The EPAC/EACN. An approach to these organizations and the importance of the participation in them of the AVAF

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EPAC (European  Partners against Corruption) and EACN (European contact-point network against corruption) are two independent forums for anti-corruption and police authorities and bodies, united in the common objective of preventing and combating corruption. While EPAC has been around since 2004, EACN was founded in 2008, following the EPAC model.

The EPAC is composed of  anti-corruption authorities and police oversight bodies  from member countries of the Council of Europe.  The  EACN, a more formal network established by a decision of the Council of the European Union, brings together the anti-corruption authorities of the Member States of the European Union.  In any case, both networks work together as one, given their common mission and goals. Most anti-corruption authorities are also, in fact, members of bothnetworks.  The financial resources available to both networks are supported by voluntary contributions from members, observers, official international programmes and other sources of funding such as those from the EU.

With the overall objective of strengthening cooperation, the  EPAC/EACN provides a platform for practitioners to exchange experiences, information and concerns in the field of anti-corruption and policing, assist each other and cooperate across national borders, both in terms of knowledge and practical experience. Its main objective is to contribute to police oversight and the global fight against corruption through dialogue and joint work, respecting the legal systems of each country.  Consequently, the EPAC/EACN is committed to  promoting effective police and anti-corruption systems thatare based on ethical standards and ensure respect for the rule of law and human rights.

The mission of the EPAC/EACN is to:

  • Establish, maintain and develop contacts between specialized anti-corruption and police oversight authorities.
  • Promote independence, impartiality, legitimacy, accountability, transparency and accessibility in all systems created and maintained for independent oversight of police and anti-corruption work
  • Promote international legal instruments and mechanisms from a professional perspective.
  • Support the development and promotion of common working standards and best practices for police oversight bodies and anti-corruption authorities.
  • Provide a platform for the exchange of information and experience on developments in police oversight and anti-corruption.
  • Provide support to other countries and organizations seeking to establish or develop oversight mechanisms and anti-corruption authorities.
  • Cooperate with other organizations, authorities, networks and stakeholders in the fulfillment of the above objectives.

At the moment the EPAC brings together 90 anti-corruption authorities and police oversight bodies of the Council of Europe and member states of the European Union, is the largest network in Europe in the field of anti-corruption and is a special organization because it brings together different types of services, agencies, organizations, which represent the anti-corruption systems of each country. The EACN comprises almost 60 anti-corruption authorities from EU Member States. The European Anti-Fraud Office (OLAF) is a member of both networks, while the European Commission, Europol and Eurojust maintain an ongoing relationship with the activities of the EACN. The newly established European Anti-Corruption Prosecutor’s Office (EPPO) has joined both organisations as an observer.

AVAF has been a member of the EPAC/EACN since the 18th Annual Professional Conference and General Assembly, which was organised by the Austrian Federal Anti-Corruption Office (BAK) and which took place from 22 to 24 October 2018 in Rust, Austria. Along with the AVAF,  several Spanish authorities are members  of   the EPAC/EACN:  the Anti-Fraud Office of Catalonia (OAC), the Special Prosecutor’s Office against Corruption and Organized Crime, the Inspectorate of Personnel and Services of the State Police Agencies (IPSS) under the Ministry of the  Interior, the Internal Affairs Division of the Mossos de Escuadra  and  the Office for the Prevention and Fight against Fraud of the Balearic Islands

Each year, the EPAC/EACN holds  a conference and   a general assembly to which the members of both networks are invited and in which they expose, among other issues, the way of working of the different anti-corruption and police surveillance authorities, the situation or difficulties in which they find themselves in certain countries or the solutions adopted in the field of anti-corruption in certain practical cases those who have had to face. In addition, there are different active working groups for the development of concrete projects that  organize seminars  and webinars to  present and share their progress and results, to which all members of the EPAC / EACN are invited, whether or not they are part of that specific working group.

On 23 and 24 November 2022, the 21st Annual Conference and General Assembly of the EPAC/EACN was held in Chisinau, Moldova, in which the Valencian Anti-Fraud Agency was present.

The conference showed  that the problems of the war in Ukraine, inflation and the disinformation associated with it, represent a situation of exceptional vulnerability that accentuates the risks of corruption.  Two strong ideas were also put forward which are worth highlighting.  Aof great interest to EU candidate countries: corruption deters foreign investment;  and, the other, which must be kept in mind by  all anti-corruption authorities and  by all social agents: it  is very difficult to build a system to fight corruption and very easy to destroy it.

