated through examples. Imagine an ambitious young Kosovar prosecutor hot on the trail of one of Kosovo’s better known businessman’s company’s links with drug smuggling. He collects all the right evidence to create a slam-dunk case against the company, only to be tapped on the shoulder at the last minute by his boss and reassigned to another case. Although the prosecutor’s efforts demonstrate a flicker of political will, it is quickly and easily extinguished. Or, consider a Kosovar investigative journalist who is proud of his recently completed story on collusion among bidders in Kosovo’s ongoing privatization process. He hands his well-sourced and well-documented story to his editor. The editor reacts negatively because one of the bidders colluding in the privatization process is a good friend of the editor. The story gets shelved as a result. The hypothetical prosecutor and journalist lack supporters in strategic positions of power.
Mobilizing political will requires exploring the interplay among the various actors who may have—or lack—political will, and their dependence and effect on public resolve. The objective of any anti-corruption campaign must be to build political will among a small number of political actors and to trigger a positive spiral of influence among themselves and the remaining political actors. In fact, the synergy that is created by the sincere efforts of just two influential political actors may be enough to create a domino effect among other relevant political actors. Consistent investigative journalism and press reports on corruption coupled with a sincere anti-corruption platform in the campaign of a legitimate candidate for prime minister would put pressure on those already in power to clean up their act.
In the complete absence of political will, the public’s resolve is the only thing that can be counted on to bolster anti-corruption energies. A public focused on corruption serves to create or otherwise intensify political will among political actors because the behavior of political candidates and office holders is driven by what they think will get them elected or reelected.[110] As long as the public opposes corruption, a political candidate who gets the public to believe that he or she will fight corruption effectively will gain support.
Attitudes of the international community are key to the political-will equation. Even if public support for real anti-corruption efforts exist, and even if Kosovar political entrepreneurs emerge who believe they can advance their careers by successfully ferreting out corruption, the resulting political will may be for naught if the international community continues to exercise substantial control over the legal system and the international decision makers do not have the political will. There is substantial reason to believe that crucial actors in the international civil administration in Kosovo have not seen it in their interests for public corruption to be exposed and prosecuted. They have other priorities, promoting human rights and interethnic tolerance, avoiding an outbreak of violence, and steering public opinion in geopolitical directions sought by the international community. To achieve any of their goals, the internationals need cooperation by effective Kosovar political leaders. They fear that any serious anti-corruption campaign would lead to the top. Whether or not this is true, the fear leads them to under fund the anti-corruption resources that exist, and to thwart anti-corruption investigations that appear likely to lead somewhere significant. In their view, political corruption in Kosovo is not a priority problem. At worst, it is a slowly developing cancer that will cause disaster long after they have rotated to other positions in their professional lives. Unlike the threat of interethnic violence or political chaos, it is not an immediate threat to short term success or to their careers.
Worse than that, the few high profile corruption cases that have come to light have involved, not senior Kosovar political leaders, but senior officials of the UN civil administration. So a contributing factor to the lack of political will is that a significant part of the civil administration—the international civil administration—in Kosovo apparently has a culture of corruption of its own.
The second precondition recognizes the importance of victims
of corruption being willing to report corruption. All the political will in the
world amounts to nothing if no participant is willing to report wrongdoing. Not
all participant reports are entirely voluntary, of course. The case studies in
§ III. B. show that, in most of the high profile
When victims of corruption analyze whether they will choose to report wrongdoing, how they believe their grievances will be handled often tips the scales in favor or against reporting the problem. If victims detect apathy among political actors in the fight against corruption, they will be deeply discouraged from speaking up and threatening the status quo. They risk their future in exchange for no benefit either to themselves or their society.
Both a willingness by victims to report corruption and political will are necessary in the creation and support of competent, honest, and courageous investigation and prosecution resources, the third part of the anti-corruption platform. In the absence of either, even the most dedicated, competent, and resourceful investigator or prosecutor will become frustrated and eventually give up.
Applying axiom number III.C.5 leads to the following conclusions regarding the
third precondition: Investigative resources should include a Kosovar version of
the
The establishment of a special anti-corruption prosecutor for Kosovo could be useful. Such an institution could be insulated from those centers of political power that lack the political will—as long as the institution could be linked to and supported by some center of political power that has the political will. Designation of a special prosecution force could facilitate recruitment of individual members of the investigation and prosecution teams that have the requisite skills and personal qualities. A special prosecutor could achieve the prominence and public respect necessary to make him or her an influential political force in building public support. A special prosecutor could not be effective, however, unless the office is given the resources and the legal authority to proceed independently. “Watchdogs,” and “fact-finders,” are mere window dressing if they depend on the regular investigative and prosecutorial authorities to follow up. Insisting that accusations of corruption be handled through regular institutional channels is a recipe for inaction.
The effectiveness of adequate investigative and prosecutorial institutions is supplemented through press reports, NGO activities, and political-party initiatives. Achieving the goal of building political will and popular support requires the concerted action by all elements of political and civil society. Without the threat of prosecution and legal punishment, however, anti-corruption efforts are about as intimidating as a pit-bull without teeth. This is especially true for businessmen in private industry and politicians in Kosovo’s current closed-list system of elections who can rarely be harmed by the decision of Kosovo’s citizens to change their vote.
The fourth precondition: the necessity of a competent, honest, and courageous judiciary is the final link to an effective anti-corruption effort. Imagine a Kosovo that has turned the corner on its anti-corruption efforts. A strong political will is putting heat on corrupt politicians to become more ethical and transparent. Government audit reports indicate several ministries have misappropriated funds over the past fiscal year. Picking up where the audit reports leave off, a Kosovar FBI investigates the ministries rigorously. They wiretap phones, develop relationships with informants, wire undercover agents and confidential informants, request search warrants, and subpoena the personal financial information of those at the top of the applicable ministries. Once enough evidence is gathered to make a case, independent prosecutors charge and prosecute the accused with their crimes. Judges, accepting bribes from the accused, or merely acting out personal and political loyalties, disallow key evidence and the targets are declared not guilty. Such a system would produce no more success than a system in which none of the preconditions are present. Without a competent, honest, and courageous judiciary, anti-corruption efforts are almost entirely in vain.
Judicial reform takes time and perseverance because it requires inculcating a new professional culture for the judiciary, which, in turn requires significant turnover in personnel. Establishing special judicial bodies can sidestep some of the challenges in reforming the entire judiciary, but special judicial bodies, especially if they utilize international judges, can face legitimacy problems. Any opportunity for those investigated to claim that they are being targeted for political reasons by outside forces undermines the requisite political will and popular support for punishing them.
Development of any of the preconditions for a successful anti-corruption campaign in Kosovo suffers from a lack of precision and sense of priority in addressing different types of corruption.
“Corruption” is a vague concept that has been overused, skewed, and distorted over time. Differing cultural perceptions of what is and is not corrupt behavior exacerbates confusion surrounding the word. Robert Neild’s definition, quoted earlier, is a good starting point: “The breaking by public persons, for the sake of private financial or political gain, of the rules of conduct in public affairs prevailing in a society in the period under consideration.”[111] This specific definition successfully molds broader definitions which simply describe corruption as “immoral behavior” into a definition that is more useful operationally. In addition to embracing Neild’s definition, it is crucial for Kosovo to recognize that they have limited anti-corruption resources; resources which need to be utilized wisely. For this reason, it is imperative that those wishing to eradicate corruption’s corrosive effects learn which corrupt practices are hurting society the most, and then prioritize their anti-corruption efforts in a way that eliminates the most damaging corrupt practices first.
Corruption is paradoxical in that it runs rampant in many sectors of even the most advanced societies, and yet is a major factor in crippling nations’ political and economic progress. The paradox is explained by the simple realization that not all corruption is created equal: lying about a rival political candidate’s position on an issue in order to attack a straw man is corrupt and damaging to democratic politics, but not as corrupt and damaging as buying votes. Buying votes is less corrupt and damaging than having one’s political rival assassinated. Yet one can correctly claim to be fighting political “corruption” by attacking the least damaging form.
This section distinguishes among different kinds of corruption particularly relevant to Kosovo. Going in order from less harmful to more harmful, it begins with the effect of a gray economy history, continuing with tax evasion, bribery, procurement kickbacks and partnerships, and embezzlement in order to identify the most debilitating forms of corruption.
If one accepts a definition of corruption in which anyone who
breaks the law for personal gain is corrupt, then everyone involved in Kosovo’s
pervasive and historic gray economy is corrupt. “Gray economy” in this context
refers to the flow of goods through illegitimate channels. The channels may be
illegitimate because they are unauthorized by the manufacturer or producer.[112]
They may be illegitimate because they bypass customs duties, sales taxes, and
municipal licensing requirements. Establishing and maintaining such channels
often involves bribing customs agents and other government employees.
Cigarettes and alcohol are commonly mentioned as products that are often
smuggled into other countries—including Kosovo. Other products such as jewelry,
electronics, and prescription medicine are less noted, but nonetheless frequently
smuggled as well due to their homogeneity in quality, but disparity in price
among various countries.
In understanding
whether Kosovo’s thriving gray economy is detrimental to Kosovo’s progress, it
is useful to put this activity in a “who wins and who loses” framework. For
example, suppose a Kosovar successfully smuggles Marlboro cigarettes into
Pristina and bribes various customs officials nominal amounts in order to do
so. Assume the going rate for a legitimate pack of cigarettes in Pristina is
one euro and the smuggler is able to sell one for fifty cents. When a Kosovar
customer decides to buy the discounted pack of cigarettes from the smuggler,
the customer wins, the customs officials win, and the smuggler wins. In
contrast, the government and perhaps the tobacco company lose, depending on
whether the cigarette retailers would
be able to sell the same number of cigarettes at one euro. (It is conceivable
that the tobacco company could win as well if more cigarettes are sold also at
the lower price. It is a matter of the price elasticity of demand for
cigarettes.) All three “winners” in
this scenario are likely to spend the money that they earned or saved on
productive resources within Kosovo’s private economy. The “losers” in this
scenario would be more likely to spend money outside of Kosovo (in the case of
the tobacco company), or channel the money to unproductive resources such as
palatial public offices, big homes, or personal bank accounts, given the
pervasiveness of other types of corruption and misuse of public funds.
This type of corruption might actually stimulate economic growth and job creation, and surely would redistribute income toward the economically disadvantaged —given that the Kosovar customer saves on his purchase and low income people sell the smuggled cigarettes on the streets. Or, consider street vendors and kiosks or unlicensed minibuses operating on the streets of Kosovo cities. The proprietors of such activities earn a modest living and also provide inexpensive access to small-value retail items and to transportation around the cities. If minibuses continue to operate after the fall of 2006, they would be “corrupt” because the Pristina municipality has prohibited such activity. Though justifications may exist for the prohibition, it is far from clear that prosecuting them for their “corruption” would be socially beneficial. Indeed, it might actually enhance corruption if they can avoid prosecution by paying bribes to public officials.[113]
If Kosovo is to get serious in an attack on corruption, bleaching the gray economy would not be a good place to start.
Widespread tax
evasion in Kosovo is another formally corrupt activity that can be beneficial,
and at the very least less harmful than other forms of corruption. Tax evasion
can have a positive effect on society if the money not paid in taxes is
reinvested in local, productive assets instead of inefficient government
expenditures. Suppose an owner of a retail outlet forgoes paying VAT and
instead uses the money saved to expand his store or stock his shelves with more
or better merchandise. Whether this is harmful to the society depends on the
relative effects of the private investment by the retailer, compared with how
the same money would have been spent by the government. When government is
inefficient, corrupt, and skews its priorities toward perks for public
officials, the society may benefit from diversion of tax revenues into the
private sector. A society needs national resources to be in the hands of those
who will use them most efficiently toward society’s development. Tax evasion
should be low on the list of priorities in the fight against corruption.
In contrast to
the gray economy and tax evasion, bribery of senior officials (including
kickbacks) is a form of corruption that rarely is beneficial to society. Small
“facilitating” bribes to lower level officials, as in the prior example of a
smuggler bribing customs inspectors may be efficient. Bribery shows its ugly
face when a small, non-representative sample of the population offers items of
substantial value to public persons in power to create policy, circumvent laws,
or otherwise induce the public figure to do something he or she would not have
otherwise done which is not in the public’s interest.
When combating
corruption with limited resources in Kosovo, it is desirable to turn a blind
eye to corruption at the low levels of society and focus on the upper realms of
society. Having customs officials and clerks taking bribes is much less harmful
than having public ministers, or heads of political parties, accepting bribes.
Particularly
relevant to Kosovo today is bribery in the form of procurement kickbacks and
partnerships. Although Kosovo is in transition to a private economy, some 65%
of Kosovo’s GDP still comes from the public sector.[114]
Many large contracts are awarded through the power vested in government
employees and are subject to the temptations of kickbacks and illicit
partnerships. Suppose two private asphalt firms bid on a tender by the Ministry
of Transportation. Furthermore, suppose that Company A offers better quality
and price, and would win the tender in a fair and objective bidding process.
Knowing this, Company B offers the Minister a ten percent kickback in the value
of the contract to be wired to his personal bank account when the contract is
awarded. Again it helps to evaluate this scenario in a “winner-loser
framework.” Company B and the Ministry win, while Company A, the morale of
honest employees of the ministry, and the public (through an inferior highway)
lose. The resulting harm of the corruption is lessened or magnified according
to the actual gap in asphalt quality and price between Company A and Company B.
Very often, companies who offer procurement kickbacks and illicit partnerships
to obtain contracts are so inefficient and unaccountable that the money spent
by the government is completely wasted—as if no asphalt were delivered at all.
One type of
corruption that offers no redeeming qualities is embezzlement. Individuals’ stealing government funds
directly is a form of corruption that can be absolutely crippling to a society,
depending on how much is stolen. Not
only does embezzled money not get spent on its intended purpose, but also,
money embezzled by government officials oftentimes goes directly into secret
foreign back accounts and is later spent outside of the country instead being
reinvested, however inefficiently, within the country. Embezzlement in a capitalist economy is
especially malignant because, unlike cigarette smuggling, it shifts income to
the already privileged rather than to the disadvantaged.
An effective
anti-corruption campaign in Kosovo must pick the right targets. The temptation
is high to focus on petty corruption; that poses the least risks to business
and political elites. The most damaging types of corruption like embezzlement,
kickbacks, and bribery occur at the highest levels of government. That is where
anti-corruption campaigns should focus. To spend limited anti-corruption
resources on anything else is distracting and wasteful.
This section builds on the information and arguments developed in earlier sections to propose the elements of an anti-corruption strategy for Kosovo that has the best prospects for success. It begins by postulating crucial indicia of success, and then reviews how the preconditions for success can be sought, and how investigative and prosecutorial resources best can be organized, drawing upon the best practices considered in § III.
One of the pervasive problems in evaluating anti-corruption campaigns in any society is how to determine if they have been successful and whether they were serious in the first place. When broad public concern about public corruption exists, it is easy for public officials and political candidates to promise to root out corruption, even when they have no serious intent of doing so. Indeed, they may often be corrupt themselves, and surely not desirous of exposing and prosecuting their own corruption or that of their supporters. The same thing is true in Kosovo. Political dialogue rings out with accusations of corruption and promises to expose it.
Accordingly, any serious anti-corruption effort in Kosovo and those interested in it must have some relatively straightforward measure of success. Simple measures are not hard to identify. Any serious anti-corruption campaign should result in the prosecution and conviction of at least one high level public or party official, and at least one significant businessman, early—say within a year and a half or so—of Kosovo’s independence.
If neither of these things happens, two possible explanations exist: there is no high level corruption in Kosovo, or the four preconditions for successful anti-corruption efforts do not exist.
It is implausible in the extreme that no high level public corruption exists in Kosovo. Where there is smoke there is fire, and there is a lot of smoke in Kosovo. Not only that, but the conditions in Kosovo, as explained in § IV. A. and § IV. B., are conducive to high level corruption. Accordingly, this explanation for the absence of high profile investigations, prosecutions, and convictions can be attributed to the absence of other preconditions: public will, victim reporting, committed and honest investigators and prosecutors, and a competent, honest, and fearless judiciary. If the political will exists, everything else will fall in line or be exposed publicly. For example, if top political leadership wants to investigate high level corruption and discovers that its investigative and prosecutorial resources are inadequate to do so, it can obtain outside help in training or recruiting such resources. If the high level political will exists, but there is a paucity of victim reports, informers can be recruited through an ABSCAM like front. If the other preconditions exist but are thwarted by a failed judiciary, the problem will be evident for everyone to see: prosecution of high level officials would be brought, but the courts would acquit them.
The assessment of priorities and the deployment of resources benefits from having a concrete factual context within which to consider them. This subsection offers four hypothetical examples of corrupt activities likely to be going on in Kosovo now.
Two companies are engaged in the bidding process for this year’s highway improvement program largely effectuated by public tenders at the national and municipal levels. Company A consistently delivers a quality product at a reasonable price. On the other hand, Company B is known to under-deliver on its relatively expensive previous government contracts. The tender process is long and arduous, but after the process is complete, Company A rightfully wins the highway contract.
The majority owner of Company B is also the owner of a private local university which has supplied the Ministry of Transportation, along with various other ministries, graduates with close personal connections to the owner. As a result of these close personal ties, the owner of Company B is able to bribe certain individuals in the Ministry to nullify the decision and ask the companies to resubmit their proposals under different criteria; criteria more favorable to Company B. The owner of Company B offers a 10% kickback on the contract to those in the Ministry responsible for causing the re-evaluation and eventual granting of the contract to Company B.
Quality electronic surveillance would be crucial to proving this type of corruption. Before electronic surveillance can be a part of an investigation, however, informant type relationships with individuals on the inside of the ministry must be developed over time. These informants can be motivated by civic duty, anger at others on the inside, or simply by the thrill of performing undercover work. Some of these informants may turn into cooperating witnesses; witnesses that will wear a wire and get others to say incriminating things on tape. If the transaction is particularly sloppy, and officials immediately deposit funds they were bribed within their bank accounts, then those records can also be subpoenaed to corroborate the wrongdoing that electronic surveillance and cooperating witness testimony suggest.
In a variant of the preceding hypothetical, the successful bidder, Company A, is approached by a high level ministry official—or more likely an intermediary acting on behalf of the official—and told that the project will be rebid under different conditions unless the successful bidder agrees to make a substantial contribution to a charitable or political fund of the leader of the minister’s party. This type of corruption would be just as harmful as the type described in the preceding hypothetical, but it would be more difficult to investigate and prove. Political and charitable contributions are entirely legal, unlike bribes paid to public officials. The conduct is corrupt only if there is a cause-and-effect linkage between the contribution and a decision by a public official.
In this hypothetical an investigation might well begin by “following the money.” Lists of contributors to the party or charitable fund would be compared with lists of recipients of public contracts. Inferences drawn from matches and the temporal proximity of contributions and contracts would be used to develop targets for further investigation. This initial investigative step would be fruitful only if the identity of recipients of public contracts is public and if political and charitable contributions are transparent—at least to the extent of revealing the actual identity of contributors. Transparency requirements should not be limited only to campaign funds, but should also include other types of funds closely identified with public officials and party leaders.
Once such targets are developed, the same kind of success in developing informants, obtaining testimony, and electronic surveillance results would be necessary as in other examples of corruption.
What distinguishes this scenario from the other bribery hypotheticals is the directness of the path from the briber to the bribe recipient.
When bribes benefit public officials directly, they open a new avenue for investigation. The starting point is to compare the public salaries and other disclosed income of the public official with the public official’s lifestyle and expenditures. A thoroughly corrupt public official will spend more money or have more money in the bank than he or she acknowledges receiving from legitimate sources. When such a gap exists, that public official becomes an obvious target for further investigation employing the same methods of informant recruitment and electronic surveillance as in the other examples. For this strategy to work, however, Kosovar law must require financial reporting by public officials, including the identification of major assets, including bank accounts, and the disclosure of any sources of income other than government salaries.[115]
A government official does not want a new hospital built in Kosovo in a specific region because he is a partner in a private firm working to develop luxury offices and condominiums in the exact location of the planned hospital. The hospital will service thousands of needy Kosovars since the healthcare system in Kosovo is lacking funds, energy and resources. The government official steers public contracts to the developer of the hospital to cancel the plans by creating the excuse that the hospital is infeasible in this particular area, leaving the space free to the official and his development group to build upon. No alternate space is found for the hospital and, as a result, thousands of Kosovars will suffer and will not be provided adequate care in this region.
In order to crack this case, the focus should be on the victim—the hospital. Officials and employees who favored construction of the hospital have an incentive to report the corruption that thwarted their plans, and whether they will do so depends upon the overall climate for victim reporting. Assuming they are willing to complain of suspected corruption, they still may not know much about what happened. The public official, the contractor and top officials of the hospital hardly have an incentive to tell how they have thwarted the plans of the hospital’s professional staff. But the hospital staff may know a substantial amount about construction plans and plans for the alternative development of its chosen site. This information could be essential in helping the investigators figure out whom to target in recruiting informants, and what to look for in financial investigations and eavesdropping.
An important priority in combating corruption is the creation of political will through public outrage directed at corrupt officials. Public outrage is necessary to disrupt the political complacency that may develop from a public perception that corruption is rampant and relatively benign.
One way to cultivate public outrage is to find a relationship whereby a corrupt official is either directly or incidentally involved in a serious criminal enterprise via his or her public office. For example, a public official may be taking bribes from a criminal involved in human trafficking or the drug trade in exchange for a service that is used by the criminal to further the illegal activity. It is important that the criminal be involved in some sort of repulsive criminal activity, such as human trafficking or murder, in order to elicit a strong public reaction. If some connection could be drawn between the corruption and criminal activities that directly affect Kosovars, the public reaction would be even stronger.