AVAF’s participation in these international networks undoubtedly provides it with a space to share experiences with institutions with extensive background and experience in the fight against corruption.  Sharing problems and situations that occur in other territories, as well as ways to address them by other agencies, definitely enriches our institution and helps us implement best practices in pursuit of our final and common goal which is the prevention and fight against fraud and corruption.

Mª José Moragues Faus

Head of Unit of the analysis and investigation of the Valencian Anti-Fraud Agency

Urban planning and the risk of corruption

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Under the slogan “Urban planning and the risk of corruption” the Agency for the Prevention and Fight against Fraud and Corruption of the Valencian Community commemorated on December 12, for the sixth time, the International Day of Fight against Corruption. A handful of chosen experts haveblended the very important role of citizens in the face of the phenomenon of urban corruption that, in an organized way, can and should, defend the public space of which we are all legitimate owners. They told us first-hand cases in which the fight against this scourge, despite being very hard, manages not only to reverse situations, but also to impose deserved sentences on those who grossly break the law for their own benefit. We also had the opportunity to learn about the legal vision of this unfortunate outrage against the common good. The legal good protected in urban corruption is the rational use of the environment as a limited natural resource and the adequacy of its use to the general interest. It is a community asset that does not have a specific owner, but its injury harms, to a greater or lesser extent, an entire community, sincecorruption scandals linked to urban planning have an enormous impact: economic, environmental and social. Among the causes of this phenomenon is the excessive discretion with which the City Councils have exercised and exercise the planning function. Urban planning agreements with individuals that give them a decisive role, real estate developments as a breeding ground, or civil servant technostructures, either by abandoning their functions, or actively serving as a transmission belt. The NGO Transparency International has pointed out that the area where corruption is highest in Spain is the local one. In these governments, especially in those located on the coast or in the vicinity of large cities, the qualification of urban land is the origin of the greatest cases of corruption. There are serious problems in at least four major areas: regulatory, bureaucratic, political and judicial. Hyper-regulation, or sometimes even tricky regulation, leaves the door open to arbitrariness, confusion and opacity, arrogance in decision-making and bad governance. The opening of activities and their operation without the granting of the appropriate licenses turning a blind eye or the excessive delay of authorizations in simple issues that should be resolved more effectively, are dysfunctions of the system that need to be corrected. Training and information, both of civil servants and of elected and unelected officials, are essential to prevent deviation from any behavior. The consequences are not trivial: possible crimes of prevarication, embezzlement of public funds, bribery, money laundering, criminal organization, influence peddling, illegal financing of political parties; or at the very least, administrative sanctions, which must be proportionate, dissuasive and effective; In addition to those consequences that, despite being intangible, have an even more harmful impact: reputational damage, the distrust of citizens in their institutions and those who govern them, the breakdown of the principle of equality and the disconnection of the common good and the general interest for the benefit of a few. We cannot deny the slowness of the judicial process, with cases that last an average of eight years; justice that is burdensome, and that cannot be afforded by the average citizen. In addition, often tangled: The matter turns out to be contentious when it was raised through criminal proceedings, or vice versa, if the criminal action was raised, the facts end up not conforming to the elements of the type, since not everything that is corruption is included in the Criminal Code. The Criminal Code would also require a thorough reform, as well as the procedural law. The complexity of these matters makes it impossible for them to be adequately addressed, with the scarce personal and material resources available. From our point of view, corruption crimes should be known to a specialized justice, as has happened with issues as particular and reprehensible as gender violence. It is curious that, although urbanity and urbanism, come from identical etymology, urbs-urbis in Latin, their most common current meanings are extremely distant. According to the RAE, urbanity is behavior consistent with good manners that demonstrates good manners and respect for others. However, according to the RAE, urbanism is the planning of the buildings and spaces of a city; the concentration and distribution of the population in cities. Given this and with all my respect to academics, it is preferable in this case to go to Wikipedia, which defines urbanism as the study of how the inhabitants of urban areas, towns and cities, interact with the built environment. The free encyclopedia adds the need for urban planning, focusing on the physical design and management of urban structures. As a whole, it studies the social, economic and environmental relations that take place within the urban phenomenon. We owethe term urbanism to the Catalan civil engineer Ildefonso Cerdá, in the late nineteenth century. A multifaceted man, he wrote the General Theory of Urbanization (1895), a pioneering work for which he is considered one of the founders of modern urbanism. His most important project was the urban reform of NINETEENTH-CENTURY Barcelona through the Cerdá Plan, with which he created the Eixample neighborhood. According to Cerdá, urban planning is the planning of the various places and environments in which material, sentimental and spiritual life takes place in all its manifestations, individual and collective, and includes both urban and rural settlements. The well-being of the population, resident or foreign, constitutes the ultimate object of urbanization. Cerdá said: “Here are the philosophical reasons that induced me and decided to contribute the word urbanization, not only to indicate any act that tends to group the building and regularize its operation in the group already formed, but also the set of principles, doctrines and rules that must be applied, so that the building and its grouping, Far from compressing, distorting and corrupting the physical, moral and intellectual faculties of social men, they serve both to promote their development and vigour and to increase individual well-being, the sum…