Once the public is made aware that corruption can lead to the commission of such serious crimes, then there will be stronger public support for the kind of anti-corruption measures that are necessary. The public will demand increased resources and aggressiveness from the prosecutors in the field of public corruption. As a result, many corrupt officials will reform themselves in order to avoid the scrutiny of the newly reinvigorated prosecutors and investigations. Those officials who do not reform themselves will find continuing their operations more difficult and, hopefully, many will find themselves as the subjects of indictments and convictions.
As § IV.C. argues, some forms of corruption are more damaging than others. To Kosovar society, no single practice of corruption may be more crippling to the economy than the practice of government officials doling out government contracts based on kickbacks rather than fair and objective processes. This practice is widespread and pervasive among government officials and businessmen. Those guilty of this type of corruption often may be indiscreet as they have little fear of legal remedies being brought against them.
As Kosovo’s public grows cynical, investigating and prosecuting at least one high-level offender in both the public (government official) and private (businessman) domain becomes an immediate objective. Gathering evidence for an investigation could take many forms. Completed audit reports, which indicate misappropriation of assets at various levels of many of the ministries, are an excellent indicator showing investigators where to dig deeper.
An investigator’s first steps in collecting evidence should be developing informants, and perhaps even cooperating witnesses in the ministries they wish to investigate. Assuming investigators have sufficient resources and authority, the next step is acquiring evidence through electronic surveillance. After enough incriminating evidence is collected by these means, charges should be brought, and the matter sent to the courts.
Going after a high-level official and businessman is a priority for two main reasons: (1) it will discourage corrupt behavior at the higher levels of government, where it does the most damage and; (2) it keeps the public eye focused on corruption and its ill effects on society, helping fuel an anti-corruption culture amongst Kosovars.
Political will to investigate and prosecute public corruption begins with individuals in positions of influence in the political system. They may be party leaders, public office holders, candidates for public office, public prosecutors, or journalists.
The central question for Kosovo is: who can advance his or her political goals by getting serious about corruption, being committed to expose it, and insisting on its prosecution? Various goals may be operative in this context: obtaining enhanced power and status; obtaining control of public funds to reward supporters or for personal gain; implementation of a policy-oriented program.
Most present political elites in Kosovo benefit from the status quo, and have shown no inclination to expose public corruption (Thaçi and the PDK may be an exception, although it is not clear how serious the PDK “dossier” on governmental corruption is; it may be an overly general claim that PDK opponents should be turned out of office.)
Accordingly, it is likely that some new face is needed to raise visibility of the issue, to demonstrate a commitment to take effective action, and along with it, to advance the actor’s career. An Elliott Spitzer, Patrick Fitzgerald, Bob Woodward or—two generations earlier—Drew Pearson, or a legally trained Albin Kurti—is urgently needed.
The conditions must be such that an ambitious, courageous, effective person sees successful prosecution of corruption as a way of rising from obscurity to fame.
The Watergate case shows the need for a special prosecutor
beyond the usual control of a department or Ministry of Justice. All of the
The statutory authorization for the predecessor office to
the independent counsel was created in response to the Watergate scandal in
1978[116]
and consequently expired in 1999.[117]
The statute authorized the Attorney General (AG) to conduct preliminary
investigations of numerous high level officials in the Executive Branch
including the President and Vice President, provided the AG had sufficient
information to constitute grounds for investigation.[118]
If, after the initial investigation, the AG decides that there are no grounds
for further investigation, then the investigation ends and there can be no
appointment of an independent counsel.[119]
If the AG determines that further investigation is warranted, then the AG
applies to the division of the court for an independent counsel.[120]
A request for an investigation can also come from the Committee on the
Judiciary of either house of Congress, and in these situations the AG must
report to the committee on the status of the preliminary investigation as well
as the necessity of an investigation by an independent counsel.[121]
A panel of three judges designated by the Chief Justice of the
The independent counsel has full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.[126] The independent counsel must provide the judicial panel with a report every six months which identifies and explains all expenses. Prior to the termination of the investigation he must provide a report fully describing the independent counsel’s work.[127] Congress has oversight jurisdiction with respect to the official conduct of the independent counsel and the independent counsel must provide an annual report to Congress describing the progress of any investigations or prosecutions.[128] Both the independent counsel and the judicial panel have the authority to terminate the investigation when either body determines that the investigation has been completed.[129] The independent counsel may be removed from office only by the AG, and only as a result of some condition that substantially impairs the independent counsel’s ability to carry out his or her duties.[130] The independent counsel may obtain judicial review of any such removal.[131]
Prior to the adoption of the independent counsel legislation by Congress, there had been three instances in American history where special prosecutors had been utilized:[132] the Watergate scandal, the Tea Pot Dome scandal, and the tax scandal of the 1950s.[133] The problem with the earlier arrangement that motivated Congress to develop a statutory solution was the President’s power to fire the special prosecutor.[134] This result occurred in both the Watergate scandal and the tax scandal of the 1950s.[135]
Over the course of the independent counsel’s statutory life there were three re-authorizations that tinkered with the role of the AG in the process, but the overriding focus on an independent body to investigate executive misdeeds remained.[136] In that time there were twenty-one independent counsel investigations for which the costs exceeded $166 million.[137] Fewer than half of the investigations led to convictions,[138] and those that did were criticized for being too expensive and time-consuming.[139] Other critics of the statute contended that it was unconstitutional, saying that it deprives the President of a purely executive activity.[140] Eventually both parties became disillusioned with the statute, and they let it expire in 1999.[141]
Creating a similar office of independent counsel or special
prosecutor in Kosovo would be difficult under the current political
arrangement. The driving force behind the adoption of the independent counsel
statute was a public mistrust in the executive to police itself effectively and
honestly.[142] There
is ample justification for such mistrust in Kosovo. The current Prime Minister
Agim Ceku came to office promising to clean house amid accusations that several
ministers of the government were corrupt. After the leader of the political
party sponsoring him declared that all ministers should retain their posts,
however, he backed away from his promise to clean house and had made no changes
in ministerial personnel even after the 100 days he had promised himself to
decide what ministers should remain and what ministers should go. Organizing a
special prosecutor or an independent counsel in Kosovo is more difficult than
in the
Many plausible constitutional structures could allow for an independent prosecutor. The parliamentary majority conceivably could insist upon the appointment of an independent prosecutor as the price for not adopting a vote of no confidence against the government. Or the parliamentary opposition could create so much public pressure against the government that the government is forced defensively to create an independent prosecutor, just as President Nixon was forced to create the special prosecutor office by pressure from a Congress controlled by the opposition party and from the public.
Appendix II provides a draft job description for a Kosovo special prosecutor.
All of the case studies show that informants, cooperating
witnesses, and undercover agents are necessary in a successful investigation of
public corruption. The axioms postulate such necessity explicitly. This section
considers whether the legal framework in Kosovo is adequate, in comparison to
the legal framework in the
In Kosovo, a simulated purchase of an item or a simulation of a corruption offense for the purpose of collecting evidence for a criminal investigation can be performed or directed by a duly authorized judicial police officer if two preconditions have been met.[144] First, there must be a grounded suspicion that the person has committed, or attempted to commit, a criminal offense punishable by at least four years in prison, or one or more of a list of seventeen crimes including forgery of documents and money, unjustified acceptance of gifts, unjustified giving of gifts, trading in influence, criminal association, accepting bribes, and giving bribes.[145] Second, “the information that could be obtained by the measure…would be likely to assist in the investigation of the criminal offense and would be unlikely to be obtained by any other investigative action without unreasonable difficulty or potential danger to others.”[146]A roadblock to utilizing these investigative measures is the requirement of a judicial order.[147] The order is issued by a pre-trial judge upon the basis of an application by a public prosecutor.[148] A public prosecutor can issue a provisional order in emergency cases when the delay resulting from an issuance by a pre-trial judge would jeopardize the security of the investigation or the life and safety of a party connected to the investigation.[149] Such a provisional order has effect for only twenty-four hours without the confirmation of a pre-trial judge.[150]
The order shall only authorize a single simulated purchase or corruption offense.[151] A further order may be issued if the preconditions necessary to issue an order still exist, and “there is a reasonable explanation of the failure to obtain some or all of the information sought under the earlier order.”[152] When implementing this order the informant cannot commit a criminal offense or incite another person to commit a criminal offense that he or she would not have committed.[153] If at any point the preconditions for issuing an order cease to apply, an authorized judicial officer may terminate the order.[154] If a person believes that he or she has been the subject of an unlawful measure, that person can submit a complaint through the Head of the competent public entity to the Surveillance and Investigation Review Panel.[155] The Review Panel adjudicates the complaint and decides on compensation where appropriate.[156]
In exceptional circumstances a pre-trial judge may, upon application of the public prosecutor, order that any information or data in the collected materials that could be used to identify the informant be expunged or omitted, or that records in the materials not be disclosed.[157] The exceptional circumstances exist when the evidence is not deemed exculpatory and revealing those items would jeopardize the investigation or the life and safety of the informant or the informant’s family.[158]
The rules governing the use of undercover investigative
procedures other than a simulated purchase of an item or a simulation of a
corruption offense are less stringent because an order for an undercover
investigation is issued by a public prosecutor instead of a pre-trial judge.[159]
One of the significant differences between this and the
The Criminal Procedure Code of Kosovo does not address
confidential informants. In the
Members of the Kosovar-Albanian diaspora may be good possibilities for recruitment as undercover agents or informants because they face less physical risk; they are already “relocated.” Obviously they would not be effective if they were to operate outside Kosovo, but their ties to Kosovo and their shared culture could make them effective if they stay in Kosovo for the duration of an investigation and then return to another country after the investigation is complete. While the Albanian diaspora certainly should be considered as a pool for possible recruitment of informants or undercover agents, certain realities may limit its potential. Members of the diaspora already involved in business or political activities in Kosovo, and therefore likely to be already trusted and knowledgeable about corruption, have no more incentive to betray their associates than do similarly situated people inside Kosovo. Of course, just as people fall out with their associates or are disappointed about lost business opportunities inside Kosovo, the same thing may happen to a member of the diaspora. A member of the diaspora in such circumstances is a better target to become an informant or undercover operative because the diaspora member does not have to stay in Kosovo and bear the consequences of his cooperation.
Members of the diaspora who are not presently involved in business or political activities in Kosovo offer only a marginal advantage over any other outsider. Were they suddenly to show up and try to get close to a political or business figure inside Kosovo, they likely would come under immediate suspicion. On the other hand, the energetic effort by Kosovars to attract foreign investment, and the modest success of this effort so far, will create the conditions for several years in which a member of the diaspora could show up under cover of having been recently persuaded to invest in Kosovo.
The Provisional Criminal Procedure Code of Kosovo defines a cooperating witness as a suspect or defendant who is expected to voluntarily testify truthfully in court, and whose testimony is “likely to prevent further criminal offenses by another person and likely to lead to the findings of truth in criminal proceedings, such that it might lead to a successful prosecution of other perpetrators of a criminal offense.”[169] Upon a written application by the public prosecutor,[170] the pre-trial or presiding judge may convene a closed hearing to decide whether to issue an order declaring the person to be a cooperating witness.[171] The judge’s order must specify the criminal offenses, from which the witness is immunized, the punishment the witness will receive for the remaining offenses, the nature and substance of cooperation given by the witness, and the conditions for revocation of the order.[172] If the witness gives false testimony, the order may be revoked by a three-judge panel.[173] A cooperating witness could also be utilized as an informant so long as the witness is operating under the supervision of a duly authorized judicial police officer.[174]
All of the case studies show the essentiality of electronic surveillance, and one of the axioms asserts such explicitly. The availability of electronic surveillance in Kosovo, accordingly, is an essential part of any effective campaign to combat public corruption. Its availability depends upon the legal requirements for its use, and the technical capacity to deploy the necessary technology, assuming of course, the willingness of informants or undercover agents to participate in wearing a wire or recording telephone conversations when surveillance other than traditional wiretaps are contemplated.
According to UNMIK regulations, interception of telecommunications or communications by a computer network may be ordered against a certain individual if 1) certain facts substantiate that the suspect has committed a criminal offense punishable by more than four years or committed one of a list of eleven offenses; and 2) the information that could be obtained by this measure would be likely to assist in the investigation, and would be unlikely to be obtained by any other measure without unreasonable difficulty or potential danger to others.[175] This order must be issued by an investigating judge in response to an application by a public prosecutor.[176] This application must include a complete statement of the facts relied upon to form the belief that the requisite crime has been committed and that there is no other adequate way to procure the information.[177] In emergency cases, the prosecutor may issue a provisional order that will cease to have effect if it is not confirmed by an investigative judge within three days of issuance.[178] The order must be carried out in such a way as to minimize the interception of information that is not included in the order.[179] Also, once the conditions for the issuing of the order cease to apply, then implementation of the order must be suspended.[180] The order may be issued against anyone suspected of communicating with the suspect, or anyone who possesses a telephone or computer that the suspect is thought to have used.[181]
The main difference between the wiretapping laws in Kosovo
and the
Orders for body wires and telephone conversations do not require judicial approval in Kosovo where one of the parties has consented to the surveillance.[184] The general rule is that in order to engage in forms of electronic surveillance where none of the parties consent, the order must be issued by a pre-trial judge.[185] An exception is made for covert monitoring of conversations in public places, where authorization can come from a public prosecutor.[186] Another exception is made in emergency cases where the delay that would result from a pre-trial judge issuing an order would threaten the investigation or a party involved in the investigation.[187] In these circumstances, a public prosecutor may issue a provisional order that will cease to have effect if it is not confirmed by a pre-trial judge within twenty-four hours.[188]
In the
In the
The Kosovo Auditor-General’s (AG) primary responsibility is to perform annual regulatory audits of numerous publicly-funded institutions.[194] The AG may also perform regulatory and performance audits at the behest of the Assembly.[195] A regulatory audit is primarily concerned with identifying potential wrongdoing, while a performance audit is an audit of the efficiency and effectiveness with which the institution manages its resources in carrying out its responsibilities.[196] While the current AG is appointed by the SRSG,[197] the AG will become a fully localized institution based upon a plan created by the AG and approved by the SRSG to finalize appointment procedures.[198] The AG has the power to compel production of all information and documents it desires.[199] The AG is also free to create its own standards and procedures, so long as they comply with the International Standards of Auditing.[200]
The only two significant differences between the U.S. Government Accountability Office and the Audit Office of Kosovo are the authority to initiate an audit and the breadth of subjects covered in a report. The Auditor-General can only initiate an audit if it is one of the annual audits required by the statute, or if it is requested by the Assembly.[201]
The Comptroller General (who heads the GAO), on the other hand, can perform an investigation into the use of public money on his/her own initiative.[202] Also, the AG’s annual reports are regulatory audits,[203] and these audits do not address the efficiency and effectiveness with which the audited institution uses and manages its resources.[204] A performance audit that focuses upon those neglected issues can be requested by the Assembly,[205] but cannot be performed without a request.[206] The Comptroller General, on the other hand, is required to comment on the efficiency of the institution as part of the annual report.[207]
The Kosovo Anti-Corruption Agency’s (Agency) primary responsibilities are to conduct administrative investigations into corruption,[208] forward criminal cases of corruption to the prosecutor,[209] and participate in the process of designing legislation and policy to combat corruption.[210] All public bodies, local authorities, and official persons are required to provide the Agency with all the information and documents that are requested of them.[211] The director of the Agency is selected by the Assembly from two candidates recommended by an Agency Council.[212] The Agency Council is primarily comprised of representatives from various government organizations.[213] The Agency does not interact much with prosecutors, except to forward cases involving criminal corruption to them.[214]
One difference between the Agency and the Inspector General (IG) is that the Agency focuses on legislation that directly addresses corruption,[215] while the IG reviews all legislation with a focus on how it will affect corruption.[216] This distinction exists on a more general level as well. The focus on corruption is an outgrowth of the IG’s responsibilities in regard to the effective and efficient administration of the laws, rather than its main objective.[217] The Agency, on the other hand, has anti-corruption as its main objective.[218] Another distinction is that the appointment of the director is directly influenced by a larger pool of people. The Assembly chooses from two candidates that were selected by the Agency Council.[219] The Senate, on the other hand, addresses one candidate who was selected by the President.[220]
“Hotlines” are special telephone numbers that persons can call, or e-mail addresses to which they can send e-mails, to report misconduct, including corruption. Such hotlines are believed to encourage reports from victims and others fearing retribution because they can do so anonymously. Hotlines generate a large amount of extraneous information and are useful only if the resources exist for careful screening of accusations delivered via hotline. Moreover, citizens with information about corrupt activities to report may be reluctant to use the hotlines if they believe that the agency sponsoring them has itself been corrupted. Whether or not it is so, most people believe that even anonymous calls and emails can be traced to them.
Around the world many other anti-corruption hotlines exist
and function to aid organizations and governments. The federal government of
The
UNMIK has created an anti-corruption hotline program to help promote its anti-corruption campaign in Kosovo. The hotline is used to measure the number of reported cases, and then to evaluate the types of corruption reported, defining what corruption is most prevalent in Kosovo. Any citizen of Kosovo, or member of the world, can dial this number or send an email from the UNMIK website under the heading “corruption hotline.” Currently, UNMIK operates a customs hotline to report smuggling or corruption. The hotline can be reached at the number +381/038/540 350. A person can also report corruption at the website www.unmikcustom.org.[223]
Witness protection determinations in Kosovo are made by the court upon a written petition filed by the witness’ counsel.[224] An order for a protective measure or anonymity is proper when the court determines that a serious risk to the witness or the witness’ family member exists, and the protective measure is necessary to prevent that risk.[225] The protective measure to be employed is left to the court’s discretion, but the regulation does list a number of protective measures.[226] If ordinary protective measures prove to be insufficient to guarantee protection, the court can, in these exceptional circumstances, order that the witness remain anonymous to the public.[227] In these cases, the court holds a hearing in a closed session where it assesses the risk, the interests of the public and other parties, the importance of the testimony, and the credibility of the witness before making a decision.[228] If the court issues such an order, that witness will remain anonymous to the public and to the opposing parties and counsel.[229]
The witness protection program in Kosovo differs from that
in the
Statutory authority is hardly the most important aspect of
an effective witness protection program, as earlier parts of this report have
explained. A large working part of any witness protection program is witness
relocation. In the
Family is the most prominent factor that makes relocation of
witnesses difficult. In the
In Kosovo ethnic and cultural ties play a more prominent
role in the reluctance to relocate. Kosovars would not be able to relocate to
areas within the similar cultural region, leaving them isolated from old
customs and traditions. Also, Kosovars cannot relocate to a place that is
heavily populated by their same ethnicity because of anonymity reasons and ties
to their homeland. Thus, the ideal place for a Kosovar witness to relocate to
would be one of completely different, cultural, ethnic, and racial background,
for example
This relocation to a completely new area raises language issues. Kosovars would have to learn a completely new language. Many of them are uneducated in the first place, and the burden of adapting to new surroundings would only be heavier with the addition of learning a new language.
Another factor that is unique to the Kosovo situation is the strong determination to remain home. If Kosovars had wanted to escape or relocate, they would have done so during the war when they were being forced out of Kosovo. Additionally, fear of the unusual or new surroundings tends to overwhelm Kosovars more so than their fear of their perpetrators. Thus, the witness relocation program must take these factors into consideration before creating a comprehensive and workable program.
Earlier parts of this report also have made the point that witness relocation programs, like witness protection programs of any form, are extremely expensive. To derive an estimate for the cost of a U.S.-style witness protection program in Kosovo, one can take the 1997 U.S. Budget for witness protection of some $61.8 million, and ratio it by a fraction comprising the population of Kosovo (2 million) with the U.S. population (3 million), which results in a Kosovo witness protection budget in excess $400,000.[236]
Large scale corruption often is exposed first, not by government officials, but by journalists—sometimes acting on tips from lower level prosecutorial or law enforcement personnel who are frustrated because higher-level officials lack the political will to investigate and prosecute public corruption vigorously.
Prosecutors report to some branch of government; they depend on the government to pay their salaries and provide them with resources. Journalists do not; as a consequence, journalists are harder to intimidate economically and harder to starve into submission by denying them resources. Kosovo also has an abundance of journalists, serving nine major newspapers, three national television outlets, four major radio stations and Internet sites too numerous to count.
Nurturing investigative journalists in Kosovo is an important part of any effective anti-corruption initiative. They need moral support from their organizations, willingness by their editors to put their stories in the paper or on the air, and training about the investigative techniques most likely to unearth evidence of corruption.
As § III. B. explained, social norms are as important as law in determining whether corruption is tolerated or can be successfully prosecuted and reduced. That section also explained that norms favorable to corruption are difficult to change. Kosovo should intensify efforts to build the appropriate norms. This should focus particularly on young people and on the business community. It can be understood especially when it focuses on young people, as a component of a larger effort at “civic education.”
Before the 1999 conflict, civic education had but one objective: love your country and be prepared to take arms in its defense. Much has changed after the conflict, however, and the focus of civic education is no exception. With the help of the new political landscape and the international community, the content of civic education has morphed into healthy debate and understanding about democratic processes and human rights.[237] Although still in its infancy, civic education in Kosovo has made impressive strides by changing the nature of the subject matter taught.
Current small scale initiatives within Kosovo are planting the seeds for more widespread efforts at civic education in the future. Successes have occurred as early as at the preschool level in new civic activities, such as having preschoolers meet policemen and learning law enforcement’s responsibilities in their community. These types of initiatives are not altogether isolated and are excellent examples of how civic education’s role should function at the academic level. These programs and new ones similar to them should be encouraged and expanded upon.