Embezzlement reform will give carte blanche to impunity

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On December 9, 2022, the beginning  of the celebration of the twentieth anniversary of the UN Convention against Corruption was  commemorated.    And precisely this signon December 9, forgetting the progress andbenefits of recent decades in the fight against corruption, has been the moment chosen to introduce into the parliamentary debate a very ill-advised proposal  to reform the crime of embezzlement.

The proposed amendment seeks to  replace the  current regulation of  embezzlement, which is currently configured in the broad concept of  unfair administration of public assets, to return to the limited structure and previous drafting of 1995, which   only  It consideredpunishable the concrete appropriation of public property.

The return to the 1995 newsroom is a real step backwards in the fight against corruption, since it hastaken a clean sweep of all the advances that have been taking shape in the legal regulation of embezzlement over the years, particularly since the United Nations Convention.

1/ Dysfunctions of the 1995 regulation.

The current regulation of embezzlement, of 2015, is upone a  technical improvement a-legal of  notable importance, it should be noted that  the return to the outdated regulation of 1995 will mean going through the disappointment of  the numerous judicial procedures in which, although the existence  of acts of corruption had been proven.  However, it was not  possible  to condemn the technical shortcomings of that regulation.  An example is  the scandal of the municipal funeral home of  a City Council that, valued at more than 7 million euros, was sold at public auction for the shameful amount of € 0.60. And despite the seriousness of the fact, the Supreme Court could not convict, since the crime of embezzlement in the 1995 wording did not typify cases such as the sale of public assets below its price. On the contrary, the current regulation of 2015, in its concept of unfair administration, does allow the punishment of this type of corrupt actions. 

2/ The profit motive and attenuated punitive duality.

Nor is it correct to return tothe outdated concept of profit in embezzlement.  In this type of corruption, the decisive factor is not that  the authority or official profits or tries to benefit a third party, but the damage caused to    the  citizenry.  Embezzlement is a crime of damage to  the administration and public property, which excludes the need  to include a profit motive.

And it is also a  mistake to try to establish atype  of mitigated embezzlementfor those cases in which, without there being a spirit of appropriation, the public patrimony is destined to private and alien uses.   Thediversion of the public from its destination, for the benefit of private uses and those outside the public function,   should not be deserving  of an attenuated penalty. Thus, the technical coldness of criminal typicity deserves in the present case to be put in front of the mirror of  reality and the concrete assumptions of everyday life. This is the case, among other common examples, of a  mayor who cedes the use,  to a private mercantile for  disco activity, of  the ground floor of a public building, initially projectedor destined for a municipal nursery school. The action, very serious,  with the amendment of reform of embezzlement would be configured with a penalty of such a sunor 6 months in prison.

3/ The penalty.

The amendment for the modification of the crime of embezzlement aims to return to the typical regulation of 1995 but maintaining the penalties of 2015,  which does not seem dissuasive or successful and this because  the penalty set in the  comparable legal systems of the European Union turns out to be more severe, a path that should be followed in the internal system.

Thus, under French law the offence comparable to embezzlement, ‘la soustraction et détournement de biens’, is punishable by ten years’  imprisonment;  Article314 punishes the appropriation by an official of money or movable property – both public and private – with imprisonment of three to ten years.

4/ Conclusions.

The intended modification of the crime  of embezzlement means giving carte blanche to impunity in embezzlement, limiting the possibilities of the system fighting against this scourge of democracy.

The return to the 1995 regulation of the crime of embezzlement will mean that numerous actions, which are contrary to the correct administration and the proper use of public assets, will not be duly prosecuted, which will affect the quality of services for citizens, since corruption entails a decrease in the quality of education,  health, social protection and other public sector activities.

 

Juan Vega

Lawyer of the Valencian Anti-Fraud Agency

*This article was published in the newspaper “El Mundo” in its national edition and can be consulted here

https://www.elmundo.es/opinion/columnistas/2022/12/14/6398bb0efc6c834f048b45e5.html