Adolescents and young adults equipped with a very basic foundation in civic education are intellectually capable of debating more complex, public issues. Once given a platform to learn, these youth are able to grasp the ideal relationship between a government and its populace: the government’s role is to represent the best interests of the populace, and it is the populace’s responsibility to hold the government accountable. An integral part of this education should include information about the direct, negative effects commonplace corruption has on their everyday lives. For instance, young adults should be challenged to make the connection between the Minister of Transportation’s embezzling and accepting of kickbacks and the 400 euro bill their father received from the auto mechanic after running into a pothole on the highway.
Kosovo’s youth are not the only hopeful examples of a more mature civil ethic among Kosovar society. Within the business community, Kosovo’s Chamber of Commerce has been instrumental in providing peer support to companies who are having trouble with the Kosovar regulatory system. The Chamber of Commerce, under new leadership headed by widely respected businessman and public servant Besim Beqaj, plays its role in educating companies about their rights under the relatively new Kosovar system. When irregularities occur, the Chamber of Commerce has become a conduit through which companies can voice their concerns and, when necessary, band together to lobby against such irregularities. The Chamber of Commerce should be allowed to continue to flourish, and other organizations that serve the same end for various other interest groups should be encouraged as well.
The most developed mechanism for civic education in Kosovo is Kosovo’s free press. Taking into account that the many of Kosovo’s inhabitants are unemployed, various daily newspapers are very widely read. Although in some respects flawed, the press has done an excellent job at uncovering inequities and giving the public a sense of what is and is not acceptable in terms of corrupt behavior. If political will could be more firmly established, the press would make an excellent delivery mechanism to a government sponsored civic education advertising program aimed at the general populous.
A final caveat: private individuals and organizations alike need to be specific with corruption allegations. Accusations based upon mere suspicion or distrust serve only to jade an ever weary public, as they may be difficult to distinguish from more serious accusations and rarely result in a police investigation. Specific allegations, however, with strong evidence in their support, put pressure on politicians, police, and prosecutors to do their job.
Rooting out public corruption is difficult in any society and requires a sustained, patient effort, even when the four preconditions identified in § IV. C. exist. Kosovo is no exception. It is important that expectations about anti-corruption initiatives be realistic. This section suggests what is possible in one year, three years, and ten years.
The Kosovar public currently views corruption as a major reason for Kosovo’s lack of economic progress as a nation. This contributes to a political environment that is increasingly charged and jumpy at the mention of corruption. It would not take much for real political will to develop in response to public perceptions. In the next year, it is possible that a group of politicians or perhaps even an entire political party will take up the anti-corruption cause in a serious way.
Fortunately, the laws are already in place to help support
such a movement. Anti-corruption legislation is similar to that of the
In one year, it is conceivable that not only will political will manifest from a broad public concern about corruption’s negative effects on their society, but that it will then fuel the creation of an anti-corruption body with some teeth.
Specifically, the Kosovo Anti-Corruption Agency is an institution that needs to experience rapid growth. The first step has been completed with the drafting of the statute, which lays the groundwork for an agency that will aggressively monitor the activity of public officials. Simply having a competent government body, such as this one, will provide a strong deterrent against public officials who may be contemplating participating in some sort of corrupt behavior. The Agency needs to exercise its powers to the fullest extent. It needs not only to fulfill its duties in monitoring public officials, but must also formulate a long-term anti-corruption plan and advise the Assembly on the possible corruption ramifications of legislation that is considered and passed. By identifying possible or likely avenues of corruption early, the Agency and prosecutors will be better equipped to impede corrupt activity.
Perhaps the most important achievement that can be made within one year is the commencement of at least one major corruption investigation. This investigation must be carried out by a competent prosecutor who will follow the corruption wherever it takes him or her. In addition to any convictions that may result from the investigation, there will be at least two resulting positive effects. First, the commencement of a serious investigation into public corruption will help to restore the public’s faith that the government is taking action to curb corruption. Without some sort of activity by the government, the public may fall into the perception that everyone is corrupt and therefore there is no political will to combat it. Second, some corrupt officials will essentially be scared straight. The risk/benefit analysis that officials make prior to engaging in corrupt or illegal activity will change. A serious investigation will increase the risk and deter some officials from taking part.
Another result that can be easily accomplished within the next year that very well may lead to numerous investigations is to follow up on audits that discover financial inconsistencies. If an audit of a governmental body finds that money may not be headed where it was supposed to, anti-corruption authorities must then step in and make the appropriate officials account for where the funds have gone. Doing so may unearth cases of actual corruption, and at the very least it will help to achieve a more efficient government.
It is not, however, realistic to expect that actual convictions would result from anti-corruption investigations within one year. Instead, the most that can be hoped for is that a prosecution would have commenced by filing charges. It also is possible, though not desirable from the aspect of public monitoring of the seriousness of any anti-corruption campaign, that one or more serious investigations might be underway but could not yet be made public without compromising them. Success in the first year may have to be judged afterwards, in retrospect.
If a serious anti-corruption body can be properly staffed and funded, then real headway can be made with serious investigations into the misdeeds of the political higher-ups. As a naturally occurring cycle, these investigations usually bring with them added public support and political will. Within three years, it is realistic to have various ongoing investigations and at least one high level conviction.
Within three years, it is a realistic goal to have at least one high-level, visible conviction. By this time, there should be prosecutors that are specially trained and focused upon conducting corruption investigations. Investigative techniques will have become more sophisticated, and the pool of confidential informants and cooperating witnesses will be growing quickly. The conviction(s) will continue to create public confidence in the government’s will to combat corruption.
The overarching goal is to have an institutionalized system to fight corruption in place within three years. This means developing the institutions that already exist to the point that they run efficiently, and restoring public confidence in government. A byproduct of public confidence in an honest government will be increased political participation that leads to a more developed dialogue between voters and politicians. The perception that corruption is a necessary and unavoidable aspect of governance should be replaced with a perception amongst both the public and politicians that corruption is a phenomenon that hurts all levels of society, and that those who participate in it are criminals who will soon fall under the watchful eye of the authorities.
Three years is an ample period for serious anti-corruption investigations to ripen into public prosecutions and actual convictions. If no high level convictions have occurred within three years then the citizens of Kosovo and outsiders can be confident that the political will to root out corruption in independent Kosovo is absent.
Although perhaps not to the extent of the world’s most developed countries, in ten years Kosovo can realistically hope to have effective, independent anti-corruption resources as a regular part of its political system.
Ten years from now Kosovo could have a working system
whereby corruption is reported, investigated, and prosecuted. There should be
anti-corruption experts working both as prosecutors and in the Anti-Corruption
Agency. It is reasonable to expect that a 10 year period should see some
convictions as extensive as those in the U.S. ABSCAM, Silver Shovel, and
Greylord investigations. Such results would create the impression that other
investigations are ongoing. Anti-corruption activities should be integrated
with those of the rest of
Section IV.C. made the point that different types of corruption may be more or less damaging, and that an anti-corruption initiative in Kosovo should focus on high level bribery and embezzlement. That leaves open the question, however, of where the focus should be in terms of various types of contexts within which corruption can occur. Selecting targeting priorities within these contexts should depend on the degree of suspicion that illegal conduct is occurring, the likelihood that it can be uncovered and proven in court, and, importantly, the public opprobrium that would attach to exposure. Any public corruption campaign should be organized in large part to increase rather than diminish public support for reducing corruption.
Three possibilities should be considered: drug trafficking, human trafficking, and public contracting.
Drug trafficking is an attractive potential target because significant criminal intelligence about drug networks and Kosovar participants in them is potentially available from other countries’ police and intelligence services. If those services are willing to provide some of the intelligence to a Kosovo anti-corruption initiative, that would make the initial targeting of Kosovar participants easier. Indeed, it may be that other police and intelligence services have been waiting for the opportunity to prosecute some Kosovar participants.
On the other hand, if the evidence shows that Kosovars are involved in drug trafficking that involves mostly foreign sources and destinations, the general population may not perceive the activities of the Kosovar defendants are particularly injurious to Kosovo and might be persuaded by the defendants and their supporters that the prosecutions are simply vendettas against Kosovar Albanians. Moreover, drug trafficking is sophisticated and ruthless. The risk of witness intimidation and assassinations would be high.
Human trafficking shares some of the characteristics of drug
trafficking but also differs from it in important ways. The quantity and
quality of criminal intelligence about human trafficking networks is likely to
be less than that related to drug trafficking networks because human trafficking
has only become a matter of large scale international concern recently, while
drug trafficking has been a concern for at least two decades. Human trafficking
might be a more attractive target for initial focus than drug trafficking
because human trafficking is more likely to be repugnant to most of the Kosovar
population. While many in Kosovo, as in the
The best circumstance would be if the participation by Kosovars in human trafficking results in the kidnapping of at least some Kosovar citizens, male or female, to fulfill the sexual desires of foreigners. It is not clear as of the writing of this report whether such Kosovar victims of human trafficking exist. If the victims are foreign men or women brought into Kosovo or moved through Kosovo, the public outrage about the participation of Kosovars in such trafficking would be less, and there is the risk that targeting them for prosecution would be perceived as a vendetta against Kosovo, as with drug trafficking, although there surely would be a higher degree of public opposition to any Kosovar participating in human trafficking as contrasted with drug trafficking.
Targeting human trafficking, however, must not deteriorate into occasional raids on houses of prostitution and prosecution of low-level prostitutes or pimps. To be meaningful, targets must be those who run the network.
This might seem to be the most obvious context to focus on, because it takes place in Kosovo and all the participants are in Kosovo at least at some points in time. Moreover, while physical threats to the safety of informants, undercover agents, and cooperating witnesses surely exists, participants in public contract corruption are less likely to be as depraved and ruthless as those involved in high level drug or human trafficking.
There are some disadvantages of this focus, however. It is far more likely that the average Kosovar would perceive certain types of corruption and public contracting as simply a normal way of doing business. Moreover, individual businesses and the business elite may perceive, upon reflection, that they are better off in the short run with the status quo than with high levels of controversy about business and government linkages in corruption. Accordingly, corruption in public contracting may be harder to investigate successfully, and the positive increment to public support resulting from successful prosecutions might be less than prosecuting more opprobrious forms of criminal activity.
It is commonplace for experienced public corruption
investigators in the
“COOLEY: No, no, no because here's the thing, if they get [$75,000] this guy's home free, then he's in no hurry to work out somethin'. They have to get that money. If they don't get ... it this thing today is turned down, tomorrow this guy will work a deal with me.
“DELEO: Okay.
“COOLEY: If I get this thing denied today, it'll be done.
“DELEO: Okay.
“Cooley reiterated his position later when he met with DeLeo again before the hearing took place:
“COOLEY: Here ... if he doesn't get that today he's got to cut a deal.
“DELEO: (IA) was it served?
“COOLEY: It was served at my office, yesterday afternoon. My guy's out of town, my guy's back in Seattle, I'm just gonna tell the judge that I can't get my client I'm not gonna okay one nickel going out (IA) ... see they've got to work this deal now.
“DELEO: (IA)
“COOLEY: If he denies it.
“DeLeo confirmed what disposition of the motion Cooley was seeking from Shields at the conclusion of their conversation:
“DELEO: I'll be back (Inaudible)
“COOLEY: Alright.
“DELEO: (Inaudible) ... We want to stall it till next week.
“COOLEY: Fine that's all we need.
“DELEO: (IA)
“COOLEY: That's all we need.
“DeLeo proceeded to meet with Shields in his chambers, just before Shields heard the Nichols motion. A brief exchange between Shields and DeLeo, in which DeLeo echoed the strategy he and Cooley had just discussed, confirms that Shields was on board with the plan to fix the case:
“DELEO: I'm going out of town next week. (IA) California (IA) stall it 'till next week and the case will be settled.
“SHIELDS: All right.”[238]
* * *
“One of DeLeo's first remarks to Cooley about the prospect of influencing Shields was:
No, he'll do whatever we want. [A]ll he's wan ... worried about is this. That's what I'm saying and you know and you, you know how, what to do.
“Cooley testified that when DeLeo told him "all he's wan ... worried about is this," DeLeo had rubbed his fingers together in a gesture Cooley took to mean "money". Later in that conversation, the references to bribes became more explicit:
“DELEO: (IA) all you got to do is tell me what you want me to give him.
“COOLEY: Alright you tell me what's fair Patty.
“DELEO: I don't know.
“COOLEY: Yeah.
“DELEO: I know. (IA) know all I want to do, all I want to do is lock him up.
“COOLEY: There's big bucks involved in it.
“DELEO: (IA) You tell me what you want to do.
“COOLEY: There's big bucks involved.
“DELEO: You tell me what you wanna (IA) do.
“COOLEY: Well you tell me whatever is fair to start.
“DELEO: I don't care. It don't make any difference.
“COOLEY: Alright give me a normal number.
“DELEO: I have no idea.
“COOLEY: I've never done anything before in the civil area.
“DELEO: I have no idea.
“COOLEY: So numbers I, I don't care what the numbers are. You know if it's worthwhile.
“DELEO: I don't know.
“COOLEY: If I, if I can walk in and look like a star.
“DELEO: He'll do it, he'll do it like this.
“COOLEY: Okay.
“DELEO: Okay. He'll do anything. You tell me what you want me to give him.
“COOLEY: How about, how about 2500?
“DELEO: Fine.
“Again, Cooley testified that when DeLeo said, "[A]ll you got to do is tell me what you want me to give him," he understood DeLeo to mean how much money they were going to pay Shields.
“DeLeo later reiterated Shields' contentment to rule as Cooley wished so long as he was paid in his later conversations with Cooley. When DeLeo and Cooley met on August 19, 1988, just before Shields first heard Cooley's motion for preliminary relief in the Nichols case, DeLeo told Cooley, "Give me the money and I'll give it (IA)." [citing recording] Cooley testified DeLeo had said "I'll give it to him," meaning "to Shields." The first bribe of $2,500 then changed hands between Cooley and DeLeo. Shortly thereafter, DeLeo informed Cooley that "[Shields] won't take the money till it's granted." Several days later, when Cooley met with DeLeo to discuss an impending, second hearing in the Nichols case, Cooley asked DeLeo whether Shields had been happy with the first bribe:
“COOLEY: Alright, but I mean, with him, (IA) was he happy with what I gave him before.
“COOLEY: Ok, as long as he's happy that's the you know that's the main thing. (IA)
Cooley testified that in response to his question, DeLeo had nodded his head. The question of money came up again as Cooley emphasized to DeLeo that he wanted Shields to continue the forthcoming hearing so that the case would remain in a favorable posture for settlement:
“COOLEY: (IA) You tell me, you know again, you know I know he'll take some heat from the other side. If he can get me couple weeks date Pat, we can probably get this whole thing done. In other words if he can get me a couple weeks date.
“DELEO: (IA) Let's give him another two bits.
“COOLEY: Alright fine if that[']s fair with him ...
“Cooley understood DeLeo to be suggesting that he pay Shields another $2,500. Cooley handed that amount to DeLeo at a subsequent meeting on August 30, 1988. Again Cooley asked DeLeo whether Shields was happy. DeLeo's response was inaudible on the tape, but Cooley testified that DeLeo had responded affirmatively with a nod of the head. DeLeo confirmed Shields' satisfaction with the money during a phone conversation he had with Cooley on September 1, 1988:
“DELEO: I absolutely think it's no problem, because he was like doing somersaults.
“COOLEY: Okay, great.
“DELEO: He goes oh, I thought it was all part of this ... I says no, never part of the (IA).
“COOLEY: Good.
“DELEO: Okay? (IA)
“COOLEY: Oh, then you saw him a second time, then.
“DELEO: I actually don't think there's ever going to be a problem.
“COOLEY: Okay.
“DELEO: But I said no, I jus' told ya, now I'll, I'll see you at the end of this case.
“COOLEY: Okay.
“DELEO: I, I, told the other lawyer. I said I'll see you at the end of the case and he's like doin' somersaults, (IA) I never expected to see you again until the end of the case....
“Cooley confirmed that he understood these references were to Shields and his satisfaction with the bribes that had been paid. Ultimately, after the Nichols case was resolved, Cooley met once again with DeLeo and sought his guidance as to how he should pay both defendants for their assistance:
“DELEO: You got your cut?
“COOLEY: Yeah I can probably take mine out now I put the check in there almost what, a week and a half ago so I'm sure the check is cleared by now.
“DELEO: So how much do you wanna go?
“COOLEY: I mean you tell me Patty.
“DELEO: I don't care Bob.
“COOLEY: Tell me what, cause I don't want, I don't want the other guy gettin angry either think we're cuttin' him out cause I mean if he needs some more let me know.
“*24 DELEO: (IA)
“COOLEY: You tell me.
“DELEO: (IA) give him another twenty-five.
“COOLEY: I mean will that be enough, will he be uh ...
“DELEO: (IA) I, you know what, (IA) have to give anything.
“COOLEY: I mean you tell me, again I have to go, may have to go back there again for something and he's the Chief Judge we don't [want] to have a problem up there. (IA) we'll give him another 1,000 I mean that's not a whole lot, that's not a little.
“DELEO: (IA)
“COOLEY: Is five thousand good for you?
“DELEO: Sure.
“COOLEY: I mean is that fair?
“DELEO: Yeah
“COOLEY: Ok, then why don't I see you tomorrow morning, I'll give you call tomorrow morning and I'll met you tomorrow morning and I'll get it to you tomorrow.
“Cooley testified that he gave $6,000 to DeLeo on the following day.
“All of these exchanges supported the government's allegation that Shields and DeLeo had induced Cooley to part with his money by conveying the impression to Cooley that Shields would rule in whatever way Cooley desired so long as bribes were tendered. Moreover, as the Court noted in its pretrial opinion denying defendants' motion to dismiss the Hobbs Act charges, the economic harm theory was not precluded by the fact that Cooley was a government informant and therefore could not truly have feared economic harm from the defendants.”[239]
“On February 2, 1980, Weisz, accompanied by
WEISZ: There's other ones, yes.
“AMOROSO: All
right. How about the same arrangement?
“WEISZ: I
don't see why not.
“AMOROSO:
Okay.
“WEISZ: Seems
satisfactory.
“····
“WEISZ: If you wanna do exactly the same thing, I'll get you somebody else to do exactly the same thing.
Weisz asked Weinberg to call
Ciuzio and was surprised, but unconcerned, that Amoroso intended to deliver
Congressman Kelly's $75,000 personally:
“AMOROSO: I
got fifty for you, fifty for Bill [
“WEISZ: And
you're gonna ··· deal direct with ··· Kelly?
“AMOROSO:
Yeah.
“WEISZ: Ok ···
I see···· As long as he agrees ··· [t]hat's perfectly okay. I couldn't care one
way or the other.”[240]
Repeatedly the public officials talked mostly about the legitimacy of the proposed projects, and had to be lured carefully into talking about bribes. For example City Council President Schwartz said, “[I]f it isn’t something outlandish, if it is something that should and can be handled, and I can, I can’t think of anything that couldn’t be handled.”[241]
Evidence was collected through video recordings made of
meetings between the targets and undercover agents at a house in
“In discussing the political situation in Philadelphia, and City Council in particular, Johanson boasted that of the 17 councilmen, he and Schwartz was each a “very bright fella”, and “after that there ain't a brain in the closet.” He spoke of his and Schwartz' importance, and stated that Schwartz, Jannotti and he “run the City Council.” Wald then asked about Jannotti:
“WALD: Would he be interested in doing business with us.
“JOHANSON: I don't know that it's necessary but if you want to we can.
“WALD: I don't know-if it is-you're the best judge of that.
“JOHANSON: I think George is ah-
“CRIDEN: Well, it might not be a bad idea to bring Harry up.
“JOHANSON: We can bring Harry up. Harry's the Majority Leader. He's the-ya know, second in command.
“WALD: Yea.
“JOHANSON: He's got seniority.
“After some additional discussion, the following exchange took place:
“HARIDOPOLOS: Are you acquainted with how much ah, ya know, ah for the favor and for all these assur-assurances, right.
“CRIDEN: Right.
“HARIDOPOLOS: You know how much it is?
“JOHANSON: Sure.
“HARIDOPOLOS: How much is it?
“HARIDOPOLOS: Okay, ah but, of course, ah, we have to have these proper assurances. You do us a favor, we're doin you a favor.
“CRIDEN: Obviously.
“JOHANSON: Sure.
“Johanson gave his assurances and received $25,000. The following exchange took place:
“WALD: And for 25 we've got a friend.
“JOHANSON: Right.”[242]
In the cases of other defendants, the video recording constituted essential evidence because the defendants could be seen taking bribe money from undercover agents, but refused to discuss it, or to discuss it only indirectly. Councilman Jannotti was especially coy:
“Wald
then took an envelope from his briefcase (containing $10,000 cash), handed it
to Jannotti, and asked if “that amount is sufficient.” Jannotti took the
envelope, answering, ‘We've discussed it.’
“HARIDOPOLIS: You know how much it is?
“CRIDEN: Tell him, you can tell him.
“HARIDOPOLIS: How much is it?
“CRIDEN: Tell him?
“JANNOTTI: We won't even discuss it.
“WALD: Ok, but you did discuss it with Howard?
“JANNOTTI: We won't even discuss it.
“HARIDOPOLIS: Is this arrangement please, pleasing to you?
“JANNOTTI: As I say, we won't even discuss it.
“WALD: Ok, well, we've done our business.”[243]
Council President Schwartz was a little less discreet:
“WALD: I can go back and say I met a gentleman. We had a
business deal uh, I've made a friend in
“WALD: And things are taken care of ...
“SCHWARTZ: Right ...
“WALD: Okay, and the sums appropriate and we're in good shape. Okay.
“Shortly thereafter as seen on the videotape, Wald opened his briefcase and, without discussion of the amount, handed Schwartz an envelope (containing $30,000 cash), which Schwartz placed in his jacket without counting. The nature of the commitment Schwartz made was reiterated:
“WALD: The legislative problems we've taken care of?
“CRIDEN: No problem.
“WALD: Okay, that I can, that I, that I got assurance on.
“SCHWARTZ: Right.
“CRIDEN: You have, you have no problem.
“WALD: Okay, the other things can be done through attorneys, but the legislative problems don't exist anymore?
“CRIDEN: That's right.
“SCHWARTZ: No. Do not.
“WALD: Okay.”[244]
One video recording showed Congressman Kelly stuffing cash in his suit jacket pockets, after he tried to persuade the undercover agents to bribe him through an intermediary:
“Kelly agreed to assist the Arabs, and, as recorded on the
video tape, indicated that Amoroso's arrangement with Ciuzio was fine:
“All of this stuff that you've been talking about ··· I don't know anything about that, I'm not involved with it··· Gino and these guys are my friend [s] ··· what you said makes a lot of sense to me ··· I'm gonna stick with ya ··· and you can put me out there on the hill, and when you come back in the morning, I'll still be there···· So this ··· will be helpful to me and ··· maybe ··· down the road sometime, you can do me a favor. But in the meantime, whatever these guys are doing is all right, but I got no part in that···· In other words, ··· your arrangement with these people is ··· all fine···· [Y]ou have my assurance that what you have told me here, sounds like a good thing and ··· I will ··· stick by these people.
After Amoroso received a call from Assistant United States Attorney Jacobs who was monitoring the meeting and who thought Kelly was being “cute,” and after Kelly conferred with Ciuzio, Amoroso sought to clarify Kelly's position. Kelly made it clear that he wanted the money given to Ciuzio:
KELLY: [Y]ou and I gotta ···
learn to talk to each other.
“AMOROSO: Well
I know ···
“KELLY:
[D]on't stumble around, jump in there ···
“AMOROSO: Jump
in there and give it to you?
“KELLY: Sure.
“AMOROSO: Ok.
I was under the impression ··· when this thing was set up ··· that I was gonna
give you something ··· tonight ···
“KELLY: Yeah.
“AMOROSO: Ok,
and that the rest was gonna come ···
“KELLY: Yeah.
“AMOROSO: when
you introduce that.
“KELLY: That's
right.
“AMOROSO: Ok,
is that, is that still ···
“KELLY: Yeah.
Here's ··· what the thing is. Umm ahh just simply deal with Gino [Ciuzio] about
it.
“AMOROSO: Ok.
You want me to give him the money ··· here?
“However, when Amoroso
indicated that all of the money was intended to go to Kelly, and that Ciuzio would be
separately compensated, Kelly was confused:
“I understood that what you were talking about was ··· all there was as far as Tony [sic, should be Ciuzio] was concerned and so as far as I'm concerned, he takes that···· [B]ut I see I didn't know ··· about this other arrangement···· It's ··· all right but I didn't know about that. So lets talk about it some.
“Amoroso explained that he
thought that giving the money directly to Kelly would avoid witnesses, thus
protecting him. Kelly agreed:
“AMOROSO: I
thought that the best way of doing it was ··· a one on one between you and I.
Now to me that sounds like ··· if you're looking for security ··· the best way
of doing it.
“Amoroso then gave Kelly $25,000 in cash and Kelly stuffed the money into the pockets of his suit.”[245]
Although Weinberg and the undercover agents consistently insisted on dealing with the public officials directly, in one case, involving Congressman Jenrette, the best they could do was to pass money through an intermediary and then get telephone confirmation from Jenrette that he received it.[246] Earlier, Jenrette said, “Don’t get me wrong . . . I got larceny in my blood,”[247] after he declined, for the time being, an offer of a $50,000 advance payment for introducing a private immigration bill for the sheik.
Position of Special Prosecutor
Responsibilities
Competencies
Qualifications
The following is a chart distributed at an anti-corruption conference held in Pristina in 2002.
|
Problems |
Solutions |
|
· Lack of transparency in: Ř Drafting the budget in absence of public debate Ř Lack of transparency in decision-making Ř Tenders Ř Misinformation given to citizens with regard to municipal property and the regulations · Low salaries · Unresolved property issues Ř Legalization of illegal construction Ř Unregulated public procurement Ř Lack of documentation and urban plans within the municipalities · Lack of transparency in the work of political and financial committees · Business permits issued by the municipality · Nepotism – Employment of family members · Lack of laws · Lack of monitoring of the local government by citizens · Citizen awareness and education regarding authority of the local governments · Engaging in conflict of interest activities · Government bureaucracy
|
|
|
Problems |
Solutions |
|
· Lack of transparency |
· Adopt a freedom of information law that ensures public access to government information, government decision-making, except when there is a clear reason why this information should not be released |
|
· Financial disclosure |
· Adopt a financial disclosure law. Public employees would be required to disclose on a yearly basis all of their financial interests. This would apply to managers and directors of government run utilities and government funded utilities · Conduct an audit of government owned enterprises to ensure that they are being run properly. |
|
· Procurement law |
· Divide the regulatory function from the operational function; the person or organization responsible for enforcing procurement rules should not be engaging in any procurement activities themselves. |
|
· Tenders |
· Selection committees at the operational level, i.e. the committees that are actually selecting the winning tender, should be staffed by government representatives and independent NGO observers, to open up the process and ensure that the process is being conducted legitimately. |
|
· Independent regulatory agencies |
· Should include some observers from NGOs and civil society, to see that regulations are being properly enforced. |
|
· Transparency |
· Provide public clarity about who within Central government is responsible for what; · Dissemination of information on the organization and operations of Central government to the public so they know whom to address when they have a problem or issue. |
|
· Lack of accountability |
· Creation of an independent Auditor General and creation of departments on anti-corruption within each ministry to police ministries. The Auditor General will have the authority to police the ministries and the government and report directly to the Parliament. Ministries and agencies Central government should be held more responsible to report to an Auditor General or in the case of procurement to a procurement regulator. |
|
Problem |
Solutions |
|
· Conduct of members of Parliament – MPs must be ethical and transparent in all their actions. |
· Code of conduct for MPs, with enforcement power · Establish an Ethics Committee to ensure enforcement · Require financial declarations by MPs and include penalties for providing false information on the financial declaration |
|
· Conflict of interest |
· Create conflict of interest statutes · Establish a gift ban – public officials should not be allowed to accept gifts or they should at least be required to disclose this information to the public and let the public decide |
|
· Corruption of public companies and public officials |
· Bribery statutes and a code of conduct, enforceable for all people that are associated with agencies that take public money; if convicted of an act of bribery, that person would never again be allowed to work in a public agency |
|
· Parliamentary oversight UNMIK and the Executive Branch |
· Question time- MPs can ask questions of the government; · Auditing Committee with the authority to question the executive branch agencies regarding expenditures · Whistle-blower statutes that protect those people who expose corruption and ensure that they do not lose their jobs · Sunset legislation – every two to three years, programs funded by the government should undergo a performance evaluation to ensure that these programs are effective and that money is being well spent through these programs. |
|
· Funding of political parties |
· Create an independent agency to review the actions of parties and candidates |
|
· Business practices – contracts and procurement |
· Assembly should have clear guidelines regarding contracts and procurement; government oversight of this process |
|
· False documents – building permits, IDs, vehicle registrations |
· Incorporate into the criminal code; criminal sanctions, fines and penalties; ensure strict enforcement and adherence to these regulations |
|
· Money laundering |
· Strong regulations and criminal penalties for money laundering violations |
|
· Monopolies and price fixing |
· Adopt adequate legislation on anti-competitive practices, monopolistic practices, price fixing and collusion; requires an oversight function to monitor and police these kinds of activities |
Corruption increases costs for enterprises, and at the same time decreases profits, this decrease in profits decreases the motivation to continue in business and the businessman and may eventually decrease the level of staff or close the enterprise completely.
|
Problems |
Solutions |
|
· Delays in receiving permits · Relations with the tax officials and the corruption involved · Corruption in the tendering process · Lack of urban strategic plan, which results in ambiguities regarding property and awarding of permits; those seeking permits usually try to resolve the ambiguities in a corrupt manner. · Privatization process may be accompanied by a high level of corruption · Lack of effective governance at the municipal level |
· Impose transparent regulations with regard to giving of permits, establishing clearly defined time frames, respecting the established time frames, and providing the reason when a permit is denied. · The business community, i.e. the private sector, needs to point out to government agencies cases of corruption ; businesses that refuse be included in this practice, may pay a high price by being denied access to certain markets · Raise the level of information and quality of corporate governance enterprises, by insisting on the development of management functions within these enterprises. · Clearly define the concepts of partnership and conflict of interest. · Ensure that property rights and the rights of shareholders, especially minority shareholders i.e. those who have fewer shares, are respected. · Develop reporting instruments and internal audit procedures, as well as undergo independent external audits. · Create a web page concerning the issue of corruption. · Encourage dialogue between government and the business community. |
[1] Operation Kosovo is a volunteer project of faculty, students, and staff at Chicago-Kent College of Law, directed by Henry H. Perritt, Jr., Professor of Law and former Dean. Operation Kosovo has been involved in Kosovo since August, 1998, initially providing refugee relief, and then, after the NATO bombing campaign, providing technical assistance for economic development, political party development, privatization, rule of law, and improved legal education.
[2]
Professor Perritt edited this report. The project was directed by Jeffrey R.
LaMirand. Frank Bieszczat and Lisa Atkins wrote major sections. Caleb Fox,
Carrie Weinland, Teymour ElTahry and Chad Mair provided useful contributions.
FBI Special Agents Patrick Murphy and Travis Carlisle, former Chicago Police
Officer Roger Clark, two assistant U.S. Attorneys, who preferred to remain
anonymous, and D.C. Attorney Phil Fox provided helpful background information
on best practices for anti-corruption investigations in the
[3] UNDP, Combating Corruption in Kosovo 13 (2004), http://www.ks.undp.org/Projects/TIK/tik_en.pdf [hereinafter UNDP].
[4] UNDP at 13.
[5] UNDP at 10.
[6] UNDP at 9.
[7] USAID, Corruption in Kosovo 25 (2003), http://www.usaid.gov/missions/ Kosovo/pdf/corruption_in_ Kosovo.pdf [hereinafter USAID].
[8] USAID at 26.
[9] USAID at 8.
[10] BIA (Security Information Agency), Albanian Terrorism and Organized Crime in Kosovo and Metohija (2003).
[11] Robert Neild, Public Corruption: The Dark Side of Social Evolution (2002) [hereinafter “Neild”].
[12] Neild at 5.
[13] Neild at 6.
[14] Neild at 6.
[15] Neild at 9.
[16] Neild at 9.
[17] Neild at 126.
[18] Neild at 202-203.
[19] Neild at 11 (“Little wonder if the view exists among Sicilians that government officials are intruders to be invaded and swindled, not obeyed.”).
[20] Neild at 10.
[21] Neild at 10-11.
[22] Neild at 12.
[23] Neild at 13-14.
[24] Neild at 13.
[25] Neild at 201 (acknowledging that everyone interested in corruption comes up with a similar list).
[26] Neild at 97.
[27] Neild at 97.
[28] Neild
at 108-115, 117-124 (emphasizing high social status of litigators and judges in
[29] Neild at 136-142.
[30] Neild at 143.
[31] Neild at 144-145.
[32] Neild at 145-146.
[33] Neild at 150-151.
[34] Neild at 209.
[35] Neild at 206-207.
[36] Neild at 210.
[37] Neild at 210.
[38] Neild at 6-7.
[39] Bernard
S. Black & Anna S. Tarassova, Institutional Reform in Transition: A Case
Study of
[40]
[41]
[42]
[43]
[44]
[45]
[46] See April Mara Major, Norm Origin and Development in Cyberspace: Models of Cybernorm Evolution, 78 Wash.U.L.Q. 59, 62-63 (2000) (explaining social norms and citing references).
[47] In the Italian legal system, the most important initiator of criminal investigations was not a public prosecutor, as in the United States or Britain, but a specialized judicial official called an “investigating magistrate.” John D. Jackson, The Effect of Legal Culture and Proof in Decisions to Prosecute, 3 Law, Probability & Risk 109, 127 (2004).
[48]
[49] Committee to Re-elect the President.
[50]
[51]
[52] See John Dean, Blind Ambition: The White House Years (1976); Haldeman, at 55-56.
[53] Dean at 168 (reporting White House panic as to whether money could be traced back to the White House or to CRP).
[54] Haldeman, at 57-58.
[55] See generally Carl Bernstein & Bob Woodward, All the President’s Men (1974).
[56] Woodward & Bernstein at 41.
[57] Woodward & Bernstein at 65-66.
[58] Haldeman at 275 (reporting pressure on and wavering by Magruder and Dean).
[59] Haldeman at 207 (reporting suspicion that President erased the recorded material).
[60] H. R. Haldeman, The Ends of Power 204-205 (1978) (reporting on Butterworth disclosure).
[61] See Nader v. Bork, 366 F.Supp. 104 (D.D.C. 1973) (declaring that Special Prosecutor Cox was illegally dismissed but refusing injunction).
[62]
[63]
[64]
[65] See
[66]
[67] Robert
J. Cooley, When Corruption Was King: How I Helped the Mob Rule
[68] 71 F.3d at 650.
[69] Brief
for the
[70]
[71] Shields, Slip op. at 38-39.
[72] Devine, 787 F.3d at 1087
[73]
[74] 768 F.2d 1518 (7th Cir. 1985).
[75]
[76] Jannotti, 673 F.2d at 581 n.2 (describing recruitment of Weinberg).
[77] Jannotti, 673 F.2d at 582.
[78] Much of this description comes from Federal Bureau of Investigation, Operation Silver Shovel, http://chicago.fbi.gov/silvershovel/silvershovel.htm [visited 12 July 2006].
[79]
[80]
[81] The reported cases provide no details on the eavesdropping activity by the cooperating witness or the FBI.
[82] See
[83] See
[84]
[85] Blassingame, 197 F.3d at 278.
[86]
[87] Dansker, 537 F.2d at 45-46; Williams, 333 So. 2d at 552. In the
ABSCAM investigation, one
[88] Dansker, 537 F.2d at 46; Williams 333 So. 2d at 552.
[89]
[90]
[91]
[92] Dansker, 537 F.2d at 45.
[93]
[94]
[95] Williams, 303 So. 2d at 550-51.
[96] Dansker, 537 F.2d at 46.
[97]
[98]
[99] Dowdy, 479 F.2d at 220; Brunshtein, 344 F.3d at 94; Cooper, 594 F.2d at 14.
[100]
[101] Dowdy, 479 F.2d at 220; Brunshtein, 344 F.3d at 95; Cooper, 594 F.2d at 14.
[102] Dowdy, 479 F.2d at 220.
[103] Cooper, 594 F.2d at 14.
[104]
[105]
[106] Kelly, 707 F.2d at 1470.
[107]
[108] The Inspector General of the Justice Department recently issued a report on the FBI’s compliance with Justice Department guidelines on the use of confidential informants and undercover agents, and on the use of body wires. http://www.usdoj.gov/oig/special/0509/.
[109] See § III. A.
[110] Neild, supra note 11, at 9 [hereinafter “Neild”].
[111] Neild at 6.
[112] This category includes goods that infringe copyrights, patents, trademarks or misappropriate trade secrets.
[113] An informal, short-term investigation by coauthor LaMirand in early June, 2006, however, suggests that such bribery is not common with respect to the kiosk prohibition. See [LaMirand essay on Operation Kosovo Web site].
[114]“ Kosovo Budget,” USAID http://www.usaid.gov/policy/budget/cbj2006/ee/ko.html
[115] Law No. 2004/34, Article 37.1.
[116]
David J. Gottlieb, A Brief History of the
Independent Counsel Law, 47 U.
[117] 28 U.S.C. § 599 (2000).
[118] 28 U.S.C. §§ 591(a),(b) (2000).
[119] 28 U.S.C. § 592(b)(1) (2000).
[120] 28 U.S.C. § 592(c)(1) (2000).
[121] 28 U.S.C. § 592(g) (2000).
[122] 28 U.S.C. §§ 49(a),(d) (2000).
[123] 28 U.S.C. § 593(b)(1) (2000).
[124] 28 U.S.C. § 593(c)(1) (2000).
[125] 28 U.S.C. § 593(c)(2)(B) (2000).
[126] 28 U.S.C. § 594(a) (2000).
[127] 28 U.S.C. § 594(h)(1) (2000).
[128] 28 U.S.C. § 595(a) (2000).
[129] 28 U.S.C. § 596(b) (2000).
[130] 28 U.S.C. § 596(a)(1) (2000).
[131] 28 U.S.C. § 596(a)(3) (2000).
[132] Katy J. Harriger, The History of the Independent Counsel Provisions: How the Past Informs the Current Debate, 49 Mercer L. Rev. 489, 490 (1998).
[133]
[134]
[135]
[136]
[137] From Watergate to Whitewater: History of the independent counsel, CNN, June 30, 1999, http://www.cnn.com/ALLPOLITICS/stories/1999/06/30/ic.history/
[138]
[139] Harriger at 513.
[140]
Morrison v. Olson, 487
[141] From Watergate to Whitewater: History of the independent counsel, CNN, June 30, 1999, http://www.cnn.com/ALLPOLITICS/stories/1999/06/30/ic.history/
[142] Harriger at 504.
[143] UNMIK/REG/2001/9, §§ 9.3.8, 9.3.9, 9.3.10.
[144] UNMIK/REG/2003/26, Article 257, paragraph 3; Article 260, paragraph 7.
[145]
[146]
[147]
[148]
[149]
[150]
[151]
[152]
[153]
[154]
[155]
[156]
[157]
[158]
[159] UNMIK/REG/2003/26, at Article 258, paragraph 1, sub-paragraph 3.
[160] The Attorney General’s Guidelines on Federal Bureau of Investigation Undercover Operations, §§ IV.B., IV.C., (May 30, 2002).
[161]
[162]
[163] UNMIK/REG/2003/26, Article 260, paragraph 8, sub-paragraph 2.
[164] The Attorney General’s Guidelines Regarding the Use of Confidential Informants (May 30, 2002).
[165] The Attorney General’s Guidelines Regarding the Use of Confidential Informants, § II.A.1, (May 30, 2002).
[166]
[167]
[168]
[169] UNMIK/REG/2003/26, Article 298.
[170]
[171]
[172]
[173]
[174]
[175] UNMIK/REG/2002/6 § 2.3.
[176]
[177]
[178]
[179]
[180]
[181]
[182]
[183] 18 U.S.C. § 2518(3)(a) (2000).
[184] UNMIK/REG/2003/26, Article 258, paragraph 1, sub-paragraph 3.
[185] UNMIK/REG/2003/26, Article 258, paragraph 2, sub-paragraphs 1,4,5.
[186] UNMIK/REG/2003/26, Article 258, paragraph 1, sub-paragraph 2.
[187] UNMIK/REG/2003/26, Article 258, paragraph 4.
[188]
[189] 18 U.S.C. § 2511(2)(c) (2000).
[190] 18 U.S.C. § 2516(1) (2000).
[191] 18 U.S.C. § 2518(7) (2000).
[192] 18 U.S.C. § 2518(7)(a) (2000).
[193] 18 U.S.C. § 2518(7) (2000).
[194] UNMIK/REG/2002/18 § 3.2.
[195]
[196]
[197]
[198]
[199]
[200]
[201]
[202] 31 U.S.C. § 717(b)(1) (2000).
[203] UNMIK/REG/2002/18 § 3.2.
[204]
[205]
[206]
[207] 31 U.S.C. § 719(b)(1)(A) (2000).
[208] Law No. 2004/34 Art. 14, 23(a).
[209]
[210]
[211]
[212]
[213]
[214]
[215]
[216] 5 U.S.C. App. 3 § 4(a) (2000).
[217] 5 U.S.C. App. 3 § 2 (2000).
[218] Law No. 2004/34 Art. 1
[219]
[220] 5 U.S.C. App. 3 § 3(a) (2000).
[221]
See “Implementation of Anti-Corruption Plans in South-Eastern
[222] See U.S. Department of State Trafficking in persons
report June 14, 2004 www.state.gov/g/tip/rls/tiprpt/2004/33202.htm.
[223] UNMIK Customs www.unmikcustoms.org
[224] UNMIK/REG/2001/20 § 2.1.
[225]
[226]
[227]
[228]
[229]
[230]
[231] 18 U.S.C. § 3521(a)(1) (2000).
[232] UNMIK/REG/2001/20 § 1(b).
[233] 18 U.S.C. § 3521(a)(1) (2000).
[234] UNMIK/REG/2001/20 § 3.1.
[235] 18 U.S.C. § 3521(b)(1) (2000).
[236] www.cia.gov/cia/publications/factbook/rankorder/2119rank.html;
www.sok-
Kosovo.org/publications_population.htm; Risdon N. Slate, “The Federal
Witness Protection Program: Its evolution and continuing growing pains”, www.questia.com/pm.qst?a=o&d=5000590742.
[237] “Human Rights Towards a New Civic Education,” Taro Komatsu (UNMIK Regional Education Officer) http://www.unmikonline.org/pub/focuskos/dec01/focuskmunaffair4.htm
[238]
[239]
[240]
[241] Jannotti, 673 F.2d at 585.
[242] Jannotti, 673 F.2d at 583
[243]
[244] Jannotti, 673 F.2d at 586-587 [internal citations to transcript omitted]
[245] United States v. Kelly, 707 F.2d 1460, 1466-1467 (D.C.Cir. 1983) (reversing district court’s disapproval of ABSCAM investigative techniques as entrapment and reinstating conviction of Congressman Kelly); see also United States v. Weisz, 718 F.2d 413, 430-431 (D.C.Cir. 1983) (denying motion to exclude Kelly “money stuffing” scene from evidence because of likelihood it would inflame jury against co-defendant). Weisz was convicted of arranging meetings between undercover agents and congressmen for the purpose of bribing them.
[246] Jenrette, 744 F.2d at 820 (describing recorded telephone call).
[247]